Tuesday, 19 September 2017

Double or Bust? - Magistrates' Sentencing Powers

The retiring Lord Chief Justice has been reported as suggesting that magistrates' sentencing powers should be doubled to enable them to sentence offenders to prison for 12 months for a single offence.  This power has been on the statute books for many years but has never been brought into force.  His reasoning is that a huge cost saving will be made because magistrates will retain jurisdiction for more trials and more sentences.

There are three kinds of criminal offences in England & Wales: summary offences triable only in the magistrates' court, either way offences that can be tried in the magistrates' court or the Crown Court and indictable offences that can only be tried in the Crown Court.

When a defendant is brought before the magistrates' court if the offence is triable either way the prosecution will make representations about whether the case should be tried in the magistrates' court or the Crown Court.  The magistrates will then make a decision whether to retain jurisdiction or whether to send for trial to the Crown Court.  If the likely sentence on conviction would be more than 6 months' imprisonment then jurisdiction would ordinarily be declined because that is the maximum prison sentence magistrates can impose.  If the magistrates decide to retain jurisdiction the defendant has the right to elect trial in the magistrates' court or the Crown Court.

Doubling magistrates' sentencing powers would result in magistrates retaining jurisdiction in many more cases.  It, of itself, would not interfere with the defendant's right to trial by jury.  Trial in the Crown Court is hugely more expensive than trial in the magistrates' court and it takes longer for trials to be heard.  On the face of it, therefore, increasing magistrates' sentencing powers would both save money and time.  That sounds an attractive proposition.

Lord Thomas has the legal advantage over me in every respect but one and that is that I have practised in the magistrates' courts a lot more recently than he has and that recent experience causes me to hesitate to welcome this proposal.

There are essentially two schools of thought concerning the efficacy of prison.  The one I subscribe to is that prison is a necessary evil, being a place to exclude from society those that represent a clear risk to the safety and wellbeing of others and for whom rehabilitation in the community is impossible.  The other is encapsulated in the epithet: prison works.

Whichever school of thought you identify with the common ground is that prison is hugely expensive.  We have the highest prison population in our history and the highest in Western Europe.  Increasing magistrates' sentencing powers may have the effect of preventing defendants from coming before the Crown Court, it is however unclear why it would in any way cause the prison population to be reduced.

The vast majority of magistrates are unpaid volunteers.  It represents one of the most commendable forms of public service.  However I can't be the only person who finds it peculiar that unpaid volunteers are empowered to imprison their fellow citizens for up to 6 months.  We don't confer sentencing powers on juries so why do we permit lay magistrates to send people away?  We don't let enthusiastic and well meaning amateurs have a go at surgery so why do we allow them to make such fundamental decisions about people's liberty?

There is such a thing as a professional magistrate, called a District Judge, a magistrate with legal training and experience.  In contrast to lay magistrates they can sit and make decisions alone.  I therefore have an alternative suggestion to that of Lord Thomas.  Rather than doubling the sentencing powers of lay magistrates might it perhaps not be a solution to confine the power of imprisoning people in the magistrates' courts to the professional judges.  This surely would have the effect of ensuring that only those that absolutely have to be in prison are sent to prison.

1 comment:

  1. I recall, from my limited layman's knowledge of the law, that the Stipendiary Magistrate (now known as the District Judge) had the power to impose longer custodial sentences than a lay magistrate; and the common practice in the magistrates' court was for repeat offenders to go up before 'The Stipe' if their offences weren't quite serious enough for the Crown Court.

    So what's changed? Do we actually need a new power, or this extension of existing powers?

    I'm hoping that one of the learned legal professionals who comment here can contradict my cynicism: this looks like a bad response to a lack of resources - cuts, in other words - resulting in the District Judges being overworked and unable to hear all the cases that they ought to.

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