By Charmaine Chang
In 2003, the commencement of Section 154 of the Criminal Justice Act 2003 extended magistrates’ sentencing powers to 12 months’ custody to clear court backlogs. At present, crimes warranting a jail term of more than 6 months must be sent to Crown Court for sentencing. However, the extensive discretionary power for legally untrained magistrates has been criticized as the “height of irresponsibility” . By bringing this crisis in the criminal justice system to my attention, JUSTICE’s Magistrates Project prompted me to look beyond the black-letter law and personally assess the processes and outcomes in respect of lay magistrates’ decision-making powers.
i) The backlog in criminal courts
The increasing backlog of cases has been exacerbated by COVID and has impacted the victims and defendants negatively. Some defendants are held in custody on remand while waiting for months and years to have their cases heard. Victims found it harder to recover from their traumatic experiences, as they revisit those experiences on the postponed trial date. The caseload in the Crown Court increased substantially since mid-2019, in particular, London’s Crown Court backlog increased by 72% (compared with 18% in the Southwest). The use of remote hearings may be invaluable, but the backlog of cases continued to be a barrier to efficient justice.
ii) The strengths of magistrates’ courts
The perceived strengths of magistrates include awareness of “local needs”, “broad experience of life” with diverse perspectives, fact-finding, bail, and sentencing. However, often, three magistrates were needed to spend time in simple cases such as road traffic cases. Further, it is not unusual that the defendant does not turn up or does not contest the matter as we have observed. It appears that just one magistrate is enough deal with these straightforward matters to fully utilise manpower. Extending the sentencing power of magistrates allowed them to deal with more cases, not leaving resources idle. In fact, the Ministry of Justice estimates that extending the sentencing power of this could free up almost 2,000 extra days of crown court time a year. Thus, to fully utilise the core strengths of magistrates and reduce the backlog, increasing custodial sentencing powers appear to be an attractive option.
iii) Risk of injustice
However, the fact that magistrates are not legally qualified casts doubts on the wisdom of increasing their sentencing powers. Nicholas Moss JP warned against the risk of magistrates’ sentences being more punitive than those currently imposed by the Crown Court, and it was said to be “a legitimate public policy concern”. It is concerning that the outcomes of more serious crimes, such as attempted murder, serious injury, were left in the hands of lay magistrates. Based on our observation, we also recognised that in practice, there is too little time for magistrates to make decisions with a heavy caseload. These factors led to insufficient reasoning from magistrates.
Beyond imposing additional pressure on the prison population as envisioned by successive governments, short sentences are shown to have a disproportionate impact on the impecunious and marginalised. Not only do sentences less than 12 months provide no real support to individuals to overcome issues concerning mental health or homelessness, but it also worsens their vulnerability. Alternatively, the Ministry of Justice’s community-based solutions might be even more effective in preventing crimes. The All-Party Parliamentary Group (APPG) on women in the penal system further argued that arrests of women are often unnecessary and disproportionate for being drunk or being a nuisance. While I do not fully endorse such a proposition of reducing arrests on a particularly vulnerable group, it is clear that supplementary measures are needed to safeguard substantive equality.
iv) Lack of Transparency
The commencement of s 154 is also criticised for its lack of transparency. Previously. Transform Justice has asked for information on the Ministry of Justice’s modelling on increased sentencing power of Magistrates, for access to the Ministry of Justice’s modelling on increased sentencing powers for magistrates. Yet, the Secretary of State responded that a model predicting the policy impact on all stakeholders across the criminal justice system was “not currently available”. Given the lack of impact assessments, its impact on the prison population is obscure.
While the new measure appears to empower magistrates to deliver swifter justice, the paramount concern lies in maintaining public confidence of just sentencing, subject to modern expectations of more efficient modelling. I believe further training and development of magistrates’ courtroom performance needs to be improved by the introduction of a specific qualification. Additional guidance, impact assessment and details of magistrates’ training should also be made available to the public to allay concerns. Overall, the court observing experience has been rewarding in terms of practical knowledge and the insight gained into the criminal justice system. However, one limitation of the project might lie in the variety of cases, in which the application of the Bail Act 1976 may not apply to each bail hearing. Nonetheless, such observations raise serious issues to be analysed and examined further and are an incredible opportunity to see the law in action.