Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 - Motion to Regret

Part of the debate – in the House of Lords at 8:15 pm on 16 May 2023.

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Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 8:15, 16 May 2023

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.

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.