Much has been written in this magazine and elsewhere about the recent change which enables magistrates to hear cases with a tariff of up to one year’s imprisonment. Opinion has varied from those thinking it is a sensible course of action, given the huge (and growing) backlog in the Crown court, to those who see it as another example of the government rushing to a decision and getting it wrong.
Some of the criticism – especially where it questions magistrates’ ability to handle these cases – is misplaced. In 2023, when magistrates last had this sentencing range, they collectively undertook thousands of hours of additional training for doing this work. It undoubtedly enabled more cases to be heard quicker than would otherwise have been possible.
There is no evidence that magistrates are more likely to sentence offenders to custody than Crown court judges for the same offence. A key reason why there is very little difference is the Sentencing Council guidelines that we all follow. If an offence merited 12 months’ custody at the Crown court, it would also do so at the magistrates’ court.
In recent years, there has rightly been an increased emphasis on alternatives to immediate custody. Short sentences rarely do much good and, indeed, often make a situation worse. This focus on alternatives to custody is now baked into sentencing guidelines. This means that even when the threshold for custody has been passed for a particular case, it should only be imposed if there is no suitable alternative – such as a suspended sentence, a community sentence, or a fine.
This change of approach led to the number of short sentences of less than 12 months with immediate custody falling from 59,665 in 2014 (64% of all immediate custody sentences) to 43,723 in the year to June 2024 (58%). In that decade, the average custodial length increased from 15 to 20 years, showing the impact of sentence inflation for more serious offences. In the same period, the proportion of people in prison serving short sentences of less than one year approximately halved to just 4%, while the proportion serving determinate sentences of over four years has risen from 40% to 57%. Last September, the remand prison population was 17,662, the highest in at least the last 50 years. This figure dwarfs the number of short-term prisoners.
Short-term custody is a last option reserved primarily for the protection of the public if an offender is already serving a sentence for other offences; if they have breached a suspended sentence; or if no other alternatives exist. While it is difficult to see an alternative to custody for all situations, there is common agreement on the need to drive down short-term sentences as far as possible.
The Magistrates’ Association frequently calls for greater investment in alternatives. The more suitable alternatives to prison there are, the better for everyone. The key to this is ensuring there are enough resources for probation services to provide those alternatives by way of unpaid work and rehabilitation services. It might be seen as perverse that out-of-court disposals often impose a broader range of requirements than a magistrates’ court is able to do.
In the short term, more cases being heard by magistrates is likely to lead to a small increase in the prison population. This is not because magistrates have a greater propensity to lock people up, but because magistrates’ courts can hear cases faster than if those cases were waiting in the years-long Crown court backlog. Speedier justice means the small proportion of cases that end with immediate custodial sentences will have them imposed more quickly.
In the medium- and longer-term, however, this measure can help reduce the prison population. With 11,366 people in prison awaiting trial, and a further 6,296 people in prison having been found guilty or having pleaded guilty but not yet been sentenced, the 2,000 Crown court sitting days that the government estimates will be freed up by this measure can be devoted to those cases. This is not only positive for those defendants – as well as victims and witnesses – who are in the appalling situation of having their lives put on hold while they await justice. It also means that those on remand awaiting trial, who are subsequently found not guilty, will be released faster – thereby easing the pressure on prison places, particularly in the so-called ‘reception prisons’ where remand prisoners are typically held and pressures are particularly acute.
We have been critical of the kneejerk decisions taken in reaction to whatever the latest justice crisis is, but this change is the sort of sensible, creative thinking that we need to see more of. We have called on successive governments to take a holistic approach to reviewing and fixing the whole justice system – policing, courts, legal aid, probation, prison, post-prison support and rehabilitation services – bringing all the key organisations together and backing it up with proper and sustained investment.
We are encouraged by the sentencing review led by David Gauke, and the review of criminal courts led by Sir Brian Leveson. These are two more important sections of the justice jigsaw that need to be completed. However, what is also needed is a long-term funding settlement to go alongside the reform. Let us say it tentatively, but if all these pieces of the jigsaw are put in place in the coming year, including the funding, 2025 could just be the year that the justice system is placed on the path towards long-term recovery.
Mark Beattie JP is national chair of the Magistrates’ Association
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