Ministers will announce plans within days to give magistrates in England and Wales fresh powers to hand down longer custodial sentences to help reduce the backlog in crown courts and prisons, the Guardian understands.
The development will allow magistrates to try more serious crimes, and double the maximum punishments handed out for an offence from six to 12 months.
The proposal could also reduce the number of prisoners awaiting trial in prison, known as “on remand”, Whitehall insiders said. In June, there was a record 17,000 prisoners on remand in England and Wales, a fifth of the prison population.
The government is preparing to release hundreds more prisoners under the SDS40 early-release scheme on Tuesday amid growing concern over the creaking criminal justice system. Shabana Mahmood, the justice secretary, has previously warned that the government inherited a prison system that is on the “point of collapse”.
However, the latest move to give magistrates greater powers has been condemned by barristers, who have called it a “kneejerk policy” that would “simply make things worse” for overcrowded prisons.
Doubling the jail terms that magistrates can impose, from the current maximum of six months, would enable them to try more serious offences, including theft, fraud, assault, drug dealing and possession of weapons.
Giving magistrates further sentencing powers was tried before by the then justice secretary Dominic Raab, who doubled jail sentences in 2022. The scheme was dropped after a year. Critics claimed that magistrates increased the numbers of people serving short sentences, putting more pressure on overcrowded prisons.
Government insiders have said that, this time, the prison population is expected to initially increase. But allowing magistrates to hear more complex cases would mean that, eventually, the number of remand prisoners would decrease, as crown courts would be freed up to hear more cases, a source said.
“Modelling shows that there may be a short-term increase in the prison population. But in the mid- to long term, the overall population will drop because the number of remand prisoners will fall away,” a Whitehall source said.
A record 17,070 prisoners were on remand at the end of June, up from just 9,000 five years ago, official figures show. Some have spent so long on remand that, if convicted, they could be released immediately or within months as the time already served in prison counts towards their sentence.
After a report in the Daily Telegraph last month that ministers were considering giving magistrates extra powers, the chair of the Criminal Bar Association, Mary Prior KC, said any such changes would “make things worse” by increasing the pressure on prisons, which were already near capacity. “This is a kneejerk reaction, done without consulting – once again – the criminal barristers or solicitors who deal every day with these cases,” she said.
Under the SDS40 scheme, an estimated 2,000 prisoners serving sentences of less than five years were released on 10 September. On 22 October, a further 1,700, who are serving sentences of more than five years, will be released.
After last month’s early releases, the government had to defend the scheme after a former inmate, Amari Ward, 31, was charged with sexually assaulting a woman on the day he was freed. Ward was one of 37 prisoners who had been wrongly released because offences had been inaccurately recorded. All 37 had breached restraining orders, which should have disqualified them from the early release scheme.
It then emerged that many released prisoners had not been fitted with electronic devices, despite this being a condition of their release. Serco, the outsourcing company that manages the tagging system, has since been blamed by ministers for failing to fit enough tags.
A spokesperson for the Criminal Bar Association said the decision to extend magistrates’ sentencing powers failed to deal with crown court delays: “Every week, trials due to start over the coming months are being put back up to a year. Worst affected from the cut to allow judges to sit are all our London crown courts and related prisons and all our crown courts in the north-west in and around Manchester. The latest knee-jerk policy decision to double magistrates sentencing powers simply won’t address this issue.”
