Investigation of cases sent by magistrates to Crown Court for sentence Research by Anita Bickerdike Managing Director Positive Intention Ltd Edited by Jo Easton Head of Policy and Research Magistrates Association
Executive summary The Minister for State for Policing and Criminal Justice, the Right Honourable Damian Green MP, stated in a speech given in August 2013: Around 40% of defendants that are convicted in magistrates courts and then committed to the Crown Court for custodial sentences receive no more than six months imprisonment. These are cases which magistrates could have sentenced; no, these are cases which magistrates should have sentenced; they already have the skills, capability and powers to do so. 1 Following consultation with the Minister, the Ministry of Justice (MoJ) and Her Majesty s Courts and Tribunals Service (HMCTS), the Magistrates Association (MA) commissioned research to look into why cases were sent to Crown Court for sentence, why they then received sentences within magistrates powers and what could be done to ensure more of the appropriate cases are retained by magistrates. 1 http://www.magistrates-association.org.uk/wp-content/uploads/the-role-of-magistrates.pdf The Magistrates Association 1 January 2015
The research revealed several issues and inconsistencies linked to how statistical data is collected, what it really means and what it can be used to support or demonstrate. It also provided evidence for why cases were sent to Crown Court for sentence and why such cases might then receive custodial sentences within magistrates powers. The number of cases sent by magistrates to Crown Court for sentence represents a small proportion of the total cases dealt with by magistrates. The survey of MA members showed that it was relatively rare for magistrates to send cases to Crown Court. This was confirmed by HMCTS figures for the chosen area of study; where only 2% of all cases dealt with by Manchester and Salford Magistrates Court in 2012 were sent to Crown Court for sentence. Certain inaccuracies relating to the 40% figure were identified. The first inaccuracy identified was that the figure of 40% referenced by the Government was stated to represent over 4,000 cases in 2012. However, HMCTS figures only identify 3,612 such cases an inaccuracy of nearly 10%; suggesting that the real figure would be nearer 36%. The second inaccuracy related to the incorrect designation of cases as within the research parameters. If these errors are replicated across England and Wales, the 40% figure would be further undermined. Manchester Crown Court files for cases which were sent to the Crown Court for sentencing and received custodial sentences that could have been given in the magistrates court in 2012 were analysed. 93 cases were identified as within the scope of the The Magistrates Association 2 January 2015
research parameters 2 : one case file was not available so 92 case files were inspected. Only 79 of the 92 case files were within the scope of the agreed research parameters of cases being sent to Crown Court for sentence, receiving custodial sentences within magistrates powers. If the Manchester Crown Court case files are representative this suggests a discrepancy of 14% between the original 40% figure and the findings. The statistic for cases sent to Crown Court for sentencing which resulted in custodial sentences within magistrates powers could therefore be as low as 31% 3 of all such cases, rather than the 40% quoted. The most common reasons for magistrates sending cases to Crown Court for sentence are to comply with statutory obligations or guidelines. The 79 case files were analysed to assess whether reasons for sentencing could be identified. Each file was checked against seven indicators to produce the data set on page 28. The following statistics were compiled from the data set: In 44% of the cases, the magistrates court would be obliged, or strongly recommended by their legal advisers, to send the case to the Crown Court following the legislation below: Breach of suspended sentence order or commission of offence during the operational period of a suspended sentence order made by the Crown Court: Schedule 12, Criminal Justice Act 2003. 2 2012 cases which were sent to Crown Court for sentence, but which resulted in custodial sentence within magistrates powers. 3 Taking both inaccuracies identified together, 86% of 36% comes to 31%. The Magistrates Association 3 January 2015
Breach of community order or commission of offence during the operational period of a community order made by the Crown Court: Schedule 8, Criminal Justice Act 2003. In 61% of the cases, the magistrates' court were either obliged to send the case as covered by the legislation above, or the Crown Court was already dealing with the defendant for other matters. This would include situations such as: When a case was sent (using magistrates discretionary powers under Section 6 of Powers of Criminal Courts (Sentencing) Act 2000) alongside another, related, more serious case that could only be properly sentenced under Crown Court powers. Again, if the sample from Manchester Crown Court is taken to be representative, and 61% of these cases were sent to the Crown Court for sentencing for procedural reasons, the 40% statistic might be lowered again. Using the 31% figure suggested above, it may be that only 12% (39% of 31%) of cases sent to Crown Court for sentencing could have been retained in magistrates courts, with the remainder being governed by legislation. The Crown Court has access to additional information which is likely to influence a decision to impose a custodial sentence of 6 months or less. In 97% of the cases, additional information was available to the Crown Court at the point of sentencing which had not been available to the magistrates court. In all cases, if there were no procedural reasons for sending a case to the Crown Court, further information was available to the Crown Court when sentencing. 4 4 In all but one case, further information was either through a Pre-Sentence Report or mitigation. The Magistrates Association 4 January 2015
It could therefore be argued that if pre-sentence reports or detailed mitigation were provided to magistrates courts before magistrates decided whether to send cases to the Crown Court for sentence, all the cases within the research parameters may be accounted for. It is appropriate for magistrates courts to send certain cases to Crown Court for sentencing, even where a custodial sentence of 6 months or less is then imposed. It must be acknowledged that, although it is important to retain cases within magistrates courts where appropriate, it will be appropriate for some cases to be sent to Crown Court for sentence. The fact these cases then receive custodial sentences within magistrates powers does not necessarily mean it was inappropriate for them to have been sent to Crown Court for sentence. Cases where the Crown Court was already dealing with the defendant could be seen as cases in point. The Magistrates Association 5 January 2015
Recommendations Magistrates Court Sentencing Guidelines (MCSG) should be reviewed to ensure that all offences which can be dealt with in the magistrates court are retained to be sentenced in magistrates courts. (Paragraph 2.5) Sentencing powers of the magistrates court should be increased to ensure they have adequate powers to deal with appropriate cases. (Paragraph 2.5) Written reasons for sentence in the Crown Court should be recorded on the file in all cases and on a form, if the sentence imposed was within magistrates powers. (Paragraphs 2.5 and 3.2.3.4) Forms completed in the Crown Court should be used to provide feedback to magistrates in specific cases and to broaden the general understanding of sentencing practice. This would enable magistrates to be better informed about the outcome of such cases and the reasons for sentences which may assist future decision making. (Paragraphs 2.5 and 4.3.2.3) Law, guidance and practice relating to offences committed during the operational period of Crown Court suspended sentences and community orders should be reviewed to allow appropriate cases to remain in the magistrates court for sentence. (Paragraphs 2.5 and 3.2.3.4) Training for magistrates and legal advisers should ensure better joint understanding and interpretation of the MCSG and sentencing practice. (Paragraph 2.5) The parameters of the computer program which gathers statistical data should be reviewed and more clearly defined. (Paragraphs 3.1.2 and 3.2.2.2) Information about how statistics are collected and used should be published to increase clarity and transparency regarding the characteristics of the data captured. (Paragraphs 3.1.2 and 3.2.2.2) Statistical data captured via computer programs should be seen in context to assess how much probative value it has and what it does and does not support or demonstrate. (Paragraphs 3.1.2 and 3.2.4.2) Additional information (including Pre-Sentence Reports) should be made available in the magistrates court to assist magistrates in making more informed sentencing decisions (including whether to send to Crown Court for sentence). (Paragraph 3.2.3.4) Magistrates reasons for sending to Crown Court for sentence should be written on the file and supplied to the Crown Court as appropriate. (Paragraph 3.3.4) The Magistrates Association 6 January 2015