Lawyers warn courts backlog will INCREASE with new sentencing powers

Lawyers warn courts backlog will only INCREASE when magistrates get new powers to sentence up to a YEAR in jail because more suspects will ‘take their chances’ with the jury in Crown Court – and UK’s prison population will SOAR

  • Kirsty Brimelow QC said new powers would see people opt for crown court trial
  • She said there was ‘less incentive’ at magistrates if jail sentences are increased
  • Comes after the Colston Four opted for a jury trial where they were acquitted
  • Extinction Rebellion activists also chose a trial which led to not guilty verdicts 
  • Dominic Raab said the move would free 2,000 days of Crown Court time a year
  • There is a backlog of 60,000 Crown Court cases and 300,000 in magistrates’
  • The new powers will come into force ‘in coming months’, according to the MoJ 
  • But legislation will come with an ‘off switch’ so the new powers can be revoked 

Giving magistrates more sentencing powers will increase court backlogs as more defendants will choose to ‘take their chances’ in front of a jury at crown courts, lawyers have warned.

Justice Secretary Dominic Raab yesterday said magistrates would be able to jail offenders for up to 12 months, doubling the current maximum.

He said the move will free up around 2,000 days of Crown Court time a year, as fewer cases will have to be referred to a judge for sentencing.

However, lawyers have today said the proposal risks seeing defendants, fearing a longer prison sentence being handed down by a magistrate, choosing a trial in front of a jury, or pleading guilty in a crown court where statistics show they are less likely to be imprisoned.

International and national human rights and criminal lawyer Kirsty Brimelow QC said defendants may ‘take their chances’ and go up to crown court, rather than risk a lengthened imprisonment from a magistrate.

Barrister Max Hardy said the proposal would ‘cost the taxpayer a lot of money’ as crown court trials are ‘dramatically more expensive’ than those heard in the magistrates’ court, while an increase in the number of prisoners serving short term jail terms would also hit the public purse.

Mr Raab’s announcement comes after the Colston Four – who threw a statue of slave trader Edward Colston into Bristol Harbour in 2020 – opted to stand trial in front of a jury, where they were eventually found not guilty of criminal damage.

Three Extinction Rebellion activists were found not guilty of obstructing the railway last week after choosing a crown court trial which prompted fears over whether other cases are also likely to result in protesters being freed.

Figures show more than 60,000 Crown Court cases are outstanding in England and Wales, plus more than 300,000 in magistrates’ courts. 

International and national human rights and criminal lawyer Kirsty Brimelow QC said defendants may ‘take their chances’ and go up to crown court, rather than risk a lengthened imprisonment from a magistrate after Justice Secretary, Dominic Raab, announced measures to increase sentencing powers for magistrates

The Colston Four – who threw a statue of slave trader Edward Colston into Bristol Harbour in 2020 – opted to stand trial in front of a jury, where they were eventually found not guilty of criminal damage

Kirsty Brimelow QC told Times Radio she did not think the new sentencing powers would make a dent in the court backlogs.

She said: ‘The incentive for defendants to remain within the magistrates’ court is because their sentencing powers are lower. If they’re increased, there’s less incentive to remain there.’

She said data shows magistrates are ‘more likely to imprison than in the crown court’. 

She added: ‘I think this could potentially increase the backlog by defendants within the magistrates’ court thinking “I’m not going to stay here, I’m more likely to be sentenced to imprisonment”.

‘And also the sentencing powers increased on the length of time I’m going to get here. So therefore I will take my chances and go up to the crown court.’ 

Justice Secretary Dominic Raab said: ‘Along with the Nightingale courts, digital hearings and unlimited sitting days, we will deliver swifter and more effective justice.’

The lawyer also said somebody convicted and jailed could then appeal, under the proposal of sentencing powers, removing magistrates to sit and hear the appeal in a crown court.

‘Whichever way you look at it,’ she added, ‘it’s very difficult to understand the Ministry of Justice logic that this actually is going to assist with the backlog.’

Barrister Holly Oliveira said the increased power for magistrates would result in ‘more people electing to crown court, more appeals, more injustice’.

Mr Hardy, anticipates increasing sentences to six to 12 months will have ‘a negligible effect on the Crown Court backlog but may have a substantial effect on the short term prison population’.

Criminal offences are split into three categories: summary, which are only heard in a magistrates’ court and have a maximum sentence of six months; either-way, which are tried by either a magistrate or a jury and defendants have a complete right to elect a trial by jury; and indictable offences which can only be heard in a crown court by a jury.

Mr Hardy told MailOnline: ‘The factors that lead to a defendant’s decision to elect trial by the magistrates or by jury are obviously specific to each case.

‘But they usually include the following: trials happen much much more quickly in the magistrates, if the defendant is paying privately or worried about costs upon conviction, trial in the magistrates is much cheaper, and the defendant might hope that upon conviction the magistrates will not commit for sentence.

‘My bigger concern is that (the new measure) is unlikely in fact to reduce the Crown Court backlog but could lead to a real proliferation of short prison sentences.

‘Beyond the “clang of the prison gate” and “short sharp shock” where people think they cannot return to prison which may deter some from further crime, in general it could lead to a constant churn with minimal prospects for rehabilitation.

‘This could put taxpayers to very considerable expense with no demonstrable improvement to the criminal justice system.’

Mr Hardy said it may be possible that, under the new measures, criminal offences are reexamined to consider what might be an ‘either way’ offence or a ‘summary’ offence and therefore heard in front of a magistrate, to reduce the backlog at crown courts. 

MailOnline approached the Ministry of Justice for comment. 

The Colston Four – Rhian Graham, 30, Milo Ponsford, 26, Sage Willoughby, 22, and Jake Skuse, 33 – were prosecuted for pulling an Edward Colston statue down during a Black Lives Matter protest on June 7, 2020, in Bristol while a huge crowd was present.

The prosecution said it was ‘irrelevant’ who Colston was and the case was one of straightforward criminal damage, but the defendants were acquitted by a jury at the city’s Crown Court earlier this month.

The verdict prompted a debate about the criminal justice system after the ‘Colston Four’ opted to stand trial in front of a jury and did not deny involvement in the incident, instead claiming the presence of the statue was a hate crime and it was therefore not an offence to remove it.

The acquittal cannot be overturned and the defendants cannot be retried without fresh evidence, but Section 36 of the Criminal Justice Act 1972 allows the Attorney General, following a submission from the Crown Prosecution Service (CPS), to ask a higher court to clarify a point of law.

It is not a means to change the outcome of an individual case.

Then last week MPs blasted an ‘outrageous’ decision by a jury to unanimously clear three Extinction Rebellion activists of obstructing the railway – after a judge cited their right to protest under the European Convention of Human Rights.

The group claimed their actions were justified by their Christian faith and fears for their grandchildren, but angry politicians said the verdict set a ‘dangerous precedent’ and gave a ‘green light’ for people to commit crime.

(From left) Martin Newell, Sue Parfitt and Philip Kingston stand together on October 18, 2019

Former university lecturer Philip Kingston, 85, Anglican priest Reverend Sue Parfitt, 79, and Father Martin Newell, 54, all climbed on top of the Docklands Light Railway train during the morning rush-hour in London.

XR has said that the so-called ‘Shadwell 3’ case was one of a series of trials involving its activists this year in front of a jury.

The verdict fueled concerns that police could stop arresting protesters or the Crown Prosecution Service could stop charging them with crimes if there is a general expectation that they will be freed – and that all those who do end up in court will demand a jury trial because they have a greater chance of being let off.

Kingston, Parfitt and Newell were charged with obstructing an engine or carriage on the railway, but were cleared by a jury at Inner London Crown Court.

If the DLR protesters had been found guilty at a magistrates’ court under section 36 of the Malicious Damage Act 1861, they would have faced up to six months in prison.

This would have increased to two years imprisonment’ if they were convicted at a crown court. The trio would have also each faced an unlimited fine at either court.

Crown Courts currently have a backlog of 60,000 cases in England and Wales while magistrates’ courts have 300,000 cases pending. Pictured: Brighton Magistrates’ Court

Powers to increase magistrates’ maximum sentencing powers were first passed into law in 2003 – but have never been brought into force.

The changes are limited to ‘triable-either-way’ offences meaning that defendants can still opt to have their case heard by a jury.

Bev Higgs, chairman of the Magistrates’ Association, said: ‘We have been campaigning for years for magistrates’ sentencing powers to be extended, so we are delighted with the announcement.’

They will come into force ‘in the coming months’, a Ministry of Justice spokesman said.

Legislation will include what the spokesman described as an ‘off switch’, so ministers can revert to a lower maximum sentence in magistrates’ courts.

It may be necessary to bring an end to the measures if the prison population becomes too high, for example.  

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