Increase in sentencing powers
(Clauses 137-138)
131. Clause 137 will increase the general sentencing
limit to 12 months' imprisonment for any one offence. Clause 138
will increase the limit for consecutive terms of imprisonment
to 65 weeks (ie where sentences for more than offence are to run
consecutively). This will apply to both summary and either way
offences. In effect, the new "Custody Plus Order" will
replace all short prison sentences of less than 12 months, with
the exception of intermittent custody (Clause 163). Under Custody
Plus, there are strict limits for the custodial period, which
must not be less than two weeks, and not more than 13 weeks (Clause
163(5)). Presumably, therefore, when Custody Plus is in force,
a magistrates' court will not be able to impose a sentence which
has a custodial period of more than 13 weeks (about three months).
132. There is some concern that the increase in the
limit on sentencing powers will be implemented before the
new Custody Plus scheme is in force.[145]
Professor Lee Bridges provided us with an analysis of the statistics
which, he said, showed the following:
"[1] While the incidence of defendant elections
for Crown Court has declined sharply, magistrates have continued
to send between 10% and 12% of either way cases to the Crown Court
either for trial or sentence, throughout the past decade, despite
the introduction of reforms such as 'plea before venue'.
[2] At the same time, in cases which magistrates
retain for sentencing, their use of custody has expanded nearly
three-fold over the same period and they are now responsible for
sending more people to prison each year than the Crown Court.
[3] The majority of cases sent by the magistrates
to the Crown Court that result in a sentence receive a punishment
within the existing powers of magistrates [the point being that—by
sending them to the Crown Court the magistrates presumably thought
they deserved a higher sentence]".[146]
133. Professor Lee Bridges concluded that an increase
in magistrates' sentencing powers would:
"send entirely the wrong message from the
Government to magistrates. Rather than discouraging them in their
use of custody, it would be giving a political lead that increased
use of custody is not only acceptable but effectively sanctioned
by the Government".[147]
134. When we asked the Minister for an assurance
that Clause 137 would not be implemented before the Custody Plus
scheme is rolled out, he said:
"I cannot give you that assurance. We have
got to work out precisely what the best timing in relation to
each of the measures is, and in particular whether or not one
increases the magistrates' sentencing power before custody plus".[148]
135. He went on to explain that he could not give
the assurance:
"Because custody plus depends on an increase
in the capacity of the probation service. We do not believe that
increasing the magistrates' courts' powers will necessarily lead
to any significant increase in the size of the prison population,
but before we introduce custody plus we do need to be sure the
supervision of defendants upon being released from that short
period they spend in prison is available. The costings of the
Bill that have been provided make provision on that basis".[149]
136. We are concerned that the proposed increase
in magistrates' sentencing powers will only inflate the prison
population unless it is implemented after the Custody Plus
scheme is rolled out.
143 
