You may not remember, there’s no reason why you should, but in 2003 the Labour Government introduced the Criminal Justice Act, which sought to make a number of significant changes to the criminal justice system.  In amongst the seemingly endless tracts of legislation was the proposal that magistrates should be able to pass sentences of imprisonment up to a maximum of 12 months from the present maximum of 6 months, effectively doubling their sentencing powers.

This provision was never brought into force.  There were a number of reasons for this.  One, which carried little weight, was that this would reduce to a trickle all those petty cases where the accused has the right to elect trial by jury, such as the theft of a postage stamp, and where the young Bar could cut their teeth so to speak on advocacy and hold high the sword of justice.  This reason became increasingly meaningless after 2006, as solicitors applied in their droves to acquire higher rights of audience, and before you could say ‘wig and gown’, they were going shoulder to shoulder with barristers and persuading their clients they knew what they were doing.

The other reason bruited abroad was that magistrates have itchy trigger fingers, and tended to pass sentences of imprisonment more often than their senior colleagues in the crown court.  If they were given increased sentencing powers, or so the argument goes, they’d use them when a custodial sentence was not the most appropriate.

And finally, there is the argument that with overcrowding in prisons now reaching crisis point, trigger happy magistrates would place an intolerable burden on the penal system to the point of melt down.  But short sentences, at least compared with some of the absurd sentences being passed in the crown court, means that the miscreant is out before he has had time to settle into a life of crime behind bars, with violence, and drug abuse, and sexual exploitation, and radicalisation, and the occasional rooftop riot everyday events.  And with credit for an early plea of guilty, and time off for good behaviour, hardly time for the miscreant to unpack his bag before he’s released back into the community.  As you know, I am in favour of the ‘short sharp shock’ approach to sentencing.  It works, and what’s more, it doesn’t bed block.

Magistrates have progressed considerably since the old days when, after summary trial,  the chairman of the Bench would say: “We find there is a reasonable doubt, but we don’t see why you should have it.  Case proved.”

The rise of the District Judge as a permanent fixture in Magistrates Courts has also been generally welcomed.  Unlike their lay counterparts, District Judges are legally qualified and experienced.  They also sit alone, so less chance of  dissent on the Bench.  All in all, and according to feedback, the system is working well enough.

Is it time for a rethink?  Whilst this government is incapable of any think, let alone rethink, until after the 23rd June, at some stage thereafter, a decision will have to be made, and the Magistrates Association has recently raised the issue for mature debate and early resolution.

I suspect they’ll get neither, but I live in hope.

David Osborne is the author of three humorous books on the Law.  His latest, entitled Order in Court, is now available in all reputable bookstores and on Amazon.



As candidates for the top job in 2020 jostle for pole position, those who fancy a flutter would be unwise to write off Michael Gove.  He is known as ‘Oiky’ by Private Eye, but that aside, he is very much the dark horse in the race and should not be dismissed lightly.

He had a good run at the Department of Education until Cameron, ever the fair weather friend, dumped him in favour of somebody more emollient, I can’t remember who, but presumably transgender and black to cover as many bases as possible.

After the General Election, Oiky came back as the Justice Secretary, something about which he knew absolutely nothing, and an ignorance he shares with a number of judges, but he’s taken to it like a duck to water.  His latest initiative to reduce the prison population is to cut substantially the terms of imprisonment which prisoners would otherwise have to serve, thus tackling prison overcrowding at a stroke.  Whether his initiative gets past Middle England and sees the light of day, only time will tell, but he has my support.

Those of you old enough to know better will cast your minds back to 1965 when capital punishment was finally abolished, much to the disgust of the ‘Hang ’em High’ Brigade.  I mean, if you hang ’em high, they won’t do it again, and what does it matter if the occasional innocent man is hanged if it’s all for the greater good.  But with the abolition of capital punishment, imprisonment became the ultimate deterrent and the ultimate punishment, but was never used as such.  Deterrence never works, as it assumes that those contemplating committing a crime consider the consequences, which they don’t. That leaves punishment.  It is depressing but true that sentences of imprisonment are increasing significantly in both length and severity because successive Home Secretaries see this as a vote winner.  How depressing to play politics with people’s lives!  It’s a fact, acknowledged by Gove, that the real punishment of imprisonment is in the first two weeks, the so-called ‘clang of the prison gate’, when a condemned man’s humanity is stripped bare, when he is prodded and pushed and abused by the system which is at breaking point.  That’s the real deterrent, and any sentence beyond the short, sharp shock is an expensive waste of time.

Finally, the use of imprisonment as a sentencing tool also needs to be examined.  Three quarters of all serving prisoners are serving a sentence of two years or less, so why are they there in the first place?  Surely it is not beyond the wit of man to devise a more appropriate punishment within the community.