End stop-go-stop on magistrates' sentencing

Our criminal justice system is in trouble. Delays and overcrowding pervade, and the government’s approach to tackling these resembles whack-a-mole.

Last year, it extended magistrates’ jurisdiction to cases where the maximum sentence is up to 12 months’ imprisonment. Magistrates supported this change to help relieve pressure on the Crown court. More cases being handled in magistrates’ courts equals more Crown court capacity to deal with the most serious offences, which otherwise get stuck in long backlogs.

However, the government has now slammed on the brakes, worried that faster justice puts pressure on overcrowded prisons. It seems to be finding ways to delay sentences – including by pausing magistrates’ increased sentencing range. Justice will be slowed further if more cases are allocated to the Crown court. This impacts victims, defendants and witnesses.

Such a sudden stop starkly highlights the troubled state of our criminal justice system. Unable to cope with its current caseload, a caseload only likely to increase further with additional police recruitment, it is in urgent need of investment. From courts to prisons, parole and alternatives to custody, each part of the system must be properly funded to cope with the volume of cases.

The Magistrates’ Association has long campaigned to extend magistrates’ sentencing range so that we can take on a heavier caseload. Critics have accused magistrates of being ‘hungry for more power’ or ‘obsessed with locking people up’. This is unfair. In my 17 years as a magistrate, I have never heard a fellow magistrate say this; our only desire is to deliver speedier justice for the people we serve.

I sit at Highbury Corner Magistrates’ Court where you can have a trial in about eight weeks or wait several years for a Crown court trial. The Crown court backlog now exceeds 50,000 cases. Many of these are complex, involving multiple witnesses and defendants. Every delayed case means victims, defendants and witnesses kept in limbo and unable to move on with their lives. For defendants on remand, it means more time locked up and a higher likelihood of losing housing, work and relationships.

The Magistrates’ Association has constantly stressed the detrimental impact of the Crown court backlog on victims. Holding hearings proximate to offences leads to a higher conviction rate; this is why domestic violence offences are fast-tracked in many courts. Over the last five years, more than 1,600 rape and sexual assault cases in England and Wales have collapsed due to alleged victims withdrawing from prosecutions. Pausing magistrates’ extended sentencing range makes delivering justice for victims and defendants less likely.  

The reasons for the 4,000 increase in the prison population over the last year are unclear. As magistrates have only had an extended range since May 2022, their sentencing cannot be a major factor. There is no evidence that magistrates are more likely than the Crown court to impose a custodial sentence for the same offence. It is also impossible that speedier justice has been delivered on such a scale to have significantly contributed to the upsurge in prisoner numbers. Very few of the magistrates I have spoken to in England and Wales said they had sentenced anyone for more than six months since the extension.

Regardless of what some commentators or practitioners at the criminal bar might think, I have never once sat in a court where magistrates were pleased to impose immediate custody on a defendant. Magistrates send very few people to prison. They offer community sentences where possible because they know that short custodial sentences do not offer much to assist offenders as little or no work is done with them in prison. Custody is very much a last option – reserved primarily for the protection of the public, if an offender is already serving a sentence for other offences, or if no other alternatives exist. The Magistrates’ Association frequently calls for greater investment in alternatives.

I believe that several factors are behind the increase in the prison population. First, the Probation Service has been recalling more prisoners who are out on licence when they breach their licences. Second, mandatory minimums for knife offences have led to more short custodial sentences. And third, Crown court backlogs are likely to have resulted in a larger remand population.

The association has urged the government to publish its evidence on why the prison population has grown, and to clarify when the pause to magistrates’ extended sentencing range will be restored. Magistrates have devoted 30,000 hours of their own time to the training needed for 12-month sentencing, and those in leadership positions even more. Training leaders personally called our members to ensure they had completed the required training before they could sit in any court where the extended sentencing range might be used. This substantial outlay of volunteers’ time is in danger of being wasted.

The magistracy has undergone significant changes in the past decade, partly due to underfunding and cuts. Half of all magistrates’ courts have closed and the number of magistrates has halved. Magistrates –like all other court users – sit in buildings that are in desperate need of repair. The retiring room at my court has not had anything other than mobile heating or cooling for years.

With over 90% of all criminal cases being resolved in the magistrates’ court, magistrates are the cornerstone of the justice system. The association is urging the government to restore magistrates’ extended sentencing range as soon as possible, and to boost investment in the criminal justice system. It needs to make justice a priority and signal this through increased resources. What it should not be doing is slowing down justice without rhyme or reason.

Mark Beattie JP is national chair of the Magistrates’ Association