6Expanding the role of magistrates
Our predecessor’s main conclusions and recommendations
102.Most of the evidence received by the 2016 Committee supported the implementation of legislation to increase magistrates’ sentencing powers from six months to 12 months for a single offence.121 The Committee was sympathetic to the idea of magistrates adopting problem-solving approaches122 for offenders sentenced to community penalties. It recommended that the MoJ produce a timetable for increasing magistrates’ sentencing powers by commencing section 154 of the Criminal Justice Act 2993, first publishing any modelling of the impact of doing this, and that magistrates be empowered to supervise community orders and be consulted on any strategy for problem-solving courts.123
Increasing magistrates’ sentencing powers
103.John Bache JP, the Chair of the Magistrates Association, said that his organisation supported increasing magistrates’ sentencing powers to 12 months’ custody for a single offence, which he argued would relieve pressure on the Crown Court:
I think the Government are worried that the number of people in custody would increase. I do not think there is any evidence for that at all. When magistrates’ powers were increased from six months to two years in the youth court, the number of young people in custody decreased very dramatically, from about 3,500 to about 900.124
There was, however, no clear agreement on this point among magistrates at our informal evidence session. While it was recognised that pressures on the Crown Court would be relieved, it was also suggested that the level of appeals might increase, and that magistrates might need more training were they to take on this additional power.
104.Duncan Webster JP, the National Leadership Magistrate, said he was not aware of the MoJ having undertaken any modelling of the potential impact on the prison population of increasing magistrates’ sentencing powers; it was unclear to him how many of the “either way” cases that found their way to the Crown Court—around 20 per cent of such cases—led to a conviction with a sentence that magistrates could have imposed with increased powers.
105.The NGOs who provided evidence did not agree on this issue. Philip Bowen, from the Centre for Justice Innovation, had “always publicly supported the idea that the magistrates’ court should have higher sentencing powers”, but Penelope Gibbs from Transform Justice could not support such a change unless modelling of its impact was first made available.
106.On this question, Senior District Judge Arbuthnot gave a cautious response:
I would be a bit worried that there would be an increase in prison sentences, but maybe I am wrong. I do not have a strong view, other than thinking it ought to be tested out, ideally in a city area first. [ … ] From what I have heard, prisons are very full at the moment and I would not want them to be fuller than they are already.125
107.When we reminded the then Minister, Lucy Frazer QC MP, that the legislation necessary to increase magistrates’ sentencing powers is already on the statute books, she told us that the matter was “still under consideration”; the Ministry of Justice was looking at sentences as a whole, including short sentences, and would engage with the Magistrates Association as a key organisation in that discussion.
108.In the report of our inquiry on Prison population 2022: planning for the future, we recognised that a key factor contributing to the size and composition of the prison population is the relative use of community sentences and custodial sentences. 126 The then Prisons Minister Rory Stewart recognised research evidence that short prison sentences made people more likely to commit crime, and wished to see fewer of them.127 Our report repeated the recommendation made in our earlier report on Transforming Rehabilitation that the Government should introduce a presumption against short custodial sentences. 128
109.Our report on Prison population: 2022 welcomed the Government’s change of direction on the use of short prison sentences. We consider that short custodial sentences are less effective than community sentences, but in cases where custody is unavoidable we consider that magistrates should have the power to impose custodial sentences of up to 12 months in cases that would otherwise be sent to the Crown Court for sentencing. As part of its review of sentencing, the Government should implement this measure, subject to establishing a positive evidential basis for doing this from a suitable modelling exercise on the effects of such a step.
Magistrates’ confidence in community sentencing
110.In spite of evidence of growing political support for reducing the use of short-term prison sentences in favour of making greater use of community sentences, the Magistrates Association noted that sentencers lack confidence in community sentences, identifying a range of reasons. 129 In summary:
- Sentencers having limited understanding of the content of community sentences, and in particular the community options available in their own area;
- Reduced influence over the content of community sentences; for example, sentencers can order an offender to carry out a maximum number of days on a rehabilitation activity requirement (RAR) but have no control over the number of days completed or activities undertaken; and
- Concerns about poor management of community sentences—for example, breaches not being brought to court appropriately and delays in the start of a programme that lead to offenders failing to complete their ordered number of unpaid work hours.
111.Jo King JP, Co-Chair of the Magistrates’ Engagement Group, observed that under the Transforming Rehabilitation regime there had been a drop-off in confidence in community sentences, not helped by the “one-step removal of the Community Rehabilitation Companies [CRCs] from magistrates”;130 magistrates had also been concerned about delayed responses to breaches of community orders.131 She considered it important to make sure that magistrates “get adequate feedback from the CRCs and the National Probation Service on how an individual is performing on that order so that we can use them appropriately.”132 Similar concerns were expressed by Senior District Judge Arbuthnot, who commented:
When we give a community order, we expect the service to pick up the defendant and make sure that he starts complying with it, whether it is unpaid work or perhaps an alcohol treatment requirement. Curfew seems to work pretty well; if you give a curfew, it seems to be imposed immediately. [ … ] The worrying thing is that, if you do not have confidence that the punishment you are imposing will be carried out, you might think, “What about a prison sentence?”133
In our report on Transforming Rehabilitation, we raised the issue of the decline in use of community sentences and concluded that sentencer confidence was a significant issue.134 In our subsequent report on Prison Population: 2022, we drew similar conclusions; our recommendations included the following:
We wish to hear in response to this report how specifically [the Secretary of State] intends to improve sentencer confidence in community penalties, which is a significant issue and challenging to remedy. This should include an assessment of the adequacy of existing advice provided to courts by the National Probation Service about a defendant’s history to enable sentencers to base their decisions on a fuller understanding of offending behaviour and personal circumstances.135
112.The Government’s response to our Transforming Rehabilitation report was published on 7 June 2019.136 This confirmed the policy direction set out in the May 2019 response to its July 2018 consultation, “Strengthening probation, building confidence”, whereby responsibility for all offender management services will be held by the National Probation Service. The consultation response notes evidence suggesting that community sentences are more effective in reducing reoffending than short custodial sentences and acknowledges that many sentencers feel they lack knowledge about what happens to an offender after sentencing. It goes on to state that “[i]mproving the confidence of sentencers in probation delivery will be an important element in making greater use of the full range of alternatives to custody available to the court [ … ]. It is our assessment that our revised model will allow us to more quickly rebuild this confidence. 137
113.We are pleased that the Government’s response to its consultation on probation services acknowledges the need to improve the confidence of sentencers in probation delivery. We expect the Government to clarify, by the autumn of this year, its strategy for increasing sentence confidence in community sentences.
Additional roles for the magistracy
114.Many participants in our informal evidence session were open to the idea of magistrates taking on additional roles, although there was some uncertainty about how they might go about doing so, and what additional roles might be permitted.138 We had our attention drawn to a successful project that runs in Northamptonshire, through which magistrates volunteer to take part in Youth Order Review Panels, giving regular, informal supervision outside of the courtroom to young people who are subject to youth referral orders.139 In relation to this project, Lady Justice Macur referred to the “absolutely convincing” aptitude of the magistrates and told us that all safeguards (for example, relating to confidentiality and conflicts of interest) had been thought through.140,141
115.Duncan Webster JP told us that magistrates were interested in a more extensive role, but thought that the idea of the Government considering opportunities to expand the role of the magistracy “has really hit the buffers.”142 He also noted that the problem-solving courts initiative that had gained momentum under Michael Gove [when Secretary of State for Justice] had not been resurrected.143 Penelope Gibbs from Transform Justice expressed strong support for problem-solving approaches, although she referred to courts being under “huge pressures on time” that could undermine the quality of hearings.144 Phil Bowen told us that the Centre for Justice Innovation had pushed extensively for problem-solving approaches, and drew our attention to a “flourishing” of such approaches in Scotland, where a problem-solving court had recently been opened in Aberdeen; and to new substance abuse and domestic violence courts in Northern Ireland. We were grateful to receive additional written evidence from the Centre providing more information about problem-solving approaches in Scotland and Northern Ireland, as well as identifying some of the initiatives in England and Wales, including the Family Drug and Alcohol Court (FDAC) model within the family jurisdiction.145
116.Lady Justice Macur emphasised that problem-solving courts take considerable resources: “[t]hey are very expensive to run and must be maintained; it cannot be a here today, gone tomorrow idea.”146 Lucy Frazer QC MP accepted that “it would be helpful in some cases to have problem-solving approaches.” She referred to her own visit to an FDAC in London, which enabled her to “see how the multiagency approach worked,” but noted that not all local authorities were taking up the opportunity to have an FDAC.147
117.Ms Frazer subsequently wrote:
I am persuaded by the logic that underpins problem solving courts, and respect the expertise of those advocating them. I am aware that experience has shown that there can be some challenges in applying this approach, including the upfront resource implications and the need for legislation to implement some of the models being proposed. 148
Acknowledging some of the “positive but limited” evidence on the value of problem-solving approaches such as FDACs, the then Minister undertook to re-look at the report of the 2016 working group and told us that she would be “very happy to provide you with its conclusions when I have done this, along with my assessment of any next steps.”149
118.The Government response to our report on Prison population: 2022150 suggested that there were “practical difficulties, particularly in the magistrates’ courts, of facilitating ongoing contact between offenders and individual sentencers in substantial numbers of cases.” However, the Government had “not discounted the possibility” that elements of the problem-solving approach, including court progress reviews, might contribute to better outcomes for offenders in appropriate cases; it would explore whether returns to court to revoke or review for good progress could support offenders’ motivation to desist.
119.The potential value of magistrates’ involvement in problem-solving approaches is well illustrated by the Northamptonshire example drawn to our attention. We welcome the Government’s willingness to explore whether elements of a problem-solving approach, including court progress reviews, might be used to contribute to better outcomes for offenders in appropriate cases.
121 By section 154 of the Criminal Justice Act 2003, which has yet to be commenced.
122 ‘Problem-solving’ courts provide assessments of individual offenders, taking into account factors that may result in repeat offending and seeking to reach agreement with them in a non-confrontational way. Such courts rely on having a consistent relationship between the judge and the offender and often adopt a multi-disciplinary approach, bringing together several agencies at one site.
123 The relevant Chapter of the Committee’s report, including recommendations, can be found here.
126 House of Commons Justice Committee. Prison population 2022: planning for the future. Sixteenth Report of Session 2017–19, HC 483, April 2019
127 Paragraph 236. This view was endorsed in the Government response to our report on the Prison Population 2022 (7th Special Report - Prison Population 2022: Planning for the future: Government Response to the Committee’s Sixteenth Report of 2017–19).
128 Justice Committee, Transforming Rehabilitation, Ninth Report of Session 2017–19, HC482, June 2018, para 251
130 In 2013, the MoJ dissolved 35 self-governing probation trusts and created Community Rehabilitation Companies (CRCs) to manage offenders who pose a low or medium risk of harm, together with a National Probation Service (NPS) to manage offenders who pose higher risks. The NPS provides pre-sentence reports to the courts.
134 Justice Committee, Transforming Rehabilitation, HC482, June 2018, page 50
135 House of Commons Justice Committee. Prison population 2022: planning for the future. Sixteenth Report of Session 2017–19, HC 483, April 2019
136 8th Special Report - Transforming Rehabilitation: Government Response to the Committee’s Ninth Report of Session 2017–19
137 Strengthening Probation, Building Confidence: Response to consultation. Ministry of Justice, May 2019
138 Our predecessor’s report noted the statutory provisions that currently permit, or restrict, the involvement of magistrates in supervising community orders (paragraph 112).
139 See Proposed Model for the National Implementation of Court Reviews of Youth Rehabilitation Orders, Northamptonshire Youth Offending Service, February 2016.
141 Q125 We also received some helpful additional material from Dominic Goble JP about the increasing use in Northamptonshire of statutory provisions enabling the Youth Court to obtain better information about the child in question, to support decision-making (MAG0003)
148 Letter from Parliamentary Under-Secretary of State for Justice, on role of the magistracy follow up, dated 14 March 2019
149 Ibid
150 See footnote 127
Published: 18 June 2019