Wednesday, November 07, 2012
Upstairs or Downstairs
The forthcoming abolition of committal proceedings reminds me that benches continue to be, in our view, too timid in accepting jurisdiction. Only yesterday we committed a case to the Crown Court that is highly unlikely to attract more than our maximum of six months' imprisonment, and will probably end up as a suspended sentence order. Nevertheless our colleagues had declined jurisdiction. When we sit at the Crown Court on appeals judges often ask why we send up low-level stuff; I don't have the figures to hand but a good proportion of cases sent to Hizonner end up being sentenced well within JPs' powers. We lost an argument last year and declined a case that finished up attracting a six-week sentence. The defendant was released immediately because he had served longer in custody waiting to get to the Crown Court than the eventual sentence. That is unfair as well as costly.
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I wonder whether this is - to some extent although no excuse - partly the fault of the sentencing guidelines. At MOT (assuming a NG or no indication at PBV) we look at the guideline...it says Cr Ct at the top end of the range. We take the prosecution case at it's highest as we must at this stage of the process...up it goes. In reality, the facts dictate a sentence within our guidelines when the matter comes to trial...
ReplyDeleteJust a thought...(yes, I know they're guidlines not tramlines!!!!)
Yes, there is a lck of confidence and a fear of critisism. I would say there is a large chunk of work that gets sent up to the CC on the only pretext that whatever the sentence might be, if that were breached then the CC can impose something extremely nasty, whilst the Mag's cannot. This problem means that there is a huge waste of money. It would be far better to keep things down- I don't mean genuine trials, which should still go- but rather the guilty pleas that will not attract anything more than 12 months in the CC. If the cases were kept things could be changed so that the real threat if any non-custodial was given would be breach might well lead to the CC and something unpleasant. The only difference usally is the numbers in the sentence , not the facts or the arguments.
ReplyDeleteA quick look at some statistics would seem to lend some support to your hypothesis that magistrates often decline jurisdiction in cases that are eventually sentenced within the magistrates' powers.
ReplyDeleteTaking sentencing figures from open.justice.gov.uk for 2011 for the ten crown courts in London (Blackfriars, Central Criminal Court, Croydon, Harrow, Inner London, Isleworth, Kingston, Snaresbrook, Southwark and Wood Green), you can see what sentences were handed out at the crown court for shoplifting. Of course not all crown court sentences for shoplifting will be the result of magistrates declining jurisdiction (some defendants may have elected trial at crown court, for example), but assume that most are.
Between them, these courts sentenced 408 people for shoplifting. Of those, 5% were fined, 22% given a community penalty and 17% a suspended sentence. Just under half of defendants were given an immediate custodial sentence. Of those, 83% were sentenced to six months or fewer.
Overall, 8% of defendants sentenced in crown court in London for shoplifting were given an immediate custodial sentence of more than six months, i.e. a greater sentence than magistrates could have imposed.
I make no comment on the potential reasons for this. The delay to justice in these cases and the additional expense may be inevitable due to other requirements of the system, but it seems that there is delay and extra cost.
I wonder if experience in London is different from elsewhere. I have sat for over 15 years on 2 benches, I can not remember ever sending a case to crown court for sentence after a guilty plea or a trial, though I can't be absolutely sure. In addition the vast majority of 'minor' each way cases which did find their way to Crown were due to election by the defendant. Of course we did refuse jurisdiction in the more serious cases using the guidelines and legal advice as appropriate.
ReplyDeleteMy experience can not be that untypical or do courts vary that much?
No, your experience is not atypical - after nearly ten years, I recently sent my first ever case for sentencing after a guilty plea (it was an ABH with some nasty injuries). The most common reason I've had for declining jusisdiction has been severity of injuries sustained.
DeleteAlso similar to your experience, the vast majority of *our* 'minor' either-way cases which go to Crown Court do so because the defendant elects trial by jury.
Perhaps it *is* London which is different from the rest of the country!
Does the guilty plea carry forward to the CC, or can the def change it in the face of a much longer potential sentence?
DeleteCan try, but I doubt would be successful
DeleteI can't remember our ever refusing jurisdiction on a "simple" shoplifting matter. Virtually all Crown Court appearances will have been the result of election. I wonder, incidentally, how many such cases are discontinued before trial, with the resulting cost saving?
ReplyDeleteyou'd have to be mentally ill to "elect" to stay downstairs, given the choice.
ReplyDeletewouldn't trust a lay bencher as far as i could throw them.
I have probably mis-remembered but I thought the Sentencing Council had said that mags.were no longer to take the prosecution case at its highest in order to lessen the number sent to CC- a favourite bee in the bonnet of J Straw when Justice Minister.
ReplyDeleteWell the Allocation Guideline says this:
ReplyDelete"The Court should assess the likely sentence in the light of the facts alleged by the prosecution taking into account all aspects of the case, including those advanced by the defence."
Which being interpreted means?
Pot Luck or put another way a decisive application of common sense in line with the prevailing sentencing policy
DeleteThere seems to be some disagreement with my assumption that most (or at least a decent chunk of) shoplifters sentenced at Crown Court would be the result of decisions by magistrates rather than by subjects. This assumption was based on intuition and I'm not surprised that it was wrong. I chose shoplifting because it's a common crime that almost never attracts a sentence above that which magistrates can impose.
ReplyDeleteThe original post doesn't mention a particular crime type that magistrates are declining jurisdiction on 'unnecessarily'. Does this happen for particular offence types more often than others?
The issue of geographical variation in sentencing is (I think) fascinating, but probably best left for another day.
I would imagine most of those sent to CC involve violence of one kind or another.
ReplyDeleteThe only one I have sent up for sentencing was a(rather well-known) retailer. The fine issued at the CC rather validated our decision.
Under the new Allocation Decision guidelines for either-way offences which came into effect on Monday (5th Nov), magistrates must indeed hear representations from both CPS and defence before deciding whether to keep it or to send it up, so the bench no longer takes the prosecution case at its highest. The defence is also entitled to ask the likely sentence before deciding whether to go for summary trial or Crown Court trial, and once the bench has indicated it, the sentencing bench can go no higher despite anything the trial, criminal record or PSR might later reveal. So, as always, don't tie the hands of the next bench.
ReplyDeleteI have come to the conclusion that if you decide that there is no alternative to custody and it should not be suspended, you should not commit (as long as 6/12 months is appropriate).In many cases CCs suspend custodial sentences apparently with minimal requirements and one wonders about the impact of that on the victim.
ReplyDelete