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Why wholescale reform of the magistracy should come before increasing their ability to use prison

Penelope Gibbs
27 Mar 2016

It is an anomaly in the Western world to have judges with no legal training sentence fellow citizens to prison.  Most countries have no lay justices and, if they do, they have no power to detain those they sentence.  But magistrates in England and Wales want to go the other way.  They want greater powers to use imprisonment and, surprisingly, the senior judiciary seem to be supporting the proposal,  At the moment, magistrates can sentence offenders to prison for up to six months for one offence. They want to increase that minimum to a year.  Currently more serious offences are dealt with in the Crown Court.  But the Crown Court is overwhelmed with sex cases and delays are increasing.

Magistrates say they are competent to do more serious cases, and point out that it would be cheaper to have them done in their courts than in the Crown Court.  But is justice served by moving more cases down to the magistrates’ courts?  Many feel that a judge and jury has a more balanced view of a case than a bench of three magistrates, or a district judge sitting alone.  Magistrates say that the reliability of their judgements is shown by the small number that are appealed. But our research has shown that there are considerable barriers to appealing a sentence, including that the time taken for an appeal to be heard means it is seldom worth appealing a short prison sentence.

Peter Dawson of the Prison Reform Trust and I discussed the problems associated with increasing magistrates’ sentencing powers with the Justice Committee. The Prison Reform Trust and the Howard League for Penal Reform both want to prevent magistrates sentencing to imprisonment. Transform Justice is not saying this, but we are saying that the sentencing powers of magistrates should not be increased.  The first and most important reason is because we do not know what the impact on prison sentences would be.  Anecdotal evidence suggests both magistrates and district judges are readier to use custodial sentences than Crown Court judges.  The Ministry of Justice has a model of the expected impact, but will not publish it. We should not increase magistrates and DJs’ sentencing powers if it leads to more imprisonment. Our prisons are full to bursting, and very little useful work is done in them.  They do not rehabilitate those on short sentences.

The other reason why we should not increase sentencing powers, is that this would simply be a sticking plaster on a broken system, in which the sentencing framework is too punitive, and in which the use of community sentences is hampered by judges lack of awareness about them. Magistrates get three days formal training before sitting.  Many issues are not covered in the course, including what causes crime, and the most effective means of reducing crime. So magistrates and professional judges use prison, without getting training in its use and abuse.

The Justice Committee has asked some great questions about the role of the magistracy. I only hope that enough people dare to challenge the status quo.