New sentencing powers may overwhelm prisons

But government will have an emergency brake in case it all goes wrong

Magistrates in England and Wales will be allowed to pass prison sentences of up to 12 months under plans announced in the Daily Telegraph today by the justice secretary, Dominic Raab. At present, the maximum they sentence they can impose in a single case is six months.

In a piece that by-lined him as deputy prime minister and justice secretary, Raab said the move formed “part of our wider strategy to get court backlogs down as quickly as possible”.

However, in a press release I received last night, Raab was more modest about the time-scale.

“This important measure will provide vital additional capacity to drive down the backlog of cases in the Crown Courts over the coming years,” he said.

The press release — which has not yet appeared on the Ministry of Justice website — said the changes “will come will come into force in the coming months via a commencement order”.

If Sir Lindsay Hoyle, the Commons speaker, complains today that Raab has announced reforms to the media before informing parliament, it will be difficult for the justice secretary to blame the discourtesy on a leak.

A Telegraph news report sub-head described the reform as “biggest shake-up of judicial system for 140 years”.

In fact, parliament agreed nearly 20 years ago that magistrates could impose prison sentences of up to a year. However, the power, in the Criminal Justice Act 2003, was never brought into force. It was repealed by the Sentencing Act 2020, subject to transitional provisions.

Ministry of Justice press release

I asked the Ministry of Justice last night which provision the secretary of state would be bringing into force by a commencement order. No answer was forthcoming.

However, the Ministry of Justice press release also said:

Today’s amendment to the Judicial Review and Courts Bill will put an “off-switch” in law so we can quickly stop the measures if needed.

The changes will apply only to cases that can be tried either by magistrates or in the Crown Court. It follows that defendants accused of crimes such as fraud, theft and assault will not lose the right to jury trial.

Comment

The government’s frank admission that it may be necessary to “quickly stop the measures” shows what a bad idea this is.

There is of course a good reason why this provision has lain dormant for the best part of 20 years, only to be repealed in 2020. Successive governments have accepted that allowing magistrates to pass longer sentences would increase the prison population. The risk of overcrowding would be particularly high in the short term because, as Raab accepts, it would lead to swifter sentencing.

This is firmly denied by the Magistrates’ Association. In 2015, for example, it said:

The magistrates’ court sentencing guidelines would of course need to be updated to provide guidance in cases where a sentence of between six and 12 months would be appropriate. However, with the right guidelines and relevant training in advance of rolling them out, there is no reason why magistrates cannot sentence responsibly and appropriately for these offences…

It’s accepted by the government that magistrates would need training before the change comes into effect. So any reduction in the backlog of cases awaiting trial in the Crown Court must be many months off.

Indeed, that backlog may increase if defendants who might previously have asked to be dealt with in the magistrates’ court because of its reduced sentencing powers calculate that they will not be much worse off in the Crown Court. That would be a lose-lose outcome for the justice system: the longer a defended trial is delayed, the more chance there is that it will collapse. And if the case is dealt with in the Crown Court, even on a guilty plea, it will cost more than a hearing before lay justices.

Jo Sidhu, QC, chair of the Criminal Bar Association, told the Telegraph:

Fiddling with magistrates’ sentencing powers is a betrayal of victims of crime. This is a cynical means of depriving those accused of serious crime from being judged by their peers in our long-established jury system.

Keeping back more cases in the magistrates will, in any event, only trigger more appeals to the Crown Court, adding to the long list of cases and divert criminal advocates from tackling the existing pile-up of trials.

Mark Fenhalls QC, chair of the Bar Council, added: “We believe that these changes will simply increase the prison population and put further pressure on the Ministry of Justice budget. This will mean less money available to keep the courts running.”

Update 8am: the press release has just been published.

Update 11am: a reader has kindly alerted me to paragraph 24 of schedule 22 to the Sentencing Act 2020, which which increases the maximum sentence in section 224 from six to 12 months if and when an order is made by the secretary of state under section 417.