In an attempt to free up court time and reduce the backlog of cases in the criminal courts, as from the beginning of May 2022, Magistrates’ sentencing powers have been doubled to allow them to impose prison sentences of up to 12 months where previously the maximum was six months. The Government is citing COVID as the reason for the recent and significant increase in the number of cases yet to be heard, but the widely held belief is that the delays and backlog - which at the end of 2021 stood at just under 60,000 cases in the Crown Court - have been caused by years of funding cuts; exacerbated by COVID.

There are several reasons why the Government’s strategy is unlikely to work, and could in fact make matters worse. Firstly, for many offences, it is open to a Defendant to elect that their trial takes place before a jury in the Crown Court, rather than being heard in the Magistrates’ Court. This can sometimes be an attractive option because, although the sentencing powers are greater in the Crown Court, the common perception is that juries are more lenient and so the chances of acquittal are higher. If by choosing to stay in the Magistrates’ Court there is now a risk you will get a much longer sentence than was previously the case, more people may decide to take their chance in the Crown Court. 

Secondly, if Magistrates start imposing longer prison sentences, the number of appeals against sentence are likely to increase – and these appeals are heard in the Crown Court. Thirdly, much of the backlog has been caused by years of funding cuts which has resulted in an exodus of barristers from the criminal bar. This in turn has reduced the number of barristers available to prosecute and defend criminal cases which has added to the delays, together with limiting the number of potential candidates for the judiciary.

Whilst this increase in sentencing powers may be less relevant to individuals who have been charged with financial crime, such as fraud, because these cases would usually be heard in the Crown Court, it is more relevant to those involved in other types of prosecutions brought by agencies such as the Health and Safety Executive, Environment Agency and Local Authorities. 

Although, in the main, it is the company which is prosecuted in these cases, typically, the prosecutor also has the power to bring criminal proceedings against individual directors and managers where the company committed an offence with the consent, connivance, or due to the neglect, of that person. Where on the conviction of the company the sentence will be a fine; an individual could be sent to prison. All this means that, from the outset, the potential length of a prison sentence imposed in the Magistrates’ Court will be an important factor in deciding on tactics for defending the case.