Orla Slattery-Lecturer NTU
In May 2022 Magistrates’ Courts were granted an extension to their sentencing powers, allowing them to sentence a defendant to up to 12 months imprisonment for a single triable either way offence. This change was made by Section 224(1A) of the Sentencing Act 2020 inserted by section 13(1)(b) of the Judicial Review and Courts Act 2022.
After the changes a 6 month time limit remained in place for summary only offences, but there was a twofold increase in the Magistrates Court’s previous maximum power to impose up to 6 months imprisonment for a single TEW offence. Summary only offences are offences considered less serious, and thus only dealt with in the Magistrates’ Court and punishable with a maximum of 6 months imprisonment, for example, common assault. Triable either way (TEW) offences are offences that can be dealt with either in the Crown or Magistrates Court; and include more serious assaults which result in significant injury. Defendants in these cases can be ‘sent’ to the Crown Court when the Magistrates feel the matter is too serious for them to deal with, or, defendants can ‘elect’ to go to Crown Court for a trial by jury. Defendants can also be sent after conviction to be sentenced, if the Magistrates feel their sentencing powers are inadequate. Indictable only offences, such as rape and murder, can only be dealt with in the Crown Court.
The government stated that this change would allow Magistrates’ court to assist in reducing the ‘Crown Court backlog’ more effectively. The ‘Crown Court Backlog’ being the significant number of cases still due to be dealt with in the criminal justice system (CJS). The rationale appeared to be that fewer cases would need to be committed to the Crown Court for sentence, thereby increasing the Crown Court’s availability to deal with more serious offences. This backlog has existed for many years but was exacerbated by cases that could not be dealt with during the COVID-19 pandemic. The Government estimated 1,700 days in the Crown Court would be freed up each year by increasing the magistrates sentencing powers.
However, In March 2023, after less than 12 months the new powers were revoked. Sentencing powers in the Magistrates Court reverted to a maximum sentencing power of 6 months imprisonment for a single TEW offence, although the Government stated this would be a temporary measure. The amendments were made under Regulation 2 of the Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023 298). The reason given for this reversion of powers was that now prison capacity was unable to keep pace with the number of people sentenced to imprisonment. This announcement followed ‘Operation Safeguard’ the name given to the request by the Secretary of State to the National Police Chiefs Council for the use of 400 police cells for use as prison cells. Shortly thereafter, the Court of Appeal gave judgement in R v Ali [2023] EWCA Crim 232 and held that courts could consider prison capacity when sentencing, particularly for shorter sentences, until the government indicate that prison capacity is no longer an issue.
Arguably, the government must believe that increasing Magistrates Sentencing Powers has the potential to have a significant effect on prison numbers if the reversion is to be justified. However, data from HMCTS suggests that the Crown Court backlog in fact grew by 3,539 cases from 57,539 in February 2022 to 60,898 February 2023, perhaps meaning that it hasn’t had the desired effect on improving CJS efficiency. There is evidence that short-term custodial sentences (those under 12 months) are more likely to result in reoffending than alternatives to immediate custody. It seems counter intuitive to increase the number of short-term prison sentences without demonstrable public benefit.
It is admittedly difficult to disentangle the effect of other events on the system, such as the late 2022 barristers ‘strike’ and an apparent decrease in the number of available advocates, meaning cases go unheard at the last minute. There is also concern that despite an ‘unlimited’ increase in funding for sitting days in court, there are simply not enough judges to hear the cases. Barristers and solicitors are leaving criminal law, which also means a decreasing pool from which to draw future judges.
Funding in the CJS is estimated to be at 8.1% below the 2010 -11 budget in real terms. A recommended increase in legal aid spending by Criminal Legal Aid Review has only partly been implemented in response to the barrister’s strike, with solicitor’s rates remaining well below the reports recommended levels.
We have recently welcomed our tenth Justice Secretary in ten years, whether he decides conditions are once again right to increase the Magistrates sentencing powers, it would seem apparent that there is no quick fix for our CJS, and significant funding is needed across the system.
Further Reading
R v Ali [2023] EWCA Crim 232
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