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Tougher criminal sentences contributing to the courts backlog – new bar chair

By Sam Tobin >>

(23 December 2021)

Increasing criminal sentences to ‘appear tough on crime’ has contributed to the Crown court backlog and taken ‘hundreds of millions of pounds’ out of the Ministry of Justice’s budget, the incoming chair of the bar has said.

Mark Fenhalls QC, who takes up the post in the new year, told the Gazette that ‘governments of all political persuasions who want to appear tough on crime think an answer is to increase sentences for the few cases that are prosecuted’. 

‘It is easy for people to say the answer to this is longer sentences,’ Fenhalls said. ‘It is not. The answer to all of this is better detection, investigation and prosecution of crime.’ He was, however, at pains to emphasise that ‘this is a non-political point because this has been going on for 20 years or more’.

Referring to the decision to double the maximum sentence for assault on an emergency worker from six to 12 months’ imprisonment, Fenhalls said: ‘If you were to ask, I suspect, every resident judge at a Crown court centre in England and Wales, “what effect has the decision to make assault on an emergency worker an electable either-way offence had on your lists?”, it will have been to vastly increase the number of trials they have to deal with.

‘The government may have been right – I’m not making a judgment – to make that an offence that could go to the Crown court. But the blunt reality is that, if it had stayed as a common assault with aggravating features that could have resulted in a longer sentence, thousands of cases which would have stayed in the magistrates’ court and resulted in prison terms would not have put pressure on the Crown court backlog.’

He added: ‘All of these things are political decisions, you make political decisions to criminalise certain behaviour or to increase sentences and all of a sudden the budget is going to go up.’

Fenhalls also said last year’s change in the law, requiring offenders to serve two-thirds, rather than half, of a sentence of more than seven years for certain offences ‘will result in a huge increase in the prison population’.

‘Maybe it was the right political thing to do,’ he said. ‘It no doubt suited the government at the time, when the last lord chancellor made that decision. But that will cost, I suspect, hundreds of millions of pounds in strain on the MoJ budget. And if it is the right political decision, that’s fine. But let’s tell the public the consequences.’

Fenhalls said the public thought longer sentences are ‘a great idea when they’re just told it’s just about those sentences’, but suggested they had not been told ‘the true consequences’.

He also called on the government to show the legal professions that it is ‘serious about a long-term programme of reinvestment and is not just patching holes and sticking duct tape on cracks’. There are no ‘quick fixes’ or ‘silver bullets’ to improve the rates of prosecution of, for example, serious sexual offences, Fenhalls said.

He also referred to a recent report by the Bar Council’s Race Working Group, which he said ‘ends the debate – it shows that this is not mere anecdote and it shows there is a real problem for society’.

‘If I could get to the end of [2022] and every well-meaning, white, liberal bloke like me sees diversity and inclusion as their issue … then we might have made a bit of progress,’ Fenhalls said.

(Courtsey: The Law Society Gazette)