Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Professor Lee Bridges (CJSB 19)

  I understand that the Home Affairs Committee is conducting a pre-legislative scrutiny of the forthcoming Criminal Justice and Sentencing Bill. I very much welcome this opportunity to comment on two specific aspects of the proposed legislation. These are plans to increase generally the sentencing powers of magistrates and to introduce a modified form of "sentence discount" in the magistrates' court.

1.  Magistrates' Sentencing Powers

  The White Paper, Justice for All, sets out plans to increase the general sentencing powers of magistrates' courts, initially to a maximum of 12 months custody for a single offence but with the possibility of later raising this to 18 months. It appears to be the intention to implement such increases prior to the introduction of the new sentencing framework outlined in Chapter 5 of the White Paper. Indeed, it remains unclear exactly how the Government intends to translate these increased powers for magistrates into the new sentencing system.

  I believe there is strong evidence to suggest that any general increase in magistrates' sentencing powers will greatly exacerbate the problem, identified in the Halliday report, of over-use by magistrates of relatively short custodial sentences. As is now widely acknowledged, such sentences are expensive, contribute massively to prison overcrowding and costs, and do little to prevent further offending. Indeed, the policy aim articulated in the White Paper and by Home Office ministers on several occasions since is the exact opposite, to discourage the use of short custodial sentences in favour of more community-based punishment.

  It appears that the Government has proposed increased sentencing powers for magistrates as part of an alternative package of reforms to reduce the number of cases in the Crown Court, now it has dropped attempts to restrict the right of defendants to elect jury trial. Instead, both defendants and magistrates are to be encouraged to have more either way cases dealt with summarily. To this end, the White Paper adopts a proposal I have long advocated, to abolish the right of magistrates to commit cases to the Crown Court for sentence following conviction in the magistrates' court. This is intended to remove uncertainty for defendants on where they might be sentenced if they agree to their cases being tried at magistrates' court. As part of this package, the Government also proposes to increase the sentencing powers of magistrates' courts so as to give magistrates greater confidence to agree to hear more either way cases.

  Unfortunately, these two changes could serve to cancel each other out. In particular, by doubling or even tripling the potential length of sentence that might be handed down by magistrates, the degree of uncertainly for defendants and their legal advisers over sentencing by magistrates will actually increase. This could in turn encourage more of them to exercise their right to elect for Crown Court. Also, the Halliday report pointed to the much greater inconsistency in sentencing between magistrates' courts than exists at Crown Court. The scope for such inconsistency will be greatly widened if magistrates' sentencing powers are increased.

  More importantly, increasing magistrates' sentencing powers at this time, and before the Government's overall sentencing reforms are enacted or implemented, would be to 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. In this context, while there is evidence that governments can "talk up" sentencing, it is much more difficult for them to use their influence to bring about a reduction in the courts' use of custody, especially if at the same time the Government is legislating to increase their formal powers in this respect.

  The most telling evidence as to the likely effect of increasing magistrates' sentencing powers lies in the statistics on their current practices. As Appendix 2 of the Halliday report points out, between 1989 and 1991 the number of defendants given custodial sentences by magistrates increased nearly three-fold, from 18,200 to 53,000 per year (+191 per cent). In the same period there was a much more modest increase in numbers sentenced to custody by the Crown Court, from 42,600 to 44,600 (+5 per cent). This suggests that it was primarily magistrates who were responsible for the massive increase in the use of prison, especially short custodial sentences of less than six months, in this period. Sentences of less than six months more than doubled between 1989 and 1999.

  There is also the evidence relating to cases which are sent by magistrates to the Crown Court, either for trial or sentence. In the period from 1991-92 to 2001-02, the number of defendants electing Crown Court declined very substantially, from 35,584 to 14,956 (-58 per cent). As a proportion of all either way cases in each of these years, cases tried in the Crown Court as a result of defendant elections fell from 5.7 per cent in 1991-92 to just 2.9 per cent in 2001-02. On the other hand, the number of either way defendants sent to Crown Court by magistrates, either under a direction for trial or a committal for sentence, has been less amenable to change. In 1991-92 a total of 72,294 either way cases were sent by magistrates to the Crown Court for trial or sentence, and in 2001-02 this figure stood at 55,578 (-23 per cent). However, this was in the context of a considerable fall in the total number of either way cases before the courts, from 625,291 in 1991-92 to 511,104 in 2001-02. As a result, cases sent by magistrates for trial or sentence in the Crown Court as a percentage of all either way cases declined only very slightly, from 11.6 per cent in 1991-92 to 10.9 per cent in 2001-02.

  Within these latter figures there was a significant shift following the introduction of the "plea before venue" procedure in 1997, in how cases were sent to the Crown Court by magistrates. The aim behind "plea before venue" was to reduce the number of cases magistrates felt it necessary to send to the Crown Court, by requiring defendants to give an indication of their plea before the venue decision was made. It was hoped that if magistrates could take account of early indications of guilty pleas and the effects of this in terms of sentence discounts, they would be able to retain more such cases for sentencing. However, "plea before venue" does not appear to have had such an effect. While the number of either way cases directed by magistrates to the Crown Court for trial has been reduced, from 50,158 (or 9.8 per cent of all either way cases) in the year before the start of "plea before venue", to 36,740 in 2001-02 (7.8 per cent of all either way cases), there has been a corresponding increase in magistrates' committals for sentence, from 4,463 in the year before "plea before venue" (or 1.1 per cent of either way cases) to 18,838 in 2001-02 (3.7 per cent of either way cases). In fact, the immediate effect of "plea before venue" in the intervening years was actually to increase the overall proportion of either way cases sent by magistrates' decision to the Crown Court either for trial or sentence.

  If there has been relatively little change in magistrates' decisions to send cases to the Crown Court, there is also the evidence of what happens to such cases in terms of sentencing once they reach the Crown Court. As the Auld report demonstrated, in 1999 no fewer than 19,000 out of 43,000 (44 per cent) either way cases tried in the Crown Court where there was an conviction resulted in the defendant receiving a non-custodial sentence, and in a further 5,000 such cases (12 per cent) the Crown Court handed down a custodial sentence of less than six months (ie within the existing powers of magistrates). While these figures include a minority of defendants who elected for Crown Court, those relating to magistrates' committals for sentence are even more revealing. These are cases where the defendant would have indicated a guilty plea, or opted for trial before magistrates and been found guilty, and where magistrates would therefore had had full prior knowledge of the circumstances of the offence. On the basis of this knowledge, the magistrates would have decided to send the defendants to Crown Court, presumably because they considered that a sentence of longer than six months custody was deserved. Yet, in 7,000 out of 20,000 (35 per cent) such cases in 1999 the Crown Court gave a non-custodial sentence, and in a further 5,000 (25 per cent) a custodial sentence of less than six months.

  The above evidence shows that:

    —  While the incidence of defendant elections for Crown Court has declined sharply, magistrates have continued to send between 10 per cent and 12 per cent 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".

    —  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.

    —  The majority of cases sent by magistrates to the Crown Court that result in a sentence receive a punishment within the existing powers of magistrates.

  These facts demonstrate, at the very lest, that no extension in magistrates' sentencing powers is necessary for them to deal with the majority of either way cases they currently send to the Crown Court. More worryingly, they strongly indicate that if magistrates are given the opportunity to do so through being granted increased sentencing powers, they may in fact give large numbers of defendants who they currently refer to the Crown Court more severe punishments than are imposed by the Crown Court at present. In other words, magistrates might impose custodial sentences where the Crown Court gives a non-custodial one, or sentences of more than six months where the Crown Court gives one of less than six months. The number of cases likely to be affected could amount to well over 30,000 a year. This is an indication of the scale of the risk the Government would be running, in terms of further increased use of custody by magistrates, under its present proposals.

  There are alternatives to the Government's proposals. One would be to delay any increase in magistrates' sentencing powers until the new sentencing framework proposed in the White Paper has been implemented. Indeed, the Government has yet to indicate what level of sentencing power it would consider appropriate for magistrates to exercise within the new system of sentencing outlined in Chapter 5 of the White Paper. A second alternative would be to restrict any increase in sentencing powers to District Judges sitting in magistrates' courts. This would allow for the potential effects of such increased powers to be more closely monitored and influenced through such measures as sentencing guidelines and training, as they would be being exercised by a much smaller and more professional group within the judiciary. It may also be regarded as more rational to distinguish the role and powers of professional District Judges from those of lay magistrates in this way.

2.  Sentence Discounts in Magistrates' Courts

  My concern in respect of this proposal can be more briefly stated. The White Paper states that.

  Where magistrates have decided they could try a case which could also be tried in the Crown Court, they could give the defendants an indication of the sort of sentence (custodial or non-custodial) they might receive if they were to plead guilty at that point. Magistrates would be aware of relevant information, including previous convictions, in doing this. This will encourage guilty defendants to plead guilty at the earliest opportunity, rather than electing jury trial and then pleading guilty. An advance indication given by the magistrates but rejected by the defendant would not tie the hand of the Crown Court judge when sentencing on any subsequent guilty plea. A trial conducted by magistrates after an advance indication would be handled by different magistrates from those who gave the indication.

  The implication of this proposal is that the present "plea before venue" procedure, introduced in 1997, would be scrapped and replaced with an advance indication of sentence. Under the present procedure, a defendant is first asked to indicate a plea before magistrates decide whether to accept jurisdiction to try the case. However, the Government plan is that magistrates should revert to first deciding on venue without knowledge of the defendant's likely plea and, where they decide to accept jurisdiction, to then offer defendants an advance indication of sentence should they plead guilty. The lack of prior knowledge of plea by magistrates in deciding venue could result in more cases being sent to the Crown Court for trial (as distinct from committals for sentence), thereby reversing the impact of the introduction of "plea before venue". More importantly, it seems likely that most defendants who remain in the magistrates' court will wish—or be advised—to avail themselves of an advance indication of sentence. This will mean that much greater information on the circumstances of offences and defendants will need to be made routinely available to magistrates' court at an early stage of proceedings. This contrasts with the present situation, under "plea before venue", where a significant proportion of either way defendants in magistrates' courts decide, on their own volition or under advice from defence lawyers, to plead guilty at the earliest opportunity.

  It therefore appears that the Government has failed to think through the implications of its plans for sentence indications on the early procedures in magistrates' courts. The Government needs to be asked to explain exactly how it intends this new procedure to operate and to give an indication of its likely impact in terms of delay and cost of early magistrates' court proceedings.

  I have written extensively on the above issues, in particular in my response to the Auld review where I set out in some detail alternative proposals relating to case allocation and sentencing powers as between lay magistrates, District Judges and the Crown Court. I would be happy to send a copy of this to you. In the meantime, I attach a letter[1] I have written today to Lord Falconer at the Home Office challenging his claim made at the recent Bar Conference that Home Office research undermines my arguments by demonstrating that the Crown Court makes greater use of custody than magistrates in similar cases.

November 2002

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