Russell Fraser examines the Government’s plan to double the length of custodial sentences that magistrates can impose.

On Monday October 28th, the Government laid before Parliament The Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2024, whose purpose is to increase the length of custodial sentence magistrates can hand down for a single offence from six months to 12 months.

Justice Secretary Shabana Mahmood announced this was needed because: “This government inherited a criminal justice system in crisis, with dangerously overcrowded prisons and victims waiting far too long to see justice. This marks a further step towards addressing the deep challenges in our criminal justice system, both reducing the record remand population in our jails and delivering swifter justice for victims.” It will almost certainly come into force on November 18th.

Statutory instruments are published with an accompanying “explanatory memorandum”.  That sets out the effect of the legislation, why it is being done, and who was consulted. The memorandum notes that the last time this was tried (before being abandoned), the measure “had an immediate, inflationary impact on the prison population.”  

Sadly, Ms Mahmood’s statement does not also have an accompanying “explanatory memorandum” to clarify how what she now says is squared with the recent past. Indeed, the “impact assessment” expects the adult prison population to increase, peak after four months and stabilise in 18 months. But all of this is apparently “exceptionally difficult to model and predict.”

Lord Timpson was appointed prisons minister by the Prime Minister to much fanfare. The businessman is known for employing former prisoners and has questioned in the past whether we imprison too many people. In September, when speaking at a Labour Party Conference fringe event hosted by the Fabian Society, he was challenged by an audience member to speak up for community sentences. In reply, he was quoted as saying “I completely agree with you about the positive impact of community sentencing but I think it needs to be trusted more by the courts.” Yet here we are.

It should not be taken as a slight on the magistracy to voice the fear that if they are given greater sentencing powers that they might just use them. Logically, of course, the types of crime which might result in a sentence of 12 months in the magistrates’ court lie at the most serious end of the range of offences that court deals with. And, naturally, that sort of offence will be at the lower end of what crown court judges deal with day-to-day. And while both courts must have regard to sentencing guidelines, the decision whether to depart from those guidelines, or to suspend a sentence is one at the discretion of the court. Such decisions must be reasoned but I fear that when, as they must, the tribunal in the respective courts ask themselves if appropriate punishment can only be achieved by immediate custody, different conclusions will likely be reached.

Curiously, perhaps, the national chair of the Magistrates’ Association welcomed the decision stating that “our members will be able to help prevent an increase in the backlog of cases in the Crown courts.” One might think the better course is to look at the reasons for the backlog and deal with those rather than this type of trivial tinkering.

There was no public consultation carried out before the Government decided to amend the position. Instead the memorandum states that the Ministry of Justice collaborated closely with “agencies and partners” in the Criminal Justice System, including HM Courts and Tribunal Service, the Judicial Office, the Legal Aid Agency, the prison service and the Crown Prosecution Service. None of those organisations include members who actually represent defendants, or indeed the probation service which has for some years struggled with the aftermath of a botched part-privatisation and lack of resources.

On October 21^st, the Criminal Bar Association deprecated this failure to consult in its weekly email to members. The chair, Mary Prior KC, wrote: “The ‘swift justice’ scheme does not differentiate between guilty pleas and trials. If an accused denies the offence then they are likely to choose to be tried by a jury. If the accused wants to delay the conclusion of the case they are also likely to elect trial by jury and sit in the backlog of over 75,000 cases waiting for a trial. By the time that the trial is reached, the witnesses may well have decided not to continue or, if the accused has not re-offended, the sentence imposed years after an event will inevitably be lower.”

That was echoed by the Law Society who released a statement saying this measure would not help and that “changing one element of the system without due regard to the others is one of the reasons why the system is in the state it is. All areas of the criminal justice system from courts to criminal legal aid and prisons to probation are in crisis and the problems are interlinked. Solutions must consider the system as a whole.”

As a criminal defence barrister, I also fear where such changes to system might lead. From time to time, threats to the jury system rise and then recede but never quite disappear. The costs of the system and the demands it places on jurors’ time are easy targets, amplified on occasion by a popular press aggrieved by some acquittal that they have deemed unpopular. It is not impossible that handing greater powers to the magistrates’ court becomes addictive – particularly with a Labour government keen to appear tough on crime and talking again of ‘tough decisions’ about public spending. The risk presented then is that more offences are considered as suitable for magistrates’ court resolution and the right to jury trial begins to erode.

Politicians endlessly incant that ours is the premier justice system in the world. Yet the truth is criminal courts users spend their days battling a failing system, in a neglected court estate which reveals the true regard in which those in power hold justice. The Prime Minister knows this; he was, as he repeatedly reminds us, the chief prosecutor. Yet he shows no sign of a compulsion to change very much at all, let alone invest in a justice system which was a favoured and easy target during the years of Tory austerity.

Russell Fraser is a criminal defence barrister at ​Garden Court Chambers.

Image: Justice. Source: https://pixabay.com/fr/photos/justice-statue-dame-justice-2060093/ Author: Sang Hyun Cho. This file is from Pixabay, made available under the Creative Commons CC0 1.0 Universal Public Domain Dedication.