Ministry of Justice Reverse Increase In Sentencing Powers Of Magistrates

On 2nd May 2022, the sentencing powers of magistrates were increased from six months to one year, in an attempt to ease the backlog in the courts. At the time, the Crown Court backlog stood at 59,000, and the magistrates’ court backlog was at 332,000.

This increase was designed to keep more cases in the magistrates’ court, by removing the need to send a case to the Crown Court.

This move was highly criticised at the time, with magistrates’ courts themselves being referred to as “a lesser form of justice”.

The Howard League for Penal Reform noted that:

“Custodial sentences of less than twelve months do little more than wreck peoples’ lives and result in higher rates of reoffending. The Ministry of Justice’s own research shows that they don’t work and don’t keep the public safe. Encouraging the magistrates’ courts to hand out even more short sentences is the opposite of evidence-based policy.”

Bruno Min, Legal director of Fair Trials, a criminal justice watchdog, stated:

“It is over a decade of underfunding of the court system and failed criminal justice policies that have brought the system to its knees. But rather than tackling these challenges head on, the Government is proposing counterproductive measures to imprison more people for longer.”

Unsurprisingly, the warnings have rung true, and the prison population has soared. It is said that prisons have just 600 cells of capacity remaining, and 400 police cells have been made available to house those who should be held within the prison estate.

The lack of prison capacity was considered by the Court of Appeal in r v Arie Ali, in their judgment dated 3rd March 2023. They considered whether a sentence of immediate imprisonment ought to have been suspended, given the exceptional circumstances.

One exceptional factor cited by the court include the very high prison population. They note the use of police cells to house prisoners rather than prisons, announced as ‘Operation Safeguard’ on 30th November 2022, and quote from Dominic Raab’s letter to the Lord Chief Justice dated 24th February 2023, regarding the impact of prisons operating so close to capacity, in which he noted crowded conditions, reduced access to rehabilitative programmes and being imprisoned further away from home.

The Court of Appeal concluded that the lack of capacity in prisons is a factor which sentencing courts should take into consideration when deciding if a sentence can be suspended, noting that this will in principle apply to shorter custodial sentences. Mr Ali’s sentence of immediate imprisonment was quashed, and a suspended sentence was imposed instead.

Whilst of course there are a variety of factors impacting the number of people imprisoned in England and Wales, it cannot be purely coincidental that when magistrates’ sentencing powers were increased, the prison population rocketed, and now we have overflowing prisons, the Court of Appeal themselves are setting precedents stating that defendants should not be given immediate imprisonment, and the Ministry of Justice are quietly removing the additional powers.

We welcome the reduction in magistrates’ sentencing powers, but maintain that this does not go far enough, and believe that in order to tackle the overwhelming crises in the criminal justice system, a change in approach is required.

Short sentences do nothing but uproot the life of a defendant, resulting in them losing their home, their job, their benefits, their support network. They are too short for any meaningful work to be completed to address any offending behaviour, and short term prisoners are not eligible for most probation courses.

It costs around £32,000 per year to imprison someone. Rather than increasing custodial sentences and further penalising those who are often the most deprived and vulnerable in society, these resources would be better spent providing proper, holistic support services in the community.

This prison capacity crisis, and the U-turn on magistrates’ sentencings powers, demonstrates the danger of a Justice Minister whose constant refrain is ‘longer sentences’ and ‘harsher punishments’, with no thought given to the consequences of blindly pursuing slogans.

There is a rumour that incoming Justice Ministers are told one thing: ‘do whatever you want, but don’t mess up the prisons’. Mr Raab seems to be failing in even this most basic of tasks.

If you are facing a criminal prosecution which may involve the imposition of a custodial sentence, call our Criminal Defence experts on 0330 822 3451 for advice, or request a call back.