Are Courts Ready for the Sentencing Act?

 

With the prison population almost 1,200 higher than it was when the Sentencing Act became law in January, its easy to see why the government want its key provisions to come into force quickly. But are the courts ready to apply the presumption against short prison sentences to those convicted from next Monday?

The law looks reasonably clear about the types of case for which the presumption wont apply- such as where the sentence is imposed alongside a longer prison sentence for another offence, the offender is remanded in custody in relation to another offence or where the commission of the offence relates closely to the breach by the offender of an existing court order.

The court’s task will be less straightforward in forming an opinion that suspending the sentence would put a particular individual at significant risk of physical or psychological harm.  And even less so in reaching an opinion that there are exceptional circumstances which relate to the offending or the offender which justify not making the order. I haven’t seen any guidance on the kind of factors courts should take into account in reaching the view that, notwithstanding the presumption, the offender should go to jail.

The Magistrates Association have said that “magistrates will require clear guidance in identifying exceptional circumstances in practice, and the confidence to refuse a suspended sentence where such circumstances genuinely apply”. The obvious body to produce such guidance is the Sentencing Council. In their January meeting they agreed to make some minor edits to their guideline on the imposition of community and custodial sentences as a result of the Act but that “consultation will be required for potential further amendments to the guideline, particularly on the presumption of suspension, and on further Sentencing Act provisions coming into effect later in the year”. There has been no consultation that I have seen.

The Sentencing Act Impact assessment says that “judicial discretion means there is a high level of uncertainty on estimated impacts. If fewer custodial sentences are diverted to suspended sentence orders than modelled scenarios, impacts will be different”.  This could mean less relief for the overcrowded prison system- and unnecessary jail terms for individuals.

What Will Court Reform Mean for the Prison Population?

 

It’s good to see the House of Commons Justice Committee asking the government tough questions about the controversial Courts and Tribunals Bill. The Committee has issued a call for evidence to inform its scrutiny of the Bill and has already engaged the Lord Chancellor about the likely impacts of the legislation, including on the prison population.

Diverting more cases into the Magistrates Courts will reduce periods spent by defendants remanded in custody, and demand for jail places. But the resulting space freed up in the Crown Courts will accelerate the sentencing of defendants on bail charged with complex and serious crimes; those who get custodial terms will do so sooner than they otherwise would, upping pressure on prisons.     

The government’s impact assessment (IA) published alongside the Bill last week estimates the net effect will be an increase of 900 in prison numbers by 2033 before they gradually start to fall. It’s not a huge amount but neither is it negligible, given that the IA accounts for the measures in the Sentencing Act 2026, which introduces a presumption to suspend short custodial sentences, expands community-based alternatives, and increases electronic monitoring. The Ministry of Justice will need to revise its central estimate of a prison population of 95,900 in 2032 in the light of the new Bill’s impacts.

They may also want to look a bit more closely at the likely effects of extending Magistrates Courts sentencing powers so that cases that would otherwise be sent to the Crown Court can be retained in the magistrates’ courts for hearing and sentencing. The Bill allows for Magistrates sentencing powers to go up to 18 months or 24 months maximum imprisonment for single and multiple triable either-way offences.

In assessing the impact this might have on prison numbers, the IA assumes that sentencing behaviour will be the same in both Magistrates and Crown Courts. But Lord Chancellor David Lammy has told the Justice Committee that the increase to Magistrates Sentencing powers from 6 to 12 months in 2022-3 “had a short-term inflationary impact on the prison population”. It’s surprising that the IA doesn’t flag this at least as a potential risk this time round. If it comes to pass, the 900 estimate may be too low.

On the other hand, there may be an opportunity to limit the upward impact on prison numbers brought about by accelerated sentencing in the freed up Crown Court. The IA says that where bailed defendants enter the prison estate more quickly, there may be a public protection benefit for society through reduced potential of further reoffending and or victimisation. It asserts that “moving convicted people into prison removes potentially dangerous individuals from society which brings the benefits of safer communities”.

Equally for many of those defendants who have completed their periods on bail successfully, it should be possible to fashion a community-based alternative which can keep them out of prison after as well as before they are sentenced.