Lawyers have advised that giving magistrates additional sentencing powers could increase court backlogs because more defendants may choose to take their chances in front of a crown jury.

Yesterday, Justice Secretary Dominic Raab said that magistrates will be allowed to hold offenders up to twelve months in jail. This doubles the maximum currently.

He said the move will free up around 2,000 days of Crown Court time a year, as fewer cases will have to be referred to a judge for sentencing.

Lawyers today stated that the proposal could see defendants. They may be given a longer sentence by a magistrate or choose to go before a jury. Or, they might plead guilty at a crown court, where it is less likely that they will end up in prison.

Kirsty Brumlow QC, an international and national criminal attorney and human rights advocate said defendants could ‘take chances’ and be taken to court by the crown rather than facing a prolonged sentence from a magistrate.

Max Hardy, Barrister said that the proposal would “cost the taxpayer much money” because crown court trials can be ‘dramatically more costly’ than magistrates court trials. Additionally, an increase in short-term prison sentences would have a negative impact on the public purse.

The announcement by Mr Raab comes after the Colston Four — who tossed a statue of Edward Colston in Bristol Harbour in 2020 — chose to face trial in front of juries, and were found not guilty for criminal damage.

Three Extinction Rebellion activists were found not guilty of obstructing the railway last week after choosing a crown court trial which prompted fears over whether other cases are also likely to result in protesters being freed.

Figures show more than 60,000 Crown Court cases are outstanding in England and Wales, plus more than 300,000 in magistrates’ courts. 

International and national human rights and criminal lawyer Kirsty Brimelow QC said defendants may 'take their chances' and go up to crown court, rather than risk a lengthened imprisonment from a magistrate after Justice Secretary, Dominic Raab, announced measures to increase sentencing powers for magistrates

Kirsty Brumlow, an international and national criminal attorney and lawyer Kirsty Brimelow (QC), suggested that defendants could ‘take chances’ and be taken to crown court instead of being sentenced to longer imprisonment by a magistrate. This was after Dominic Raab, the Justice Secretary, introduced measures to improve sentencing power for magistrates

The Colston Four - who threw a statue of slave trader Edward Colston into Bristol Harbour in 2020 - opted to stand trial in front of a jury, where they were eventually found not guilty of criminal damage

They were found guilty of criminal damage by a jury.

Times Radio interviewer Kirsty Brmelow QC said that she does not believe the addition of sentencing powers will make any difference to the court’s backlog.

She explained that the sentencing powers of defendants make it more attractive for them to continue in magistrates court. Increased sentencing powers will make it less attractive to continue there.

She stated that data showed magistrates were more likely to lock up than the crown court. 

She stated that this might increase the backlog of magistrates’ defendants thinking, “I’m no longer going to stay here. I’m likely to be sentenced…

“And also, the sentencing power increased upon the time it took me to reach here. Therefore, I’m going to take it upon myself and make my way up to the crown court. 

Justice Secretary Dominic Raab said: ‘Along with the Nightingale courts, digital hearings and unlimited sitting days, we will deliver swifter and more effective justice.’

Justice Secretary Dominic Raab said: ‘Along with the Nightingale courts, digital hearings and unlimited sitting days, we will deliver swifter and more effective justice.’

According to the lawyer, someone convicted of a crime and sentenced can appeal under sentencing powers. This would allow magistrates to be removed from the courtroom and the crown court could hear the appeal.

She said that it didn’t matter how you see it, but “it’s difficult to grasp the Ministry of Justice logic” which is supposed to be helping with the backlog.

Holly Oliveira, Barrister, stated that the increase in power of magistrates will result in more people choosing to go to Crown Court, more appeals and more injustice.

Hardy believes that increasing sentences by six to twelve month will have “a negligible impact on the Crown Court Backlog, but could have a significant effect on short term prisoners’.

There are three types of criminal offences: Summary, which is only heard by a magistrate’s court with a maximum sentence period of six months. Or, either-way, in which a magistrate, or jury, and the defendants can elect to have it tried by them. Indictable offenses, however, are heard only in a Crown court by a jury.

MailOnline spoke to Mr Hardy. He said that each case is unique in terms of the factors that influence a defendant’s choice to have his trial decided by the magistrates and/or by the jury.

“But they typically include the following: trials are faster in the Magistrates, if the defendant pays privately or is concerned about his/her costs, then trial in the Magistes is quicker, and the defendant may hope that, upon conviction, the magistrates will not sentence him.

“My main concern is not that the new measure will reduce the Crown Court backlog, but rather could cause a proliferation of very short sentences in prison.

“Beyond “clanging at the prison gate” or “short, sharp shock”, where some people believe they can’t return to prison. This may discourage others from crime but could also lead to a continuous churn and little chance of rehabilitation.

“This could cause taxpayers considerable financial hardship without any demonstrable improvements to the criminal justice system.”

According to Mr Hardy, it is possible for criminal offenses to be reexamined under new laws to determine if they are an ‘either-way’ or a summary offence. This would allow the crown court backlog to be reduced by hearing the case before a magistrate. 

MailOnline reached out the Ministry of Justice to request comment. 

The Colston Four – Rhian Graham, 30, Milo Ponsford, 26, Sage Willoughby, 22, and Jake Skuse, 33 – were prosecuted for pulling an Edward Colston statue down during a Black Lives Matter protest on June 7, 2020, in Bristol while a huge crowd was present.

Although the prosecution claimed that Colston wasn’t relevant to the matter and that the case involved simple criminal damage, the jury of the Crown Court in the city acquitted the defendants earlier in the month.

This verdict caused a lot of debate over the criminal justice system. Although the “Colston Four” chose to face trial before a jury, they did not admit to involvement in the incident. Instead, they claimed the statue’s presence was a hate crime that was therefore it wasn’t an offense to take it down.

Although the acquittal can not be reversed and defendants cannot be retried with fresh evidence, Section 36 of Criminal Justice Act 1972 permits the Attorney General to request clarification from a higher court after receiving a submission by the Crown Prosecution Service.

This isn’t a way to alter the outcome in any individual case.

Then last week MPs blasted an ‘outrageous’ decision by a jury to unanimously clear three Extinction Rebellion activists of obstructing the railway – after a judge cited their right to protest under the European Convention of Human Rights.

While the group claimed they were motivated by Christian faith and fear for their grandchildren, politicians reacted angrily and said that the verdict was a dangerous precedent which gave people the freedom to do criminal acts.

(From left) Martin Newell, Sue Parfitt and Philip Kingston stand together on October 18, 2019

From left, Martin Newell (from left), Sue Parfitt (from right) and Philip Kingston are together October 18, 2019.

Anglican priest Reverend Sue Parfitt and Father Martin Newell (54), were all former university lecturers who reached the Docklands Light Railway’s top during London’s morning rush hour.

XR claimed that this was the third of a string of trials involving activists in which they were brought before a jury.

Concerns were raised about whether police will stop arresting demonstrators or if the Crown Prosecution Service will stop charging them for crimes. There is also a general expectation they will be released. All those that end up in court will want a jury trial as they stand a better chance of getting out.

Kingston, Parfitt, and Newell were accused of obstructing an locomotive or carriage on the railway. However, a jury at Inner London Crown Court cleared them.

They could have been sentenced to up to six months imprisonment if the DLR protesters were found guilty in a magistrates court pursuant section 36 of 1861’s Malicious Damage Act.

If they were found guilty at a Crown Court, this would increase to 2 years in prison. They would each have faced an unlimited penalty at any court.

Crown Courts currently have a backlog of 60,000 cases in England and Wales while magistrates' courts have 300,000 cases pending. Pictured: Brighton Magistrates' Court

Crown Courts have an backlog of approximately 60,000 cases in England & Wales, and magistrates have 300,000. Photo: Brighton Magistrates Court

Powers to increase magistrates’ maximum sentencing powers were first passed into law in 2003 – but have never been brought into force.

The changes are limited to ‘triable-either-way’ offences meaning that defendants can still opt to have their case heard by a jury.

Bev Higgs, chairman of the Magistrates’ Association, said: ‘We have been campaigning for years for magistrates’ sentencing powers to be extended, so we are delighted with the announcement.’

They will come into force ‘in the coming months’, a Ministry of Justice spokesman said.

Legislation will include what the spokesman described as an ‘off switch’, so ministers can revert to a lower maximum sentence in magistrates’ courts.

If the prison population is too large, it may be necessary for the measures to end.