POWER OF MAGISTRATES' COURT TO COMMIT OFFENDER TO CROWN COURT FOR SENTENCE FOLLOWING DEFERMENT (Hansard, 12 May 1982)

§ Mr. Kilroy-Silk

I beg to move, That the clause be read a Second time.

850 The clause would enable a magistrates' court that has deferred sentence on an offender to commit him to a Crown Court for sentence at the end of the period of deferment. It embodies a recommendation of the parliamentary all-party penal affairs group in its report "Too Many Prisoners" and has the support of the Justices' Clerks' Society and the Magistrates' Association.

Section 1 of the Powers of Criminal Courts Act 1972 gives a court power to defer passing sentence on an offender for up to six months in order to enable it to have regard to his conduct after conviction, including, where appropriate, his making reparation for his offence and any change in his circumstances, such as his impending marriage to someone who may appear to be a stabilising influence.

The decision to defer sentence contains the clear implication that if, after the period of deferment, the court receives a favourable report on the offender's behaviour in the meantime it will be persuaded to impose a more lenient sentence than it would otherwise have passed. Therefore, a deferment enables a court to give an offender an opportunity to obtain a less severe sentence than it might feel obliged to pass if it had no alternative but to sentence him immediately.

In 1975 in the Gilby case an 18-year-old youth was convicted of burglary. The magistrates deferred sentence, but when the offender came back before the court the probation officer's report commented adversely on his behaviour in the meantime. Not unreasonably, the magistrates then committed him to the Crown court for sentence with a recommendation for borstal training, and a borstal sentence was passed by the Crown court. On appeal, the Court of Appeal held that, once a magistrates' court had deferred sentence, it could not commit an offender to the Crown court for sentence. In 1977 the Criminal Law Act amended section 1 of the Powers of Criminal Courts Act 1973 in order to put this decision into statutory form. This new clause would reverse that decision.

In some cases, the choice between a substantial custodial sentence and the clearly bolder, more imaginative step of a probation order is a narrow, fine balancing line. According to those who pass these sentences, there can be a narrow borderline between the imposition of a heavy custodial sentence and the imposition of a probation order. In such borderline cases the magistrates' court may wish to defer sentence instead of committing the offender to the Crown court with a view to the imposition of a substantial custodial sentence to see whether a custodial sentence could be avoided in the light of some likely change in the offender's circumstances or some promised action on the part of the offender, such as reparation. However, the court cannot ignore the possibility that the offender may not live up to his promises, in which case it might consider that a substantial custodial sentence was justified.

The result of the Gilby case is that in such circumstances the court cannot defer sentence without at the same time losing the option of committing the offender to the Crown court at the end of the period of deferment. Indeed, the Justices' Clerks' Society pointed out in its policy statement "Sentencing in the 1980s": The effect of the present law is to discourage magistrates from deferring sentence in situations when it might have been 851 most desirable to do so and to encourage magistrates to commit in custody for sentence forthwith when they might otherwise have wished to take a more lenient course. It is of course, possible that the Crown court would decide to defer sentence, but, even if it did, it has now been held that committals to the Crown court should normally be in custody and that period in custody may effectively kill the chances of a successful deferment because it increases chances of the offender losing his job and therefore of losing whatever hopeful future development may have induced the magistrates to consider deferring sentence.

The only solution for all of those difficulties is to reverse the effects of the Gilby judgment, as this new clause would do. It would allow magistrates to commit an offender to the Crown court following a deferment. That would encourage magistrates to offer a chance of redemption more frequently to offenders on the brink of what might be a substantial custodial sentence.

When this subject was debated in Committee on 25 March 1982, the Minister said that the arguments for and against retaining the present position were "finely balanced". He went on to say: we should like to give further thought to the matter, and consult again upon it."—[Official Report, Standing Committee A, 25 March 1982; c. 782.] I hope that the Minister has now had the opportunity to make those consultations. I assume that he has spoken to both the Justices' Clerks' Society and the Magistrates' Association, both of which, as I have said, are in favour of reversing the Gilby judgment. I hope that the Minister will feel able to accept the new clause.

§ Mr. Mayhew

We are persuaded that the balance of advantage lies in giving the magistrates' courts power to commit for sentence to the Crown court after a period of deferment. The opinion of the Lord Chief Justice should clearly carry a lot of weight in this matter. We have consulted him and he has expressed the view that the magistrates should have this power.

The Government therefore accept the principle behind the new clause, but we should like to give further and more detailed consideration to how this decision in principle should be reflected in the statute. Therefore, I am not able to accept the new clause as it stands or to advise the House to do so. I can give a definite undertaking that the Government will table, at a later stage, an amendment that will give effect to the decision to give magistrates' courts the power to commit for sentence after a period of deferment.