The restriction of jury trials was heavily promoted by the government for months as a way of reducing the Crown Court backlog. In July Sir Brian Leveson suggested restricting jury trials and setting up an intermediate court to adjudicate many “either-way” offences like shoplifting and drug possession, which are often currently dealt with by a judge and jury. He suggested that a Crown Court or district judge should preside over the intermediate court flanked by two lay magistrates. He also suggested that many current either-way offences should be “down-tariffed” (the maximum sentence reduced) so that they can be heard in the magistrates’ court. He did not suggest giving judges in the magistrates’ courts greater sentencing powers. Magistrates and district judges in the magistrates’ court can currently sentence for up to a year’s imprisonment (for one offence) and have only recently had their sentencing powers increased to this level for the second time. 

This week the government gave their response to Leveson’s proposals. Or rather they gave the bare bones of their response because they published some bullet points, but no document and no detail. So it’s pretty difficult to assess the proposals. But it looks like they diverge quite a bit from the Independent Courts Review published by Sir Brian Leveson:

• The government now says one judge should preside over the intermediate court not three
• They propose that either-way offences with a maximum prison sentence of three years should be dealt with in the intermediate court but don’t suggest reducing the maximum sentence length of any current either-way offences
• They suggest increasing the maximum sentencing powers of judges in magistrates’ courts to 18 months for one offence (maybe moving to 24 months if necessary) 

Transform Justice responded to the Independent Courts Review’s call for evidence with pragmatic ideas to reduce the Crown and magistrates’ court backlogs. When the review was published, we had reservations about some of the proposals, but we have even more qualms about the government response. We know from our CourtWatch project that rough justice is too often meted out in the magistrates’ courts. Our main concerns about the new proposals are:

1. They put too much power in the hands of one judge. Everybody has biases and blind spots. Juries and panels of judges at least allow for different points of view to be expressed and some consensus reached between them. It is rare in continental systems for single judges to convict and mete out prison sentences. In England and Wales only district judges have so much power and it’s arguable they have too much (Crown Court judges sentence on their own but don’t convict). District judges sit on their own in magistrates’ courts, able to remand, convict and sentence a defendant to prison without conferring with anyone. The only other trained lawyer in the trial court might be the prosecutor, since many defendants are unrepresented and district judges don’t need to be supported by a legal advisor. There are good and not so good district judges. The very worst ones are case hardened and too ready to use remand and short prison sentences.
2.  If we don’t reduce the sentences for either-way offences we will be leaving significant powers to imprison in the hands of a single judge. A three year prison sentence is a life-changing experience, which can destroy individuals, livelihoods and families. It is true that some relatively minor offences such as shoplifting, drug possession and assault emergency worker are “either-way”, but it is the level of the potential sentence which should generate a considered and balanced judgment of evidence, not the nature of the offence. Assault emergency worker is a crazy offence to be either-way given that such an assault of a police officer/nurse/firefighter involves no lasting physical harm and defendants who lose their rag and shout can be prosecuted for it. But parliament in their wisdom legislated to quadruple the maximum sanction for common assault against an emergency worker from six months imprisonment to two years. If they want to stop juries having to judge whether someone slightly shoved a police officer, they should lower the maximum sentence, rather than list the case in front of a single judge.
3. We have no data on the impact on remand, convictions and the length of sentences of the government’s proposals. Our prisons are full to bursting and do little useful rehabilitation. We already have the highest per capita use of imprisonment in Western Europe. Transform Justice has asked the Ministry of Justice many times over the years for their assessment of the impact on sentences of increasing magistrates’ (and district judges’) sentencing powers. The government has never come up with proper data despite many recent changes in these powers. When magistrates’ sentencing powers were reduced in 2023 (from twelve months maximum to six months) the government said this was because use of short prison sentences had increased. When they reversed the power back to twelve months in 2024 they denied there would be any impact on custodial sentences. No modelling was done on the impact on remand. Lawyers are convinced juries are less likely to convict and that Crown Court judges are less punitive than magistrates or district judges. They may be wrong but surely we need hard evidence?
4. If we put more power in the hands of magistrates we should ensure they are better trained and recruited. Magistrate numbers have been declining for years, through government design. The recruitment process is sclerotic (routinely taking over two years from start to finish) and is favouring candidates who are professional, white and privately educated. In the Lammy Review David Lammy called for targets to ensure magistrates are diverse. But this week he just said the government would invest in recruitment. Evidence from our Courtwatch project suggests some magistrates need better training particularly in testing the arguments made by advocates. Of the defendants who are remanded and tried in magistrates’ courts, two thirds do not go on to get an immediate custodial sentence.
5. The government has supported Sir Brian’s proposal to abolish the “default” right of appeal from the magistrates’ court to the Crown despite zero evidence that it is contributing to the backlog. Sir Brian proposed that defendants should have to put forward a legal argument for appealing their conviction or sentence from the magistrates’ court. Appeals from the magistrates’ court are already declining in number because many unrepresented defendants don’t know how to appeal and (if used) lawyers’ fees are derisory. The few appeals that are heard do take a long time (since the whole original case needs to be reheard) but this is because trials in the magistrates’ court are not recorded so there is no reliable record of what was said. Without routine recording, better funding for lawyers and a huge amount of help for unrepresented defendants to put together a legal argument for their appeal, these appeals will collapse if the government’s reforms go through. Meaning yet more miscarriages of justice than there are already. 

It would be great to have a document so we can actually appraise the details of the government’s plans but, on the evidence so far, they look as if they may lead to more miscarriages of justice and more people in our already over-crowded prisons. Of course we need to reduce the backlog but at what cost?