In November, the lord chancellor announced that the custodial sentencing powers of magistrates would be increased from six to 12 months, to deal with the increased backlog of Crown court cases. The measures came into force on 18 November. If you are getting a Groundhog Day feeling, it is because I wrote almost the same thing in 2022.
The lord chancellor then, Dominic Raab, used the pandemic as justification for the measure; his reasoning being that it was necessary to combat the stratospheric increase in the Crown court backlog for which the pandemic was apparently the sole cause. The current lord chancellor Shabana Mahmood makes no mention of the pandemic, presumably because she spent a fair amount of time in opposition blaming the Conservative government for the backlog.
Instead, Mahmood refers to the government’s temporary change to the eligible standard determinate sentence release point from 50% to 40% (releasing prisoners after they have served 40% of their sentence rather than 50%) as creating the ‘headroom’ to enable them to (once again) increase the magistrates’ court maximum custodial sentencing powers from six to 12 months for a single either-way offence. This will, in her view, ‘bear down’ on the large remand population and help reduce the Crown court backlog.
If you find it difficult to follow Mahmood’s reasoning, you are not alone. I have in good faith tried to figure out exactly how the government expects the one to affect the other in the manner described, but it is not obvious.
While we may be unable to see the mechanisms at work within the government’s reasoning, we should at least look at any data that might give us a clue as to whether the decision will have the desired effect.
In respect of the potential effect on the prison population, we can look at what happened when the Conservative government tried this for 11 months between May 2022, when the change came into force, and March 2023, when the Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 pressed pause.
The Institute for Government Performance Tracker (IGPT) reports that the prison population was 78,039 in May 2021; 80,185 by May 2022; 82,834 by November 2022; and 84,372 by March 2023. This equates to a 2.8% increase in the year preceding its implementation, and a 5.2% increase for the year during its implementation – almost double.
It is therefore hard to argue that the change caused any ‘bearing down’ on the prison population. It does tend to suggest that giving magistrates increased powers to send people to prison resulted in more people being sent to prison, faster – a ‘bearing up’, if you will.
In respect of the potential effect on the number of cases going up to the Crown court (and thereby potentially increasing the backlog of cases), while it is true to say that the IGPT data shows a slight decrease between Q2 and Q4 of 2022 (24,294 to 23,454), by Q1 of 2023 (the last quarter of the magistrates’ increased powers), the number had risen again to 24,946. Taking a step back and looking at the data over the last decade, the figure was 36,693 in Q3 of 2013 and since then there has been a steady trend downwards, obviously unrelated to the sentencing powers of the magistrates.
As to the Crown court backlog, in May 2022 the figure stood at 59,428 and by the following year it had increased by 9% to 64,810. But then there was a barristers’ strike during this period, which must have had some effect on the rate at which Crown court cases were dealt with.
So, what can we conclude from this data? Not much. The last time the magistrates’ court’s sentencing powers were increased in this manner more people were sent to prison, the number of cases going up to the Crown court was temporarily reduced (but no more than they had been steadily reducing over the past 10 years), and the backlog of Crown court cases increased (but probably for a reason that has nothing to do with any of this at all).
The government must know all this, so it may not be unreasonable to think that it has taken this step simply to be seen to be doing something in the face of the prison crisis. Though there are other actions that would be more effective, I can understand why they are politically untenable. This country would simply not accept significantly fewer non-custodial sentences being meted out, and Labour has already pushed the boat out by reducing the standard determinate release point. Prioritising remand cases, thereby pushing bail cases back to 2029 and beyond, seems equally unpalatable, and unless it is possible to build 10 mega-‘Huf Haus’-style prisons in three weeks, help in terms of more actual prison places is not going to happen any time soon.
I can only conclude that the government has not shown us its workings because it knows it has not got it right. For ministers, something must be done; this is something; and therefore it must be done.
Stuart Matthews is a partner and head of private crime at Reeds Solicitors, Oxford
7 Readers' comments