Courting Trouble: Should Magistrates Have Been Given Extended Sentencing Powers ?

 

What will be the effect of giving Magistrates Courts the power to sentence people to prison for a year rather than six months for a single offence? The measure has been on the statute book since 2003 but despite regular urgings from the Magistrates Association has remained unimplemented until last week. The Government hopes the move will reduce pressure on the Crown Courts so helping clear the backlog of serious cases.

Just how much it will do so is unclear. Justice minister James Cartlidge told Parliament in January that the extra powers for lay justices would save nearly 2,000 Crown Court sitting days per year. He wrote to the Justice Committee on 29^th April that the estimate was 1,700. The impact assessment (IA) he signed off the previous day actually says that “after applying an optimism bias of 20% the sitting day figure reduces further to 1,400.”

But what about the effect on the size of the prison population?

The answer is even less clear. The IA assumes that sentences given by magistrates with their extended powers will be the same as those which would have been given by Crown Court Judges and anticipates no change in prison numbers. But why then should the Government go to the trouble of legislating a “varying power” to enable ministers to reinstate the 6-month limit?

They say it’s necessary “to ensure flexibility in the future, should significant unsustainable pressures arise …. such as a significant increase in the prison population, or a change to the election {for trial} rate increasing the pressure on the Crown Court”.   

The IA acknowledges that cases will be completed more quickly in the Magistrates Courts, so defendants who get a jail sentence will enter prison sooner. The MoJ reckon this will only bring forward, rather than add, costs to the Prison Service. But presumably there may be operational pressures resulting from increased receptions in the short term, although many of those involved would have been remanded in custody awaiting Crown Court sentencing under the old arrangements. 

Of greater concern is the risk that magistrates could sentence more harshly than Crown Court judges, which would lead to an increase in prison numbers. The IA calculates that 550 additional prison places will be needed if immediate custodial sentences increase by 2 months and a third of suspended sentences were in future to result in a jail term.

How likely are magistrates to use their new powers in this way? The IA says that because the cases will be the most serious magistrates see, they may sentence at the top end of the range available to them. Conversely, cases would be the least serious in Crown Court, so comparative sentences may be lower.

While this looks plausible, it doesn’t seem exactly evidence based. In a 2019 report the Justice  Committee backed giving magistrates the extended powers “subject to establishing a positive evidential basis for doing this from a suitable modelling exercise on the effects of such a step”. The government demurred, concerned about the potential knock on effects “and the difficulties of modelling these”.

In a feeble response to a FoI request last year from Penelope Gibbs at Transform Justice, the MoJ confirmed that it had done modelling and made impact estimates, but locating, retrieving, and extracting the information would be too costly to provide it. Creating the “varying power” for use should  “any unsustainable adverse impacts materialise” suggests the MoJ’s modelling might have predicted some of these. But they won’t say.

So, what might happen over the coming months?

In 2019 the Senior District Judge told MPs she would be “very cautious” about increasing magistrates powers and “a bit worried that there would be an increase in prison sentences”.  

By contrast Justice Committee Chair Bob Neill took the view during the passage of the Judicial Review and Courts Bill that  “there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be”. The experience of ex magistrate MP Andy Carter is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence.

The MPs colleague James Daly wishes it were otherwise arguing that “we should be imposing deterrent sentences rather than the incredibly lenient sentences that are often handed out by magistrates because they do not feel that they have sufficient powers or length of sentence to replicate the seriousness of the offences that they are facing”.  And this is precisely the danger.

The Government say they’ll monitor the impact on average custodial sentence lengths and the prison population rates as well as the court backlog. They’ll also see whether more defendants elect Crown Court trial or appeal against their sentence, both of which would add to rather than subtract from the backlog.

An equality impact statement says monitoring will include data on sex, ethnicity, and other protected characteristics “where it is available”. But during the passage of the Judicial Review and Courts bill, the government rejected as burdensome an amendment requiring reporting to Parliament every four months on the operation of the increased sentencing powers.  And oddly the IA says the policy of extending Magistrates’ Court sentencing powers will not be reviewed.

To reduce the risk of unsustainable adverse impacts, the government promised to provide training for magistrates, district judges and legal advisers and to work with the Sentencing Council to update sentencing guidelines. There has been nothing so far on the Council’s website about the change.   

Overall the measure gives a good deal of cause for concern. As the House of Lords Delegated Powers and Regulatory Reform Committee  have said “the issue of what the maximum term of imprisonment that is available to a magistrates’ court should be is one on which there are differing and strongly held views”.

The idea that ministers can switch it on and off at will is bizarre. But so, to me anyway, is their ability to commence a legal provision 19 years after it was enacted and in a very different context. No consideration seems to have been given to piloting it; and the powers are clearly a means to the end of freeing up court time rather than necessarily in the interests of justice.

As for the substantive issue, I’ve always wondered whether lay magistrates should have powers to sentence people to prison at all. Certainly the way the Magistrates Association have celebrated their “campaign win” looks slightly off.