The final two pieces in this series look at how criminals can be managed in Wales after independence. While the best way to deal with crime is to prevent it from happening in the first place, that’s not going to stop everyone. This piece will look at criminal rehabilitation and non-custodial sentencing options like fines, community sentencing and probation.
The Current Picture
Summary offences (also known as misdemeanours) are lower-level criminal offences usually tried in the magistrates’ court. If we decided to ditch magistrates courts after independence, then the cases could be heard in district courts (Part XII).
They almost always result in a caution or non-custodial sentence – for example, fines, compensation, court orders or things like points on driving licenses. The goal of summary offences is to give the offender a short, sharp rebuke to “think about what you’ve done”. As such, apart from repeat offenders, it’s not an area focused on too much concerning rehabilitation.
In 2019 (selected to give a normal pre-pandemic picture), there were 104,400 cases brought before or to magistrates’ courts in Wales6.
Of these, just under 44,000 were summary motoring offences (i.e. speeding, driving without insurance, drink and drug driving) and 33,000 were summary non-motoring offences (i.e. shoplifting, common assault). 5,200 were “breach offences” (i.e. failing to comply with a court order or bail conditions).
Some of these cases may not have made it to the courtroom itself – i.e. paying a speeding fine or being dealt with under the single justice procedure (where only one magistrate decides the case in private).
The rest were made up of cases that were immediately passed up to a higher court (indictable-only, because they were serious enough to warrant a jury trial) or were deemed to be trialable either way.
The Options & Independence
The Thomas Commission made no recommendations around summary offences as such. There are areas where the Senedd could seek to make reforms.
Income-based fines – This has already happened to an extent, with magistrates/district judges able to take a person’s financial means into account before issuing a fine. Taking this a step further would be to introduce so-called “day fines” as used in Germany, Switzerland, Denmark and Finland. Fines would be based on a person’s daily income to ensure they have the same financial impact regardless of means. Potentially, it means wealthier people being fined thousands or even tens of thousands of pounds for offences that currently result in fines of maybe £200-300.
Flexible driving licence points – At the moment, driving licence penalty points are usually applied in blocks of three. There could be scope to vary the number of points based on factors such as the driving conditions, the relative danger to other road users and the experience of the driver. For example, going 85mph on a motorway at night in summer may come with a 1 or 2 point penalty, but going 35mph in a 20mph zone might come with 4 points, or 5 if outside a school.
New summary offences – While the Senedd does have the power to create new offences in devolved policy areas, independence would give them powers to make them in any form. What we should avoid doing is creating new summary offences from what are essentially civil wrongs/injuries. New summary offences could be introduced concerning, for example, abusive behaviour online, clearer rules around inappropriate active travel (i.e. disability scooters, skateboarding, e-bikes, e-scooters) and things like disinformation/misinformation from people in a position of trust (i.e. politicians lying, fake job ads) and cold calling.
Repealing or reforming outdated summary offences – At a glance, this could include either-way offences like affray (which has often been too vague or considered not as serious as ABH or GBH when it it’s supposed to be), certain drug-related offences such as low-level possession, laws around public nudity and school non-attendance/truancy (there are better ways to deal with it). There would be an opportunity to consolidate and simply driving offences too, for example.
6: UK Ministry of Justice, Criminal court statistics quarterly: July to September 2021 (20th January 2022). Magistrates’ court casts received, disposed and outstanding. Available at: https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2021
