‘Not the right conditions’ to double sentencing powers for magistrates

The Lord Chief Justice has called for magistrates’ sentencing powers to be doubled allowing them to jail offenders for up to a year. Eleanor Sheerin reports

Speaking as he formally opened the new premises of the Magistrates’ Association in Vauxhall last week, Lord Thomas of Cwmgiedd said that the timing was ‘good’ to grapple with the issue because it was unlikely to impact the still increasing prison numbers which, he said, were a result of the ‘serious problem’ of long-term prisoners. ‘There is not a problem with that part [short-term prisoners] of the prison population,’ he said.

Lord Thomas has previously advocated the use of ‘very tough non-custodial penalties’ as a way to combat the ‘very, very high’ number of 85,000 prisoners currently in England and Wales.

Trials in the Crown Court cost £3,400 a day, compared to the £900 it costs to try cases in magistrates’ courts. Doubling the sentencing limit for magistrates would mean more than 10,000 cases being tried by magistrates rather than the Crown Court, leading to estimated savings of up to £40 million per year.

Last year the House of Commons gave its backing to extending sentencing powers to 12 months which, they argue, would ‘signal trust’ in the magistracy and provide ‘a boost to its morale’. Currently magistrates can sentence people to prison for one offence for up to six months. The Criminal Justice Act 2003, section 154, allows for that to be increased to 12 months for one offence, and 15 months for two or more offences, but the legislation has yet to be introduced.

The Magistrates’ Association has been calling for magistrates’ sentencing powers to be extended for some time now, culminating in research published in 2015. It concluded that if the maximum sentencing power for magistrates was raised to 12 months’ imprisonment, both time and money would be saved. The Association’s findings have also left it confident that ‘there is no reason why magistrates cannot sentence responsibly and appropriately for these offences [that require longer sentences], just as they already do for the vast majority of convicted offenders in England and Wales’.

However, this call has been met with concern from those who believe that ‘case hardened’ magistrates are already overly severe in their sentencing, and are not qualified to have that power increased twofold. Penelope Gibbs of the charity Transform Justice argues that magistrates’ courts ‘make decisions in a very different way to Crown Courts, and thus increasing sentencing powers may result in increased prison numbers’

Transform Justice point to statistics that show the difference between magistrates’ courts and the Crown Court, which could have an impact on prison numbers. Overall conviction rates are higher in the magistrates’ courts, at 97.5% compared to 85.8% in the Crown Court. Correspondingly, the Crown Court has more acquittals, with 12.5% compared the magistrates’ courts’ 9.9%. There has also been a shocking rise in severity of sentences for burglary, which the Sentencing Council diagnosed as ‘primarily driven by an increase in severity in magistrates’ courts, where both the average custodial sentence length (ACSL) and custody rate have been increasing’.

‘Magistrates want greater sentence powers against a backdrop of diminished training, poor disclosure practice from the CPS and ever greater pressure for conveyor belt justice,’ commented Penelope Gibbs. ‘These are not the right conditions and the risk of increasing the prison population is just not worth taking.’

Barrister Max Hardy in his Counsel of Perfection blog also questioned the wisdom in conferring more power on magistrates, the vast majority of whom were unpaid volunteers. ‘We don’t confer sentencing powers on juries so why do we permit lay magistrates to send people away?‘ he argued. He argued that the powers to sentence offenders to imprisonment be confined to professionally trained District Judges, as ‘this would surely have the effect of ensuring that only those that absolutely have to be in prison are sent to prison’.

A magistracy in crisis?
Earlier this month the David Lammy’s long awaited review into race and the criminal justice system called for the Ministry of Justice to address ‘key data gaps’ in the magistrates’ court and examine magistrates’ verdicts ‘with a particular focus on those affecting BAME women’.

Whilst the jury was deemed by the review to be ‘a success story’ of our justice system, the picture was ‘not so clear cut’ for magistrates and in particular there were ‘worrying disparities’ in terms of the treatment of BAME women. All the data showed that juries did not deliver different results for BAME and white defendants even if they were all white. Juries were ‘representative of local populations – and must deliberate as a group, leaving no hiding place for bias or discrimination’, the review found.

According to last year’s justice committee report, whilst the magistracy has achieved gender parity (53% of magistrates are female), close to nine out of 10 are white (89%) and many benches have ‘no, or very few’ Black, Asian and Minority Ethnic magistrates. Over the last decade the number of magistrates has closed to halved, falling from 30,000 to 17,552. The MPs notes morale amongst magistrates was is low and training was inadequate. ‘It is unfortunate that the Government’s evident goodwill towards the magistracy has not yet been translated into any meaningful strategy for supporting and developing it within a changing criminal justice system,’ commented Bob Neill, justice committee chair said at the launch (see HERE).

This article was published on September 21