Dominic Raab’s ‘Operation Red Meat’ Justice Plans Will Backfire

Dominic Raab’s ‘Operation Red Meat’ Justice Plans Will Backfire

Increasing the powers of magistrates will only put more pressure on the already strained crown court, says Gareth Roberts

As part of its ‘Operation Red Meat’ plan to deflect attention away from the Prime Minister’s problems, the Government has this week announced plans to increase the sentencing powers of magistrates courts from six months to one year. 

This increase, brought in by the Justice Secretary Dominic Raab, will release the pressure on the crown courts and reduce the backlog of trials, which currently stands at 60,000.

At present, magistrates courts’ sentencing powers are limited to six months which means that, if they conclude that an offence is so serious that a term of imprisonment greater than six months may be warranted, then they have to send the case on to the crown court to be dealt with by a crown court judge and potentially a jury.

The Government hopes that by doubling this cut -ff from six to 12 months, magistrates courts will keep more cases for themselves, thus reducing the burden on the higher courts. 

Unfortunately, this policy displays a lack of understanding of the criminal justice system. 

At the beginning of the process, a criminal case will be brought before a magistrates court for a hearing to determine which court will ultimately dispose of it. ‘Summary only’ cases (such as minor violence or public order matters) will stay in the magistrates court; ‘indictable only’ cases (usually sexual offences, more serious violence, drug supply and offences of dishonesty involving violence or high value goods) will be sent immediately to the crown court; whereas ‘either-way’ offences (offences grave enough for the crown court to consider but not so grave that this would be automatic, such as assault occasioning actual bodily harm), can find their way to either the crown court or remain in the magistrates. 

The Government’s announcement intends for more either-way offences to stay in the magistrates court, as it is hoped that with their increased powers of sentence, magistrates will not deem it necessary to send such cases up to the crown court.

However, the decision does not just lie with magistrates – a defendant charged with an either-way offence can elect to face a crown court trial if they wish. 

Most solicitors believe, rightly, that their clients have a greater chance of acquittal in the crown court before a jury, than in the magistrates court, where magistrates may be more inclined to convict. 

At present, with a sentencing maximum of six months, most solicitors are content to advise their clients to keep an either-way offence in the magistrates court as there will be a good chance that they will receive, at worst, a short period of imprisonment should they lose their trial or plead guilty. 

That decision would become less straightforward if the magistrates court had powers to imprison for twice as long. Under the change, a defendant charged with a minor offence of violence – perhaps with a potential to run a self-defence or mistaken identification argument – may decide that, given the possibility of a longer sentence, they would rather elect for trial in the crown court, as is their right, than face a sentence of up to a year.   

If this happens, and it will, then Raab’s policy designed to reduce the burden on crown courts, could actually have the opposite effect. And that is not the only flaw in Raab’s plan.

The first point of appeal from the magistrates court is to the crown court. Crown courts are already jam-packed with those who seek to appeal either their sentence or conviction by magistrates or district judges. By increasing the sentencing powers of the lower courts, it is inevitable that the number of appeals by those who believe that the sentence was excessive or that the conviction was unsafe will increase.

This will take up even more valuable time in the crown court and prevent judges and magistrates from their usual work – thus potentially increasing the backlog in both types of court. 

The other side-effect of the proposal would be the increase in the pressure on prisons. Prisons are already heaving, having seen a massive increase in their numbers in the past decade, and further expansion in numbers would risk taking them close to breaking-point. 

It is right that the backlog in undetermined and ongoing criminal cases needs to be addressed – the crown court now has a backlog of over 60,000 cases, while the magistrates courts have a whopping 395,000 cases still to be heard. 

For years, pressure groups such as the Criminal Bar Association, have argued that the only way to properly address this is to increase funding for the criminal justice system and expand legal aid rates to ensure that advocates are able to appear in cases and that there are enough courts, judges and staff to process them properly. 

Dominic Raab’s announcement may deflect from the travails of his boss, but it will do nothing to reduce the burden on the criminal justice system.   

Gareth Roberts is a barrister