Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023

Tuesday 16th May 2023 Lords Chamber

Motion to Regret

20:06

Moved by

[Lord Ponsonby of Shulbrede]

That this House regrets that in laying the Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023/298) His Majesty’s Government have not yet published the evidence to justify this change of policy, which has potential ramifications for slowing down the justice system for victims, witnesses and defendants; further regrets that sitting magistrates have spent thousands of hours cumulatively on training to properly sentence using the 12 months training pack; and calls on His Majesty’s Government to announce the expected date for the review of the effect of reducing sentencing powers to six months.

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in moving this regret Motion, I remind the House that I am a sitting magistrate in London. I thank the Magistrates’ Association for the briefing that it has provided, as well as the Secondary Legislation Scrutiny Committee for its work in asking, the Minister, Mike Freer, to flesh out the reasons for this change to magistrates’ sentencing powers.

The instrument that is the subject of this regret Motion reduces the maximum custodial sentence that magistrates’ courts can impose for a single either way offence from 12 to six months, reversing a change put in place in May 2022. The higher sentencing powers had been in place for only 10 months when they were reversed. The May 2022 change did not alter the maximum sentence for any given offence; it simply changed which court might try cases expected to have a maximum sentence of between six and 12 months.

The justification given by the Lord Chief Justice was that, since magistrates’ courts work faster than Crown Courts, the increase sentencing powers had led to an increase in the prison population that needed to be addressed, and that going back to the previous sentencing powers would slow down the increase in the prison population. The Ministry of Justice is also running Operation Safeguard, which is designed to create a vacancy contingency in the male prison estate. Minister Freer has also said that that would be part of a raft of measures to decrease the prison population. We do not yet know what the other measures will be. I want to put on record that the Minister has said that there will be a six-month review on this change in policy.

In his response to the SLSC letter, Minister Freer spoke of downstream pressures on the prison population, namely the recruitment of extra police officers, tougher sentences, more recalls of prisoners on licence, working through the Covid backlog and the Criminal Bar Association’s strike. All these factors have contributed to the growth in the prison population—about 4,000 prisoners in the past year. We do not know how that figure is broken down between these various pressures. In my view, it is unlikely that the change in sentencing powers has played a significant part in the overall increase.

I shall go through the objections to and the questions raised by this change in sentencing powers, first made by the SLSC and then by the Magistrates’ Association. First, when considering the numbers in custody and on bail, those waiting for their trial in custody will have to wait longer because of the far longer backlog in the Crown Courts. When Mr Freer, the Minister, was asked about the increased risk of reoffending of those who are on bail to Crown Courts, he said there was no available data. The SLSC commented that this was indeed a relevant factor and should have been assessed as part of the policy-making process.

On the costs of the two systems, Mr Freer asserted that the change does not give rise to any direct financial pressure because it does not introduce any new demand into the system but simply transfers some cases to the Crown Court. The SLSC was unimpressed by that point and pointed out that Crown Courts take longer to hear cases, involve juries and are very likely to be more expensive.

An analysis of the May 2022 change was promised by the noble Lord, Lord Wolfson of Tredegar, on Report of the Judicial Review and Courts Bill. The SLSC pointed out that no data had been published and called on the Ministry of Justice to complete and publish its review so that a more informed decision could be taken when considering the effect of changing maximum sentencing powers in magistrates’ courts. It also inquired whether more research could be done to see whether sentence lengths vary between similar cases in magistrates’ courts and Crown Courts.

In conclusion, the SLSC said that using the maximum sentence available to magistrates’ courts as a sort of valve that could be opened and closed in response to wider developments that affected the prison population was not an optimum way of making policy, as it failed to consider other potentially important factors. The SLSC said that maximum sentences in magistrates’ courts should be determined by the overall outcomes for society and should be evidence-based, and it believed that this was not the case with the Government’s decision.

Turning to the Magistrates’ Association, I can do no better than refer to what Mark Beattie, the current chairman of the association, has said: “The reaction of magistrates has been very negative. Magistrates each spent three hours completing a mandatory training pack, totalling over 30,000 hours of our own time on our own equipment. Chairs of training committees personally chased up people who had not done the training so they could complete the training before they sat in court. These chairs are feeling particularly aggrieved, both because of the many extra hours they have spent at this task and because they fear that this sudden reversal will have damaged their ability to persuade people the next time they ask them to undertake extra training. They feel personally undermined, and as this is an essential statutory role, it is especially bad if they feel that their ability to perform their duties has been impacted. ‘Why do the training if the rules can be changed so easily?’ is a message that we are hearing. We know, because we have been told, that magistrates are resigning over this matter, although we don’t know the numbers or the locations.”

Of course magistrates will work conscientiously to deal with the cases put in front of them and fulfil the judicial oath they have all taken. However, it is incumbent on the Government, through the Ministry of Justice, to ensure that the decisions taken are properly evidenced-based and that court users can understand the rationale behind those decisions.

I would be grateful if the Minister could give any indication of a timetable for a review of the current sentencing arrangements, and whether that review will take into account the additional factors highlighted by the SLSC and the Magistrates’ Association. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I am sorry to hear that the magistrates were upset by the introduction of this change.

I was articled as a solicitor in the office of the clerk to the magistrates of the Ruabon Bench in north-east Wales. The chairman of the Bench was Lord Maelor, formerly TW Jones, the Labour MP for Merioneth. He had gone down the pit at the age of 14 for 12 shillings a week and later served time in Wormwood Scrubs and Dartmoor as a conscientious objector, which is an unusual beginning for the chairman of the Magistrate’s Bench. He is noted for being the first and perhaps the last noble Lord to burst into song in the middle of a speech in this Chamber. Once when Mormon missionaries called at his terrace house in Rhosllanerchrugog and asked, “Is the Lord within?”, his wife replied, “No, he’s just gone for his cigarettes.”

20:15

To me, TW was the essence of a good magistrate. He was totally involved in the community, sometimes uncomfortably so. If a miscreant came from Rhos, his home village, he would not rest until he had identified his father, his mother, his chapel and his home. I cut my teeth in prosecuting, in front of that Bench, those who had trespassed in pursuit of conies or, worse, poached a pheasant on local estates.

I have always valued the commitment and dedication of lay magistrates and their desire to do justice, whatever the clerk may advise them about the law. I know that they regard imprisonment as a last resort. I must also pay tribute to their work in family courts. Friends of mine who have been or are magistrates have found that area of law to be most rewarding.

What the magistracy has gained, therefore, is not just acceptance but trust in dealing with the 95% of criminal cases which come before magistrates. I have less trust in the motivation of the Ministry of Justice, which is promoting a now traditional Conservative U-turn in policy in the record time of 19 months. So far as I am aware, this is not based on research into the outcomes of the policy announced by Dominic Raab. His expressed purpose in January 2022 was to reduce the backlog of Crown Court cases by 1,700 either-way cases—a reduction of 2% to 3% of what was then a backlog of 60,000 cases and is now said to be 61,000.

I struggle to find any reason in the Explanatory Memorandum for the reversal of the policy. For me, it explains nothing. It says

“we are currently experiencing downstream pressures in the criminal justice system as, for example, 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”.

I do not know what that means. What are “downstream pressures”? What are the other terms that are used in that particular context? I would be grateful if the Minister could address those problems.

Your Lordships might observe that my iPad has gone blank, so I am a little bit lost at this stage. Suffice it to say that we need some justification—some research —to find out what has happened in the last 19 months. Why is the policy now being reversed? Is it simply that magistrates are sentencing for too long a period, or what? What the ministry needs to bear in mind is that they may be passing sentences of between six and 12 months —the short sentences, which, unhappily, do not resolve the problems of the individual. There is no way in which he can be rehabilitated in that time; nor do those problems get dealt with. I therefore look forward to an explanation from the Minister, and I apologise that my script has disappeared.

[Baroness Sater (Con)]

My Lords, I share the anxieties and concerns of the noble Lord, Lord Ponsonby. I declare my interests as set out in the register, including as a former magistrate and, at present, a life member of the Magistrates’ Association.

I appreciate that the criminal justice system is currently experiencing—as the noble Lord mentioned—“downstream pressures”, as manifested in Operation Safeguard. Indeed, as has already been said, Ministers have said that this pause gives them time to review this measure, assessing relevant data across the CJS, with a view to reinstating powers should this be supported by the evidence. Ministers, however, have also been clear that the increase to sentencing powers is not the only factor behind this pressure, and that the data on the impact is still limited. In the light of this, therefore, I question whether it can be justified for this change to be made, given the impact it will have on magistrates delivering speedier justice. Surely it would be better to make this change only if the data clearly suggested that it was a significant factor behind the increased pressure we have seen.

As the noble Lord, Lord Ponsonby, has stated, this change has ramifications for slowing down the justice system for victims, witnesses and defendants, not to mention the hours of training by sitting magistrates. I would be grateful to hear from my noble and learned friend the Minister more on this, specifically regarding the process, what evidence and data are needed and when this review will be concluded.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, considering that we deal with a lot of very big Bills here in your Lordships’ House, this is quite a small issue, but for me, it encapsulates the panicky and misguided way in which the Government constantly tackle big problems such as our prison population and the justice system. It is an example of their wanting a quick fix for something that they have damaged over the last 13 years of austerity and incompetence.

I cannot comment on whether six months or 12 months is right—I do not have a magistrate’s training—but I can say that we have too many people in prison and we have to stop sending so many people to prison, particularly women. We also have to be clear, of course, that people coming out of prison need help if they are not going to reoffend. You cannot fix these big problems with tiny little tweaks such as this.

I do not understand why such knee-jerk reactions happen all the time with this Government. Where is the overview or the long-term planning? Where is the coherence for dealing with these big problems? This Government have tried to fix the whole justice system on the cheap. It has not in fact been cheap, of course, because it is very expensive to keep people in prison and train magistrates, while not giving people the support they need when they come out of prison, so they go on to offend again. Why not have a longer-term plan?

This Government have got, one supposes, another year. Please could they get some expert advice on this sort of thing and not keep flailing around? One minute it is six months, the next it is 12 months and then it is back to six months again. This is not good government; it just does not make any sense to do things like this. The court system is at breaking point and the prisons are way over full, so the Government should really now be thinking about how to solve these two problems. This, I would argue, is not the way to do it. The Government have broken our justice system and are now doing tiny little tweaks to try to fix it, which simply will not work.

[Lord Hacking (Lab)]

My Lords, the House is fortunate in having my colleague and noble friend Lord Ponsonby, and with some reason because he has sat for many years on the magistrates’ courts and has enormous experience of their functioning. We are also lucky to have the noble Lord, Lord Thomas, whose memory stretches back—I dare not ask him how many years—to his early days when embarking upon a career at the Bar, and to a certain magistrate whom he much respected in Wales. We are fortunate, too, to have the noble Baroness, Lady Sater, who is behind the Minister, and who also clearly has much experience as a magistrate, although I think she has ceased to be one.

In my experience, and this goes a long way back, magistrates are on the whole sensible people—after all, having been magistrates for 10, 15 or 20 years, they have become very experienced—and are not great senders to prison. Magistrates are actually reluctant to send people to prison, particularly for the reason that the noble Lord, Lord Thomas, presented. It does not do much good to have somebody in prison for three or six months to set a kind of an example. It does not work, or did not in my experience, for the normal kind of criminal offences involving theft and violence. But it was quite good for motoring offences, because it set a rather good example to all motorists. If the driver of a motor car who is otherwise without conviction misbehaves really badly in driving their car—these are normally citizens who have not had previous convictions —and they are sentenced to prison for a short time, that is a very big shock.

The central issue has been rightly raised by my noble friend Lord Ponsonby and by the noble Lord, Lord Thomas. There should be proper research on the figures to see whether the basis of this is right, because magistrates across the board do not have a record of imprisoning the people who appear in front of them. It seems to me that to change the sentencing policy down from 12 months, which is only a moderate period, to six months is complete nonsense. Magistrates should have that freedom. All that happens is that the appeals go up—in my day—from the magistrates’ sessions to quarter sessions, and, for many years now, to the Crown Court. One of the things that magistrates were able to do—I am sure this remains the position—was that, if they considered that they did not have sufficient powers to sentence the offender for a period of more than 12 months, they could send the case to the higher court and it could be dealt with there.

In summary, we are very spoilt by the presence of those who have experience in magistrates’ courts in this House. There should be proper research and I welcome all of those suggestions.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate, in particular the noble Lord, Lord Ponsonby, whose Motion this is. I also thank the noble Lord, Lord Hunt of Wirral, and his colleagues in the Secondary Legislation Scrutiny Committee for their report. Their comments are understandable; I will say more about the background to this in a moment.

I would first like to make one overarching point. I would like to reassure the House, and through the House the magistracy in general and the Magistrates’ Association, that this change is no reflection whatever on the magistracy or its use of the extended powers. The Government place immense value on the continuing and outstanding contribution of magistrates in the justice system. I believe everyone in this House is very aware of the exceptional work that magistrates do. This has already been mentioned by the noble Lords, Lord Thomas and Lord Hacking, and by other noble Lords.

20:30

I most warmly thank the magistrates, including the noble Lord, Lord Ponsonby—who is a distinguished magistrate, if I may say so—for their service to the justice system. I have obviously seen magistrates in action at first hand. I greatly regret that I never had the opportunity to appear before the TW to whom the noble Lord, Lord Thomas, referred. The dedication and principles explained by my noble friend Lady Sater are alive and well in the magistracy. We rely heavily on them in the justice system and they make a vital contribution. I hope I have clarified that as the most important point to arise from this debate.

That takes me to the question of the three hours of training the magistrates did. The Government’s hope and expectation is that this training is not wasted and, as soon as it is possible to revert to the underlying purpose of the previous legislation and system, that training will come in again extremely usefully.

That takes me on to explain a little more on the background, and I will do my best to explain the circumstances in which the statutory instrument we are discussing came to be made. As your Lordships are aware, in the Judicial Review and Courts Act 2022 the Government took a variable power to alter magistrates’ sentencing limits. It was deliberately a variable power and therefore a cautious approach to enable the Government to deal with unforeseen circumstances in the criminal justice system and to be able to adjust the sentencing powers according to circumstances.

As the House is aware, we are currently experiencing downstream pressures in the criminal justice system. I entirely accept the comment from the noble Lord, Lord Thomas, that this is a somewhat elliptical phrase, but what it means is that currently prison capacity is hovering around 99%. It is quite tight. That is the background to the introduction of Operation Safeguard, which we debated in this House in December 2022. Operation Safeguard is part of a package to manage prison capacity. This statutory instrument takes effect against that background.

Operation Safeguard was announced in November 2022. Meanwhile, the new sentencing powers under this legislation came into force in May 2022. Information available to the ministry in November 2022, six months after the new magistrates’ courts powers came into force, showed that sentences in the six to 12 months bracket had increased by some 35%. In other words, in that period there had been quite a sharp increase in percentage terms, which produced an unexpected and accelerated increase of 500 prisoners coming into the system in that six-month period and the possibility of that trend line continuing.

It may sound a small number, but if you are already bumping right up against capacity you have to step back and consider measures to deal with the risk that is emerging. At that point, I think it may be fairly clear that the department finds itself effectively between the devil and the deep. On the one hand, as has been pointed out, the purpose of the reform in the first place was to try to reduce the pressure on the Crown Court by processing cases more efficiently in the magistrates’ court. That is a perfectly sensible measure. It is the Government’s policy and remains our hope to revert to that policy. On the other hand, as it turned out, with various factors in play, including the distortions caused by the barristers’ strike, the new situation was posing risks to the prison system’s ability to deal with this change in flow, as it were.

It is perfectly true that in a perfect world one would have perfect information, one would be able to do research and one would have all the time one wished to have. Sometimes, however, if I may respectfully say so, Governments are faced with unexpected circumstances, imperfect information and the need to take a decision without delay, and sometimes they have to decide between very unpalatable options. The options here were extremely unpalatable, but the Government decided that they had to do everything possible to avoid running out of prison capacity, albeit at the expense of some increased pressures in the Crown Court. I venture respectfully to suggest that that was a responsible decision that any responsible Government would take in the circumstances I have outlined.

With regard to some of the observations that were made by the scrutiny committee, and have also been made this evening, I respectfully point out that the effect of the statutory instrument we are discussing is simply to revert to the status quo that existed at the time of TW and the other experiences mentioned, namely that magistrates still enjoy the powers that they have enjoyed for decades. That has been a successful system. All we have done is temporarily, we hope, modify the change that was introduced only in May last year.

As to the general comments from the noble Baroness, Lady Jones, which of course I completely understand, that we have too many in prison and what are the long-term plans and so forth, the management of the prison estate and the whole sentencing policy is somewhat outside the scope of our debate this evening. However, the Government are taking, with at least some modest success, quite extensive efforts to reduce reoffending rates and make prison a more effective regime, particularly in relation to prison education, employment and other matters. Indeed, the noble Lord, Lord Thomas, on a recent occasion in this Chamber, praised Berwyn prison in particular for the success that was being achieved there. So we have some encouraging—if only modestly encouraging—and at least positive signs in the system that the Government are beginning to tackle successfully these very difficult issues.

I will briefly mention the somewhat limited effect of this change, in the following respects. First, whether we have the statutory instrument or not, as far as we know, there is no change in the proportion of cases electing for trial in the Crown Court—it has stayed the same. People still have confidence in the magistrates, and some—around 17%—elect for trial. So whether the statutory instrument is there or not, there is no change there.

Secondly, as far as we know, there has been no change in the number of appeals from the magistrates’ court to the Crown Court—that is neutral.

Thirdly, whether the statutory instrument is there or not, there is no effect on the overall length of sentences: there has been no suggestion that magistrates are mis-sentencing or that one does better on sentence in either the Crown Court or the magistrates’ court. As far as we know, it is the same. Therefore, whether the statutory instrument is there or not, there is no effect on the time one actually spends in custody; it is simply a question of which court deals with the sentence.

Fourthly, on the question of the trial, as far as we know—the noble Lord, Lord Thomas, or perhaps the noble Lord, Lord Hacking, made this point—the vast majority of defendants do not elect for trial in the Crown Court; they are content to be tried in the magistrates’ court. They are tried there because, as was pointed out, they have confidence in the magistrates’ court system.

Therefore, the Government’s understanding is that whether we have this recent statutory instrument or the old system, that does not affect trials in the magistrates’ court: you can still have a trial, with the witnesses, the victim and everything as normal. The only difference is the process by which you sentence. So this is a slight change in the process, and more sentencing is being done in the Crown Court. The Government’s view is that, in the very unfortunate circumstances with which they were faced, that was the lesser of two evils, to put it bluntly. That is the explanation.

I hope I have dealt with the various questions, and, in the circumstances, I invite the noble Lord, Lord Ponsonby, not to proceed with the Motion.

[Lord Hacking (Lab)]

Before the Minister sits down, has he any figures for the occasions when the magistrates do not consider that they have sufficient powers under the current regime and therefore send the accused to the Crown Court for sentencing?

[Lord Bellamy (Con)]

I do not have that figure with me, but I will write to the noble Lord, Lord Hacking, with it.

[Lord Ponsonby of Shulbrede (Lab)]

I thank all noble Lords who took part in this interesting and short debate. I query one statistic that the Minister used: he spoke about a 35% increase in sentences between six and 12 months during the six-month period after the introduction of the increased sentencing powers for magistrates’ courts. That seems a high figure. The SLSC report projected an increase of perhaps 500 prisoners over a two-year period because of that increase in sentencing. To me, that sounds a lot less than 35%, but, nevertheless, I take the Minister’s broader point.

In the Minister’s conclusion, he described the Government’s course of action as the lesser of two evils, but there are many more than just two evils. A number of evils leading to the increase in the prison population have been identified in this debate. The whole point of the debate is that we do not know the proportion of those evils which are leading to the increase in the prison population by 4,000. The Minister has not given any extra information so that we can judge whether the course of action taken by the Government has addressed the more serious of the various evils leading to the increase in the prison population. The point of the SLSC report was that the Government used a cruder mechanism when using the sentencing powers of the magistrates’ courts as a sort of valve for regulating this, when so many other factors are leading to the increase in the prison population. Nevertheless, it has been an interesting debate, and I hope that the Government will look at the data in the round and review this decision again in the coming months. I beg leave to withdraw my Motion.

Motion withdrawn.