Second Time Lucky? Lord Chancellor Announces Increased Sentencing Powers for Magistrates’
In May 2022 the then Conservative government doubled sentencing powers for Magistrates’ from 6 to 12 months, reasoning that the move would “provide additional capacity to drive down the backlog of cases in the Crown courts over the coming years”. In 2022 the Crown Court backlog stood at 59,000. The move was highly criticised at the time, and the government abandoned the initiative.
Less than 18 months later the Labour Government’s Lord Chancellor, Shabana Mahmood, has re-introduced the measure confirming plans to allow Magistrates’ to issue custodial sentences for up to 12 months for a single offence. Such powers will come into force on 18 November 2024.
This time around the Government’s focus is on addressing the prisons overcrowding crisis, with the operational capacity of the prison estate (in the week ending 18 October 2024) running at just under 98%. According to yesterday’s press release it is the Government’s view that increasing Magistrates’ sentencing powers will result in a decrease in the 17,000 individuals being held in prison awaiting a trial, whilst also addressing the Crown Court backlog.
Decreasing the prison population
According to the Government, Magistrates will be “fully trained…in order to deliver longer sentences effectively”, granting them the ability to deal with those remand cases that were previously outside their jurisdiction. How delivering “longer sentences effectively” will result in a decrease in the prison population waits to be seen. Although considering the evidence, the odds are readily stacked against the proposal:
As David McNeill, Law Society director of public affairs, made clear “The reason that increased sentencing powers for magistrates was dropped previously was because it worsened the pressure on prisons. This is because magistrates tend to jail people for longer than the Crown court and more quickly.”
Not only does the evidence (strongly) suggest that increased sentencing powers result in more people being convicted to longer sentences, but the Ministry of Justice’s own research has found that custodial sentences of under 12 months “are associated with higher levels of reoffending than sentences served in the community”. The Government’s policy is irrational in terms of its objectives. Higher custodial sentences and an increase in reoffending will create a rotator belt of individuals spending more time in prison, and for longer.
Decreasing the court backlog
Mark Beattie, the national chair of the Magistrates’ Association has said “by being able to take on this additional responsibility and hear cases that carry a maximum sentence of 12 months, our members will be able to prevent an increase in the backlog of cases in the crown courts, enabling the most serious offences to be dealt with quicker in crown courts; speeding justice for all”. The Crown Prosecution Services’ most recent quarterly statistic puts the Crown Court’s caseload at 81,923.
The new Magistrates’ sentencing provision will only affect those charged with an either-way offence (an offence that can be heard in either the Magistrates’ or the Crown Court). As the Magistrates’ court already has the power to sentence individuals who are charged with two either-way offences to a sentence of 12 months’ imprisonment, the changes only apply to those charged with one either-way offence and/or who do not choose to elect a trial in the Crown Court.
While the Government are confident that the new provisions will decrease the Crown Court backlog, there is – in reality – a strong likelihood that defendants will choose to elect a trial by jury, rather than risk a higher sentence in the Magistrates court. It is also unclear if the Government have considered the likely increases in appeal (of both conviction and sentence) to the Crown Court, which the Criminal Bar Association (CBA) note would duplicate work; not reduce it. The Government run the risk of increased Crown Court cases, and further delays – with some already being listed for 2027. It is hard to reconcile this with the Government’s notion of victims getting “the justice they deserve sooner”.
If the powers do result in an increase of cases and sentencing in the Magistrates’ court the question remains, how quickly will they be heard? The number of outstanding cases in the Magistrates’ Court in February 2024 stood at 382,972, while the courts themselves continue to close; since 2010 over 50% of Magistrates’ courts across England and Wales have been shut, leaving the number at just 164.
What other options are there?
Just over one month ago four of the most senior former judges in England and Wales called on the Government “to reverse the trend of imposing even longer sentences” with the prison minister, Lord Timpson, describing a “societal addiction” to punishment, leading to sentences that are too long.
Surely it is time to stop recycling ideas that have been proven not to work. By increasing the sentencing power of Magistrates’ it is clear that this Government have not yet learnt from the lessons of their predecessors. They have failed to address the underlying issues of offending and reoffending, the reasons for the prolific backlogs in our courts’ and the overcrowding in our prisons.
As the CBA note “This is a knee-jerk reaction, done without consulting, once again, the criminal barristers or solicitors who deal every day with these cases. The government must stop simply tinkering around the edges of a system in the midst of collapse. We need to have a collaborative and sensible approach to the impact of sentencing when prisons are already full.”
Three years ago Sir Christopher Bellamy KC’s independent report into criminal legal aid was published. The report confirmed that the criminal justice system had been underfunded for many years and that an immediate “lifeline” of 15% funding uplift was needed to keep the struggling system running. It is clear that the time is now. To quote the CBA “No more sticking plasters. No more lurching from crisis to crisis.”
Justice on the cheap, is no justice at all.