Here we go again.
Less than 2 years after the previous Government reversed its decision to increase the sentencing powers of the Magistrates' Court, the incumbent Government is rumoured to be considering the reinstatement of those powers.
As there's a bit of history to this, I'm going to break today's article down into chronological order.
Increased sentencing powers introduced, May 2022:
The previous (temporary) increase in sentencing powers commenced on 2nd May 2022.
The measures were intended to clear the backlog of cases awaiting disposal at the Crown Court as a result of the covid-19 pandemic. During the pandemic the work of both Magistrates' and Crown Court was severely impacted. Crown Court trials were particularly hard hit, with some still awaiting completion to this day.
In an effort to ease the strain on the Crown Court, the Government of the day decided to increase the sentencing powers of the Magistrates' Court. This change would enable to Magistrates' Court to dispose of a greater proportion of cases, which prevented them being added to the Crown Court backlog.
The sentencing powers of the Magistrates' Court was increased to 12 months' custody in respect of a single either way offence. This was an increase of 6 months' custody. There was no change to the 12 months' maximum available to the court when it sentenced multiple either way offences.
The increased powers only applied to those convicted of an an either way offence committed on or after 2nd May 2022. It only applied to those likely to receive between 6 months' and 12 months' custody, because offences requiring a longer sentence were still sent to the Crown Court.
Because of those two caveats, the number of offenders actually handed an increased sentence by the Magistrates' Court was infinitesimally small. In fact I am not aware of a single case, despite this still being a regular topic of retiring room conversation.
Even so, there were plenty of fingers wagged in disapproval at the prisons becoming full of Magistrates' Court disposals. The suggestion, based more on ignorance than fact, was that the reckless sentencing of Magistrates was stacking prisoners three deep in cells across the land.
It was absolute nonsense, but because of the high profile and academic standing of some finger waggers (and finger wagging bodies) people mistakenly took it is gospel. Critics conveniently forgot, given the nature of the offences in question, that District Judges were behind most of the sentencing decisions anyway.
Increased sentencing powers suspended, 31st May 2022:
At the start of March 2023 it became apparent, as it is today, that the prisons were getting rather full. The Magistrates' Court was helping to ease pressure on the Crown Court, but because of the faster turnover of cases there were, at this stage, more offenders heading to prison from the Magistrates' Court than there were from the Crown Court.
The Government decided to ease this additional problem by suspending the increased sentencing powers of the Magistrates' Court. This would, of course, mean increasing the backlog of Crown Court cases once again - a case of heads you win, tails I lose.
In mid-March 2023 the Lord Chief Justice, Lord Burnett of Maldon, wrote to Magistrates: "I would wish to reassure Magistrates that the Government's decision is no reflection on the way in which the new powers have been used by Magistrates.
"The Lord Chancellor has also written to assure me of this. As the Government recognises, it was expected that cases would move through the Courts more quickly as Magistrates' Courts can dispose of cases faster than the Crown Court, freeing up an anticipated 1,700 Crown Court sitting days. That in turn will have increased the prison population."
He concluded: "I very much hope it will be possible to recommence the power in the future so that the Magistrates' Courts can again play as full a role as possible, including in supporting the reduction of Crown Court backlogs.
"The Lord Chancellor has confirmed to me that this will be kept under review."
The increased powers were suspended on 31st May 2023.
Proposals to reinstate the increased sentencing powers:
It would appear that the time has now come for Ministers to look afresh at the situation. The focus this time is not easing the workload of the Crown Court, but relieving pressure on the prison system.
The overwhelming majority of cases entering the criminal justice system, greater than 90 percent, are dealt with to completion at the Magistrates' Court. The Magistrates' Court also decides whether to grant bail to defendants or remand them in custody pending either their trial or sentencing, be that at the Crown or Magistrates' Court.
A trial in the Magistrates' Court can usually happen within 2 or 3 months; at the Crown Court it is more like 6 to 8 months (often longer). Sentencing at the Magistrates' Court can usually happen within a fortnight (often much quicker); cases sent to the Crown Court are usually sentenced a month later.
By giving the Magistrates' Courts greater sentencing powers, it means more either way offences can by tried and sentenced at the Magistrates' Court. This should result in defendants being remanded in custody for a short period of time, thus relieving the strain on prison places.
A justice source (whatever that is) told the Telegraph: "It's a smart thing to do but it is a gamble. All the modelling suggests it will lead to a surge in the prison population but the number of remand prisoners is one of the principal reasons for overcrowding."
As I have said on several previous occasions, I am totally indifferent to the idea of increased sentencing powers. Contrary to what people might say, the court is not dishing out custodial sentences like there's no tomorrow. The court actually imposes very few custodial sentences. Those it does are predominantly in relation to summary offences.
Should the powers be reinstated they will be a useful tool for sentencing those offenders right on the cusp having their cases sent to the Crown Court. It will mean their cases are sentenced much faster, which should reduce any unnecessary time spent on remand.
Defendants pleading not guilty to an either way offence will still be able to elect a Crown Court trial if they wish to do so.
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