Magistrates to get more powers to jail defendants for longer

Written 18th January 2022 by Alex Preston

The Justice Secretary Dominic Raab has announced that the Government is planning to allow magistrates to sentence defendants up to 12 months’ imprisonment for an either way offence, rather than the current maximum of six months.

The changes will come into force via a Commencement Order and will impact England and Wales.  

The issue of magistrates courts’ sentencing powers have long been discussed – the original power has in fact been on the statute books since 2003 and was in that year’s Criminal Justice Act, but was not enforced.  The power has now been transferred to the Sentencing Act 2020, Schedule 22.  This means that the proposal can be implemented swiftly and simply, although the Government has also said that all magistrates will require training on the new power before it is enacted.

Case Allocation

Case allocation in the magistrates’ court has long been a hot topic (for lawyers, that is), because of the perception that justice in the magistrates’ court is inferior to that found in the crown court, and also because of the rapidly reduced payments for legally aided criminal defence case.  This matters, because all criminal cases in England and Wales start in the magistrates’ court – and 95% of them are completed there.  However, the more serious cases are passed to the crown court, either for sentencing after a defendant has been found guilty after trial or when a defendant has pleaded guilty, or for full trial in front of a judge and jury.

The current position is the most serious types of offences, known as ‘indictable only’ offences, will always be sent to the crown court.  ‘Summary only’ offences, generally the least serious, will remain for the magistrates’ court to deal with.  These are offences for which (if they are imprisonable), the current maximum prison sentence is six months.  

‘Either way’ offences

What these proposals will affect is the body of offences which fall in between – known as ‘either way’ offences.  Examples of such offences are assault causing actual bodily harm, affray, possession of knives, most burglaries, most thefts, fraud, almost all drug offences and many sexual assaults.  Currently, if a defendant pleads not guilty, then he or she has a right to elect a Crown Court trial for such offences, and that will not be affected by this new proposal.  However, where a defendant enters no plea or consents to a magistrates’ court trial, or after a defendant has been convicted of an either way offence in the magistrates’ court, the magistrates will then have to decide whether to send the case to the Crown Court for either trial or sentence.  This is what this proposal is aimed at.

Currently the magistrates court can already sentence up to a maximum of 12 months, but that would require more than one either way offence.  The maximum for a single either way offence is six months.

Crown Court backlog

Given that the Crown Court backlog currently stands at just under 60,000 cases, and is only being cleared at the rate of 500 per month, the hope one presumes is that the proposal will reduce the number of cases sent to the Crown Court to be dealt with.  If there is such a reduction then they will not add to that backlog, and the magistrates court is cheaper and swifter than the Crown Court. However, there is also a backlog in the magistrates’ court (which pre-dates Covid), so logically keeping them there will simply shift the issue to a different court.  As is often the way with criminal justice however, the Crown Court tends to garner far more public, press and political attention, even though it only deals with 5% of criminal cases.  It may be that shifting the problem to the magistrates’ court eases some of that attention and political pressure for the Government.

One interesting point is that although the Government has, it is believed, done modelling on the effect of the measure on prison places, this has not been released.  The concern therefore may be that simply reducing allocations of cases to the Crown Court will not actually end up saving money, as the very high cost of imprisoning defendants for 12 months or less will simply be shifted downstream. This is because magistrates tend to send more defendants to prison for equivalent offences than crown court judges. 

Magistrates courts are often in the shadows as far as concerns about criminal justice is concerned.  It may not be widely known that magistrates already have the power to jail children up to a maximum of 2 years.  Unfortunately, there are not many articles written about that.

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