Appendix 1: Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023/298)
Letter from The Rt Hon. the Lord Hunt of Wirral MBE, Chair of the Secondary Legislation Scrutiny Committee, to Mike Freer MP, Minister for Courts, Legal Services and International, Ministry of Justice
The Secondary Legislation Scrutiny Committee gave initial consideration to these Regulations at its meeting yesterday. The Committee is concerned that the Regulations reverse a policy change implemented in May 2022 without good evidence on the merits of the change, except to relieve pressure elsewhere in the criminal justice system.
Supplementary information from the Ministry of Justice (MoJ) explained that the MoJ has “been monitoring internal court and prison data, but there has not yet been an analysis of the wider impact—hence the pause to review now”. We are surprised that the May 2022 increase is being reversed so quickly and before an analysis of its broad effects, rather than after.
The question of evidence to support the policy change also arose at Report stage of the Judicial Review and Courts Act 2022, which provided the power being used in these Regulations.20 In the debate, the then Minister, Lord Wolfson of Tredegar, said that he had “heard” the request for “proper, in-depth analysis” of the effect of changes in the maximum sentence and would “consider what data we can publish that would go towards meeting that point”.
I would, therefore, be grateful if you could please provide the Committee with all the analysis that has been undertaken and any other information on which you relied when deciding to reduce magistrates’ capacity. This should cover (but may not be limited to) the following areas, in which Members of the Committee were specifically interested:
- The court and prison data referred to above.
- A comparison of the average sentences awarded by magistrates and by the Crown Court in the types of cases being removed from magistrates’ jurisdiction by this instrument.
- The monetary costs and benefits of the change. Members noted that costs might include the additional expense of processing cases in the Crown Court rather than magistrates’ courts, and the “wasted” costs of training magistrates in relation to longer maximum sentences that they cannot now impose.
- The impacts on victims of slowing down the trials of those charged with crimes.
- The impact on reoffending for those who will have to wait longer for their trial.
22 March 2023
Letter from Mike Freer MP to Lord Hunt of Wirral
Thank you for your letter of 22 March 2023, regarding your Committee’s initial consideration of these Regulations.
The Government has always been clear that we needed flexibility to vary Magistrates’ Court Sentencing Powers (MSPs), and that is why it took the power to do so last year in the Judicial Review and Courts Act 2022. I would like to reassure the Committee that this change is no reflection on the magistracy or their use of the extended powers: the Government places immense value on the continuing and outstanding contribution of Magistrates’ to the justice system.
As the Committee will know, we are currently experiencing downstream pressures in the criminal justice system as manifested in Operation Safeguard and it is important that the government ensures a cohesive cross-system response to this growing pressure. Whilst increased MSPs is not the only factor behind this pressure and the data on the impact of MSPs is still limited, it is safest to temporarily reduce MSPs to 6 months so that the Crown Court retains power over decisions in respect of longer sentences, particularly given the Crown Court backlog is again recovering following the impact of the Criminal Bar Association strike action.
It is nearly one year on from the implementation of the extended powers, and this pause gives us time to properly review the measure, taking into account how it is being used and assessing relevant data across the criminal justice system, with a view to reinstating the powers in due course should this be supported by the evidence.
I am happy to provide the Committee with the relevant analysis that has been undertaken by my Department, and other information we have relied on in our decision to reduce (MSPs) as requested in your correspondence.
Court and Prison data
In the short term, this change will reduce the number of people in custody. Our provisional estimates indicate that by reducing MSPs from March 2023 the overall adult male prison population could reduce by up to 500 prisoners by March 2025. However, over the longer term, the overall number of people in custody will be the same as it would have been, absent this change coming into force, given this change delays defendants entering prison. This estimate is based on reversing the original assumptions we made when calculating the impact increasing MSPs would have on freeing up sitting days in the crown court at the time it was introduced.
Since extending MSPs in May 2022 we have been monitoring data relating to the risks highlighted in the Impact Assessment (IA) in order to identify any unsustainable impacts from the change, including increases in election and appeal rates and prison impacts:
- The number of elections for Triable Either Way offences at Crown Court receipt has largely remained stable from May 22 (17.3%) to Sept 22 (17.4%) since increased MSPs were introduced but mainly for offences not likely to be impacted by the MSP change - for example, offences that usually attract over a 12-month sentence. This compares to 17% in May 2021.
- The number of appeals to the Crown Court have remained consistent since the introduction of increased MSPs and therefore are not a cause for concern.
- We expected an increase in 6-12 months custodial sentence disposals from the Magistrates’ court since commencement last May, as modelled in the Impact Assessment. However, this growth has been faster than our internal modelling initially anticipated. This may be due to an under-estimation of the impact of faster timescales at Magistrates’ court, but could also be due to the disruptive action by the Criminal Bar Association last year.
- In relation to sentencing trends, our monitoring has so far not identified that Magistrates are giving sentences that are different to those that would have been handed down by the Crown Court for equivalent cases, though as noted below, it is not possible to make like for like comparisons.
A comparison of the average sentences awarded by Magistrates and by the Crown Court in the types of cases being removed from Magistrates’ jurisdiction by this instrument
It is not possible to make like-for-like comparisons as every case is different and there is no accurate counterfactual–each sentence will be the result of a consideration of the facts of each case. Furthermore, given the number of variables and external factors at play, including the action by the Criminal Bar Association, it is not currently possible to draw clear conclusions on the specific impact of MSPs on sentencing behaviour. We are, however, aiming to include an analysis of whether there has been a change in sentencing behaviours as part of our planned review of the measure, if feasible.
The monetary costs and benefits of this change. Members noted that costs might include the additional expense of processing cases in the Crown Court rather than Magistrates’ courts, and the ‘wasted’ costs of training Magistrates in relation to longer maximum sentences that they cannot now impose
Our intention, subject the findings of the planned review, is to reinstate the powers in due course as long as this is supported by evidence. This would mean that the investment in training Magistrates will not have been wasted.
On wider system costs, this change introduces no new demand to the system, but will see the transfer of some work, mainly shorter sentencing hearings, to the Crown Court–therefore there is no direct financial pressure created.
The impacts on victims slowing down the trials of those charged with crimes
It is anticipated that reducing MSPs will introduce some delay to trials in the Crown Court through the predicted increase in the number of outstanding cases. It is worth noting however that trials for cases expected to attract a custodial sentence of up to 18 months should still be retained in the Magistrates’ courts in line with the ‘Allocation to the Crown Court Guidance and Good Practice’.
We have invested a significant amount of extra money in the Criminal Justice System to help improve waiting times for victims of crime and reduce the Crown Court backlog. This includes recruiting up to 1,000 judges in 2022/23 across all jurisdictions and removing the limit on sitting days in the Crown Court for the second financial year in a row, to enable us to sit at maximum capacity over the coming years.
We also recently announced the continued use of 24 Nightingale courtrooms into the 2023/24 financial year and have opened two permanent ‘super courtrooms’ in Manchester and Loughborough, allowing up to an extra 250 cases a year to be heard across England and Wales.
We are seeking to ensure that victims can access the support they need by quadrupling funding for victim and witness support services by 2024/25, up from £41m in 2009/10. We have committed £154m of this budget per annum on a multi-year basis for this spending review period (2022/23 to 2024/25 inclusive). This will allow victim support services to build capacity and strengthen the resilience of services.
The impact on reoffending for those who will have to wait longer for their trial
There is no available data to assess the impact of this measure on reoffending for those waiting longer for their trial. As noted above, cases expected to attract a custodial sentence of up to 18 months should still be retained in the Magistrates’ court for trial if the defendant does not elect. We do not envisage that this change will lead to more suspects released on bail pending trial. It is for the courts to decide, on a case-by-case basis, whether a defendant presents such a bail risk, including for the protection of the public, as to warrant custody before they have been convicted. Varying MSPs does not change this process.
27 March 2023
20 HL Deb, 31 March 2022, cols 1747 and 1751–2 [Lords Chamber].