It was confirmed on 18 January 2020 that Magistrates are to have their sentencing powers increased in the coming months, granting them broader power than ever before. The most significant change is that Magistrates’ will be able to impose a sentence of up to 12 months in custody which is double the previous maximum sentence. Effectively, this means that Magistrates will be able to accept jurisdiction for more serious either way offences, such as for Fraud, Theft or Assault, which would have originally been sent to the Crown Court without giving the Defendant the option to elect to remain in the Magistrates’.

Why have the changes been imposed?

The rationale behind the change is that the Crown Courts have hit boiling point. Magistrates’ Courts have been less critically affected by the pandemic and the reform is one attempt at relieving pressure from the Crown Court by tackling some of the backlog that lingers in its shadows. The backlog is currently a crippling 60,000 cases.

The backlog existed before the COVID pandemic, but like most things, it has been greatly exacerbated by it and there have been severe delays in almost every aspect of trials in the Crown Courts. During the first lockdown, due to the Government guidance, some court buildings were closed, and all jury trials were postponed. As the second lockdown came into effect, a small number of trials commenced, however, this proved to be an immensely difficult task. The courts witnessed numerous delays, whether due to members of the jury or court contracting the virus, adjournments whilst waiting for negative test results, or simply the process of having to clean thoroughly after witnesses had given evidence. More recently, it has become increasingly concerning that some trials have been listed to be heard, at the very earliest, in 2023. The impact is that defendants and victims often are forced to wait years for a trial, with some victims withdrawing from supporting a prosecution entirely.

But what will the change mean for the criminal justice system in practical terms?

Undeniably, the criminal justice system is under immense pressure and solutions are desperately needed. The Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice, Dominic Raab has stated that “This important measure will provide vital additional capacity to drive down the backlog of cases in the Crown Courts over the coming years… Together with the Nightingale Courts, digital hearings and unlimited sitting days, we will deliver swifter and more effective justice as we build back a stronger, safer and fairer society after the pandemic.” This reinforces the Ministry of Justice estimation that these additional powers for Magistrates’ could, per year, prevent over 500 cases per year from being sent to the Crown Court and free up 2,000 extra days. This would evidently be a welcome achievement.

However, it is highly possible that in fact the reverse will be the reality. Considering that the conviction rate is higher in the Magistrates’ Court, many defendants have previously elected to be tried in the Crown Court and this will still be an option. Under the current system, there is arguably a benefit of remaining in the Magistrates Court for trial and sentence due to the maximum sentence being six months, however, the Magistrates still have the option of

committal to the Crown Court for sentence at the conclusion of a trial. The reform of powers may serve as a deterrent and we may see more defendants electing for the Crown Court. This could take us back to where we started. The increased sentencing powers may also trigger more appeals to the Crown Court, which would also have the effect of exacerbating, as opposed to easing, the backlog. Other possible delays may be evident such as where Magistrates’ will not proceed to sentence without a Pre-Sentence Report, especially when they are considering longer sentences. The delays for these are also considerable, with some taking up to six months to complete and provide to the court. Therefore, longer sentences could create more of a backlog in the Magistrates Court. There is also a possibility that the changes will put more strain on the Ministry of Justice budget and increase the prison population, which is already overloaded, as echoed by Mark Fenhalls QC, the chair of the Bar Council.

Reactions to the change

This reform was always going to invite controversy as it changes one of the core structures of our Criminal Justice System.

Part 1 of the Criminal Procedure Rules is to ensure all cases are dealt with justly. This includes acquitting the innocent and convicting the guilty and dealing with a case efficiently and expeditiously. There is little doubt that if the backlog is assisted by this reform, that this will be a vital feature for the course of justice. However, it is unlikely that this will happen.

The change was welcomed by the Magistrates’ Association which has been lobbying for this move for over a decade. While the role of lay magistrates in summary justice is invaluable, it is notable that of all the reforms that Magistrates’ could have advocated for, such as better training or increased funding for court staff, Magistrates have fought for increased sentencing powers. It could be perceived as worrying that having greater power to sentence their fellow citizens is one of the top issues on the priority list for the Magistrates’ Association.

Members of the bar have openly criticised the move; Jo Sidhu QC, the chair of the Criminal Bar Association, stated that “This is distraction politics at its worst. The government seems wilfully blind to the stark reality that hundreds of criminal barristers have left the field in despair due to a quarter century of falling real incomes. That is the reason why victims of serious crime are being denied justice in our crown courts.”

Magistrates Courts are the first point of entry for every criminal case and the majority of criminal cases are tried within it. Magistrates Courts are an important feature in keeping the justice system running smoothly, with trials being shorter and more cost effective. Magistrates, being unpaid and non-legally trained volunteers, receive 21 hours of training and commit to sitting 13 days per year. Whilst the intention to assist the Crown Court is welcome, there will undoubtedly be individuals who find it alarming that magistrates are being given broader sentencing powers under this structure.

The bigger picture

As stated, much focus has been placed on the COVID pandemic as the trigger for the reform. However, it is apparent the Government needs to do far more to repair the current state of the system, addressing all aspects of why the backlogs are present. Since before the pandemic, criminal barristers have been calling out for improved conditions at the Bar. The situation has been described as dire and has been causing a great deal of practitioners to leave the profession. The knock-on effect on the criminal justice system as a whole means there are delays caused by a lack of funding and a shortage of barristers. COVID is not the sole cause and these reforms will not address the issue of the backlog by themselves.

Whilst it is possible this change may take some pressure off the Crown Court, it is unlikely. In fact it may exacerbate the pressure generally on the courts by increasing trials and appeals to the Crown Court and causing delays in the Magistrates. The fact that the government is looking for solutions to the challenges faced by the justice system is a positive thing. However, suggestions proposed by those working within the system need to be given far more attention to overhaul the current state of affairs. The backlog has not been caused solely by the COVID pandemic and it is the root causes that need to be addressed. Years of funding cuts are the heart of the matter. Unless this is resolved, the backlog is likely to continue.