Friday, 6 May 2022

Magistrates' Courts - increase in sentencing powers

Almost 19 years ago, Parliament enacted Criminal Justice Act 2003 - (as enacted). 

Section 154 began - "A magistrates' court does not have power to impose imprisonment for more than 12 months in respect of any one offence." This was noteworthy because it would have increased the maximum (for either way offences) from 6 months to 12 months BUT section 154 required a commencement order to bring it into force and such an order was never made.

Section 154 was repealed by the Sentencing Act 2020 but section 224 retained the 6 month limit.

The Judicial Review and Courts Act 2022

section 13 empowered the Secretary of State for Justice to increase the maximum power to 12 months for a single EITHER WAY offence but the Act also empowers the Minister to reset the maximum to 6 months. 

From 1 May 2022, the power has been used to increase the maximum to 12 months - see the government's announcement - Magistrates to help tackle backlog as sentencing powers doubled - GOV.UK (

Either Way offences are those that are triable either in the Crown Court or in the Magistrates' Court. There are many such offences. The decision as to which court will actually try a case is decided at an early stage of proceedings known as "Allocation" and the defendant has a right to opt for jury trial in the Crown Court. 


It remains to be seen how the increase in magistrates' powers will affect allocation decisions. 

It also remains to be seen whether there will be an increase in appeals against sentences imposed by magistrates. Such appeals are to the Crown Court.


The increase is controversial given that there is concern that the number sentenced to imprisonment will increase considerably. See, for example, the view published  in 2016 by the Howard League - The Howard League | Magistrates, sentencing and race

Whether such views are correct remains to be seen but, for my part, I do not see why there should be a marked increase PROVIDED that Sentencing Council guidance is adhered to. 

Courts have a general duty to follow any sentencing guidelines applicable to the offender's case unless the court is satisfied that it would be contrary to the interests of justice to do so - Sentencing Act 2020 section 59

Further the court has a statutory duty to state its reasons for any sentence imposed - see Sentencing Act 2022 section 52(6).

It is particularly noteworthy that the senior judiciary supports the increase to 12 months and that it is also supported by the House of Commons Justice Committee.

Nonetheless, it appears sensible that there is a power to revert to 6 months. The power could, for instance, be used if for some reason there was a marked increase in the use of imprisonment by the Magistrates' Courts. 

It is to be hoped that the Ministry of Justice will monitor the situation closely since the prison population on 29 April stood at 79,729 against an operational useable capacity of 82,326. Interestingly, the number of serving prisoners always appears to be close to the prison capacity. Space does not enable the reasons for that to be explored in this post. A further question is whether imprisonment ought to be available as extensively as it is.

6 May 2022


  1. do not see why there should be a marked increase PROVIDED that Sentencing Council guidance is adhered to.

    mutter mumble maj court district judge mutter mumble throw away the key those guys mumble...

    1. What you say may prove to be correct. Time will tell. This is obviously why the government decided to implement this by Regulations with a power to reverse it.