Porridge off the menu?

Nothing new under the sun. You practise in criminal law long enough you find that what got abandoned 5 to 10 years ago as being hopelessly outdated is suddenly the great innovation. For example the foundation of the Crown Prosecution Service was all about putting prosecuting on a statutory footing thus creating a clear demarcation between the police as investigators and Service lawyers as prosecutors. And yet it was recently suggested (by some police officers unsurprisingly) that a potential solution to the backlog would be returning charging powers to the police, at least for some offences. Not a good idea in my opinion but also not the theme of this blog. 

Instead the theme of this blog is the backlog and is an evolution of my last post which is that if a solution to the backlog is to be found it is in sentencing policy. It has today quietly been revealed that magistrates’ sentencing powers are being reduced from 12 months imprisonment to 6 months. Which was the height of their powers for all the time I’ve ever been in practice until only a year ago. It was made plain by barristers individually and collectively in the form of the Criminal Bar Association that doubling magistrates’ sentencing powers was a very bad idea and for very good reasons.

A huge amount of the ‘churn’ in the criminal justice system comes about because of low lever offending and short prison sentences. Short prison sentences provide almost no rehabilitative prospects due to the lack of time for any meaningful programmes, education or training. Consequently offenders get banged up for a short unpleasant stay where they get to associate with other criminals and criminality on the inside. Then they get out with their personal relationships fragmented, their family ties frayed, their employment prospects diminished and their likelihood of offending almost certainly increased. 

This costs the taxpayer exorbitant sums of money and means that prison cells are occupied by a vast number of ‘see you next time’ offenders who pose a nuisance to society but not necessarily the threat of serious harm and whose potential to be encouraged, cajoled and educated away from a life of crime is never explored or given up on at the first sign of a setback. 

In ‘normal’ times that is pointless and expensive but it’s tolerated. In the midst of a stuffed prisons crisis this poses immense systemic difficulties. When police cells are being repurposed to house prisoners we have a problem and it’s a problem that requires a solution. And, as I have argued before, it requires a sentencing solution. 

Returning magistrates’ sentencing powers to the status quo ante collapse of the whole crumbling edifice is a small step in the right direction. But it does not connote vision or boldness of the kind that is required to keep HMS Criminal Justice afloat and the HMPs manageably occupied. 

One way of achieving that would be not to halve magistrates’ sentencing powers but to remove them entirely. Sentencing is a difficult part of the criminal justice process. It is part that seasoned lawyers of decades of experience get wrong even with the assistance of Sentencing Guidelines. It might reasonably be asked why we confer the power on enthusiastic amateurs to deprive offenders of their liberty. 

After all it is not English criminal justice practice to give juries a say in the sentencing process so why is this power conferred on the lay magistracy? It would be perfectly possible to reserve powers of imprisonment to District Judge carrying out a specific sentencing role in the magistrates’ court. Or to have a system whereby any offending convicted in the magistrates’ court in jeopardy of immediate imprisonment is committed for sentence to the Crown Court, a court of record in which only professional lawyers are involved in the sentencing process. 

Some might argue that this would be bureaucratic and procedurally burdensome. But would it really be more burdensome to society than the cost of incarcerating thousand of prisoners on short prison sentences when in reality those sentences provide no long terms solution to the risks posed by those offenders. 

We’ve tried most things before but we haven’t tried this. Maybe it’s time we did.