Memorandum submitted by the Magistrates' Association (CJ 12)

 

 

Coroners and Justice Bill

 

 

The parts of the Bill about which the Magistrates' Association would like to comment are principally in Parts 3, 4 and 5 and the relevant schedules.

 

 

Part 3: Criminal evidence, investigations and procedure

 

Clauses 81 and following (Eligibility for special measures)

 

The Magistrates' Association welcome the provisions in relation to special measures for vulnerable and intimidated witnesses, but stresses that the decision in each case must be one for the court.

 

Clauses 89 and following (Directions to attend through live link)

 

Live links can be useful in appropriate cases. However, it must be a decision for the court in each case - and the court must satisfy itself that the defendant understands what is happening; and that witnesses are not disadvantaged. It is, of course, essential that sufficient resources are made available if this is to work properly.

 

Clauses 97 and 98 (Bail)

 

Our view is that 48 hours is too long and 24 hours should be the maximum.

 

Part 4: Sentencing

 

Clause 100 and Schedule 13 (Sentencing Council for England and Wales)

 

We question the need to replace the existing arrangements which are already in legislation (Criminal Justice Act 2003. We note that the Gage report stated that the significant information gaps should be filled before further development of the existing legislation - a view supported by the Justice Committee, and shared by the Magistrates' Association.

 

The Bill aims to 'ensure that victims are at the heart of the criminal justice system' and proposes a more consistent and transparent sentencing framework. We would ask, in what way is the current system not consistent and transparent?

The SGC and SAP Sentencing Guidelines - which have only recently been revised - can and do ensure consistency of sentencing. There is no cogent evidence to indicate there is inconsistency in sentencing in magistrates' courts. Indeed, the recent research report Local Variations in Sentencing in England and Wales, MoJ, 2007) into the effect of sentencing guidelines in the magistrates' courts shows that 'while custody rates in magistrates' courts had been relatively stable through time, the range in custody rates had narrowed from 15.7 percentage points in 2003 to 9.8 percentage points in 2006.' It is quite possible that since the latest guidelines were introduced last summer our courts are even more consistent across the country when deciding on whether or not custody is appropriate.

The only data available gives figures suggesting 48% of sentences are 'outside' of the guidelines. This data is based on a limited survey in the Crown Court. These sentences may be below a guideline range due to guilty plea or other mitigating factors or above the range due to serious aggravating factors. Courts must have this measure of discretion

 

The membership of the Council is prescribed in schedule 13. We note that the judicial majority has effectively been reduced from 4 to 2 but we welcome the additional place for magistrates. However, given that magistrates deal with 95% of all criminal matters and the guidelines have most relevance to our courts we would recommend that there should there be more magistrates on the Council.

 

Clause 102 (Sentencing guidelines)

 

Clause 102 (11)(d) places a duty on the new Council to have regard to cost of differing sentences and their relative effectiveness in preventing re-offending.

At paragraph 9.16 of his report, Gage recommends that it would be inappropriate for a duty to be placed on the Council to have regard to Parliament's intentions on resources, together with other matters to which it must have regard, when formulating its guidelines. We support this view.

Clause 103 (Sentencing ranges)

 

We understand that what is set out in Clause 103 is an attempt to describe the process which the existing Sentencing Guidelines Council employs to develop guidelines. However, we believe that it will be impossible to create sufficient categories with ranges and starting points to cover all examples of particular offences. The instances of theft can vary considerably with a wide range of impacts and victims - the same applies to fraud and assault as well as other offences. It must surely be for the sentencer to assess culpability and/or harm based on the actual offence and the surrounding circumstance (103) (2) (a), (b).

 

Clauses 107 and 108 (Sentencing guidelines: duty of the court)

 

Clause 107 causes us particular concerns as we believe that what is proposed will impinge significantly on judicial discretion blurring the distinction between the executive and the judiciary. Clause 107 makes it a requirement that every court must follow the guidelines unless 'in interests of justice'. This is a much stronger requirement than 'have regard to' as required by section 172 of the CJA 2003 and. although we have been told by government that 'there is no intention to remove judicial discretion', we believe that Clause 107, as currently drafted, could have just this outcome.

 

Clause 109 (Resource implications of guidelines)

 

The Bill places a duty on the Council to publish a resource assessment in respect of the guidelines. This is acceptable if, and only if, there is no requirement on sentencers to have regard to the impact on resources when sentencing in individual cases.

 

 

 

Clause 110 (Monitoring)

 

We are quite content that the Council should monitor the operation of its sentencing guidelines. This is right and proper given that sentencing takes place in the public arena. However, we are concerned that there is an increasing trend for eh police and prosecution to use out of court disposals which are not open to public view, nor subject to judicial scrutiny. We would therefore recommend that a duty is placed upon the Council to monitor the operation and effect of out of court disposals which are not open to public or judicial scrutiny.

 

Part 5: Miscellaneous criminal justice provisions

 

Clause 125 (Retention of knives surrendered or seized)

 

Care must be taken to ensure that the effect of the legislation does not prevent maintenance staff from entering the court with appropriate tools.

 

 

February 2009