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Magistrates Sentencing Powers Increase U-Turn

AS, A-Level, BTEC National
AQA, Edexcel, OCR, Eduqas, WJEC

Last updated 5 May 2023

In an attempt to deliver swifter justice, punish criminals and stand up for victims in January 2022, the then Justice Secretary Dominic Raab announced that he was increasing magistrates maximum sentencing powers for either-way offences from 6 to 12 months. Allowing for training to take place, this was to be effective from March 2022, but 12 months later it has been announced that these extended powers are to be curtailed, with a return to the maximum sentence a magistrate can impose being 6 months once more - but why?

With delays due to the Covid-19 global pandemic meaning cases were taking up to 50% longer to reach Crown Court than previously, up to 600 days, and an increased backlog of 60,000 cases waiting to be heard in the Crown Court, having magistrates deal with some of these cases seemed like the ideal solution. With increased powers they could sentence cases formerly sent to the Crown Court where their powers were not enough and retain jurisdiction at allocation hearings over some more potentially serious offences (although there always was the option to retain jurisdiction and send to the Crown Court for sentencing if needed). This would in turn unburden the Crown Courts in an effort to reduce delays seen in court.

Defendants would of course have the right in any event to elect for trial by jury. The first change to sentencing limits since the Jurisdiction Act 1879, this was of course not without concerns. This could lead to an increased number of appeals against Magistrates Courts decisions, as statistically convictions there are higher than under a jury in a Crown Court. Also it may be deter defendants from trial within the Magistrates Court and with the right to elect for trial by their peers with a jury in the Crown Court, this may add to delays rather than tackling the backlog of cases.

There were also concerns that these increased sentencing powers would put pressure on different areas of the Ministry of Justice, such as increasing the prison population. This appears to have come to fruition and is one of the reasons why magistrates sentencing powers are being curtailed. Increases in the number of those serving short sentences, where there is little prospect of any rehabilitative activity taking place, is piling pressure on prisons. Operation Safeguard has been planned to address this in the North of England where inmates are held in police cells rather than prisons to reduce overcrowding. Overcrowding of course must be avoided for the safety of all in the prison service, as this was one of the contributing factors to the Strangways Riots in April 1990. The Ministry of Justice has not directly commented on this and have simply stated that they always retained the power and flexibility to scale back the increased sentencing powers given to magistrates to try and deal with delays from the pandemic, and this is what they are now doing. The March 2023 Court of Appeal case of R v Arie Ali has stated however that in times such as the present, when the prison population is known to be high this may be a factor to consider when deciding if a sentence can be suspended.

The Magistrates Association have spoken of their disappointment of this scaling back of their sentencing powers and point to the need for a well-resourced justice system which can cope with the demands of the number of cases before the court.

Questions to consider

  • How are Magistrates selected for appointment and what qualifications/qualities do they require?
  • What are the advantages and disadvantages of using lay magistrates?
  • Do you think this blog highlights any concerns in the criminal justice system, such as overcrowding in prisons and what are your views on this in relation to sentencing strategy? Is giving magistrates more power the answer?

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