What crimes should be dealt with in our criminal courts?
If you observe an average magistrates’ court you can be struck by the seeming triviality of many of the crimes prosecuted. One of the observers of the magistrates’ court for our CourtWatch London project was frustrated by a case of “someone who committed criminal damage in 2020 being arrested, detained in police custody and brought to court for non-payment of the fine”.
For the least serious crimes where the defendant pleads or is found guilty the hands of the judges are pretty tied. They have to sentence the defendant, but have few options. Most defendants are asked to pay a fine, a sentence which is purely punitive. Someone who is rich can easily pay a fine. Someone poor will struggle or may even commit more crime to pay it.
If the judge or magistrates think the crime is very trivial or are sympathetic to the circumstances or the vulnerability of the defendant, they’ll hand down an absolute or conditional discharge, a kind of non-sentence which doesn’t involve the defendant doing anything. 28,644 such discharges were meted out in the year ending June 2024.
Dealing with these low-level cases takes considerable court and legal resources. The magistrates court has a backlog just like the Crown Court. In September 2024 there were 327,228 open cases at the magistrates’ courts. Delays are not quite as bad as in the Crown Court, but it still takes 184 days from offence to completion at the magistrates’ court.
In our response to the Sentencing Review, we suggested that there should be a presumption against prosecution for any defendant where the outcome of their case is likely to be a fine or conditional or absolute discharge. The police could deal with all such crimes formally or informally out of court. They have access to a much broader range of options than the courts do for the same kind of offences. Police officers can ask the person who committed the crime to pay compensation for say for a broken window or send them on a short rehabilitative course or ask them to meet the victim and explain their actions. And of course, apologise.
Even if the suspect doesn’t fully accept responsibility for the crime there are constructive things the police can do out of court. Many police forces offer deferred prosecution – a deal whereby if the suspect does a course or agrees to be supervised for a set time period, the police will not pursue prosecution.
It’s a win win if more cases can be diverted from court. Crime should go down because the reoffending rate for those subject to cautions is lower than for any court disposal. And capacity would be created in the magistrates’ court to deal with more serious cases better.
Our response to the sentencing review recommends a transfer of cases currently dealt with in the Crown Court to the magistrates’ court. This is controversial since, if implemented, fewer defendants would have access to jury trials. But we also advocate a reduction in sentences for these offences.
Currently many defendants opt for their “either-way” (medium seriousness) offence to be dealt with the in Crown Court rather than the magistrates’. Many of these offences have a maximum prison sentence of two years imprisonment. If a swath of offences such as assault emergency worker and drug possession had their maximum sentence reduced, we could reduce both the prison population and the Crown Court backlog.
Transform Justice is at one with voluntary sector colleagues in recommending that short custodial sentences should be abolished or at least hardly used. We want community sentences to be used instead – they do less harm and lead to less reoffending. However, we point out in our submission that short sentences cannot be phased out without also dealing with short remands.
When people are remanded in the magistrates’ court, they often spend a few weeks in prison awaiting their trial in the same court. If they are convicted, the magistrates or judge often “convert” the period on remand into a short prison sentence which is “deemed served”, and the person is released from custody as soon as the sentence is handed down. So if someone is, for instance, remanded for an alleged shoplifting offence they might spend four weeks on remand in prison waiting for their trial. Then, if convicted, they may get an eight week prison sentence handed down to them which they have, in effect, already served. We don’t know what proportion of short sentences are the “result” of remand, but will try to find out.
The sentencing review offers a great opportunity for positive change. But as we’ve pointed out, the real challenge is not the formulation of sentencing reforms but the communication of them. We and the government need to persuade the media and the public that reducing sentences will also reduce crime.
This article is part of our ‘Ideas for sentencing reform’ series, discussing sentencing reforms against the background of the Independent Sentencing Review under the former Lord Chancellor, Rt Hon David Gauke.
If you would like to suggest an article for this series, get in touch.
