Mixed reviews for a government change of heart on magistrates’ sentencing powers.

The Ministry of Justice confirmed on the 10th March 2023 that they have reversed the change made just over ten months ago to magistrates’ sentencing powers.

This time last year, magistrates were given the power to impose a sentence of 12 months’ prison rather than the previous maximum of 6 months for a triable either-way offence. ‘Triable either way’ meaning that an offence could be tried in either the Magistrates’ Court or Crown Court.

The reversal of this change will come into force on 30 March 2023.

This change was designed to reduce a large backlog of cases at the Crown Court, partly caused by the COVID-19 pandemic. The idea was that more people would have their cases heard by magistrates and completed there, rather than being sent to the Crown Court and adding to an already bulging backlog of cases.

According to the government, the backlog is no less of an issue than a new problem: overcrowded prisons!

So now, to avoid adding to that crisis, the maximum sentence magistrates can impose is, once again, going to be a maximum of 6 months.

The general opinion among legal commentators seems to be that this backtracking measure to combat the prison problem does not mean that there is no longer a backlog at the Crown Court.

The Magistrates’ sentencing powers are governed by Section 224 of the Sentencing Act 2020. Schedule 23, part 8, paragraph 14A of the same Act, states that the Secretary of State can amend magistrates’ powers whenever it is necessary and, with Regulation 2, he has done so. From the 30th March 2023, the new, old, amendment will come into force. This means that anyone convicted before that date can still be given a 12 months prison sentence at the Magistrates’ Court. However, from that date, the maximum will revert to 6 months’ custody for all convictions regardless of when a case first began.

Barristers, in general, seem to be pleased with this reversal, having voiced strong concerns when the increase was originally announced. They felt that the change would increase the prevalence of short prison sentences and lead to a rise in the number of defendants electing to go to the Crown Court for their trial. They had also stated that the amendment would lead to more appeals going to the Crown Court.

This view is an understandable one, given that the Crown Court generally has a lower conviction rate than the Magistrates’ Court. The draw of remaining in the Magistrates’ Court is often the lower costs and limited sentencing. Facing a possible 12-month custodial sentence, it was felt to be more likely that a defendant would opt to risk the higher costs at the Crown Court, in order to go in front of a more diverse Jury, rather than a bench of three magistrates, or a district judge.

In contrast, Magistrates have reacted with disappointment. They believe that the change had been working and delivering justice more quickly, and that this change of heart will serve to increase the inefficiency of the court system and undo any improvement so far.

It has to be said that government and Law Society statistics do not necessarily support this view, though, in the context of criminal court proceedings, ten months is a relatively short trial period for change.

The language used by the Ministry of Justice when announcing the move back to the 6-month limit, suggests that these kind of alterations were expected, to deal with issues that are most pressing at that moment, and that they reserve the right to tinker with this again in the future. What both magistrates and barristers seem to agree on, is that this balancing act of amendment and reversal is indicative of a larger issue. With both courts and prisons overbooked, many think that a game of legislative whack-a-mole is not enough to paper over the cracks. It seems likely that more drastic change will be needed in the future.

The majority of motoring offences that we deal with at Geoffrey Miller Solicitors, including drink and drug driving, are summary-only offences (can only be tried in the Magistrates’ Court). These offences were and are still subject to the maximum 6-month prison sentence limit for a single offence.

We do, however, regularly deal with several triable either-way offences including, but not limited to;

• Dangerous driving;
• Fraud – relating to parking documents, licences, or vehicle registration;
• Serious injury or death by careless or dangerous driving;
• Injury caused by driving whilst disqualified;