Government to Temporarily Suspend Increased Sentencing Powers of Magistrates' Court

The Government has announced its intention to temporarily suspend increased sentencing powers recently granted to the Magistrates' Court.

The Magistrates' Court has been able to impose a maximum custodial sentence of 12 months on any offender convicted of a single either way offence committed on or after 2nd May 2022.

Prior to that the court could impose a maximum sentence of 6 months' custody for such an offence, although 12 months' custody was available in cases where two or more either way offences were being sentenced.

In my experience, there are very few cases before the court where the increased powers were available. I have never been on a bench that has sentenced using the increased powers. Having asked the question quite a few times, I know very few colleagues that have been involved in such a sentencing decision.

Well under 5 percent of cases before the court result in a custodial sentence and the new powers were available in only a tiny proportion of those (those where the offence was committed since 2nd May 2022 and likely to attract a sentence within the range of 6-12 months' custody). Furthermore, because those cases are invariably at the more serious end of the spectrum, many of those would have be sentenced by District Judges.

In recent months the Government has become increasingly concerned about the booming prison population. Quite simply, there are not enough prison places available for those being remanded or sentenced through the court system.

Because of that Operation Safeguard - contingency plans that have been in place for almost two decades - has been implemented to relieve pressure on prison places. This involves holding overnight prisoners in police cells instead of local prisons.

It is not the first time such measures have been needed, although the timing on this occasion sits rather conveniently with the Magistrates' Court's increased sentencing powers.

The Government sees the suspension of those powers as a quick and easy way of taking the strain off the overburdened prison estate. It's a cheap, myopic fix that bypasses the blindingly obvious idea that we might need an increase in prison places.

Addressing Magistrates in an email earlier today, the Lord Chief Justice, Lord Burnett of Maldon, said: "I would wish to reassure Magistrates that the Government’s decision is no reflection on the way in which the new powers have been used by Magistrates. 

"The Lord Chancellor has also written to assure me of this. As the Government recognises, it was expected that cases would move through the Courts more quickly as Magistrates’ Courts can dispose of cases faster than the Crown Court, freeing up an anticipated 1700 Crown Court sitting days. That in turn will have increased the prison population.

"I am very grateful to Magistrates for the way they have taken on the increased responsibility associated with the extended sentencing powers, which has enabled the Courts to hear many more cases than would have been possible otherwise."

"The change will have the effect of easing the immediate pressures on the prison estate as some sentencing hearings and trials of either way cases move to be conducted in the Crown Court.

"In the medium term, all these cases will be tried there and, where relevant, defendants will be sentenced.

"I very much hope it will be possible to recommence the power in the future so that the Magistrates Courts can again play as full a role as possible, including in supporting the reduction of Crown Court backlogs.

"The Lord Chancellor has confirmed to me that this will be kept under review."

The increased sentencing powers of the Magistrates' Court will be suspended from 30th March 2023.