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August 26, 2015

How did the criminal court charge get through parliament?

There are now many protests about the criminal courts charge – protests that have increased as people have realised how unfair it is. The charge was brought in under the Criminal Justice and Courts Act and began to be implemented around Easter time.  It imposes a courts administration charge on all those convicted of crimes in the magistrates’ and Crown Courts.  These charges (up to £1,200) are in addition to the victim surcharge, compensation payments and, sometimes, fines for the crime concerned.  There is no flexibility for judicial discretion in imposing these court charges and the only people who do not have to pay are children under 18.  The court charges are considerably higher in the crown court and much higher if you plead not guilty and go to trial.  I’ve written before about the threat to justice posed by this strong incentive to plead guilty.  But there is also a financial incentive not to opt for a jury trial in the Crown Court.  The Howard League has focussed their anti-charge campaign on the iniquity of charging for minor crimes often driven by poverty.  They trawl local news-sites and tweet daily tragic stories: “Homeless man who stole bacon, cheese and sherry (total £15) gets 10 weeks in prison, £150 #CriminalCharge and had to pay £15 compo”. In another case a “bankrupt man fined £250, told to pay £150 #CriminalCharge + £25 surcharge, for stealing £1 bag of Chocolate Buttons”.

Opponents of the charge bemoan the fact that it “was sneaked through the dying embers of the last parliament”.  But, unfortunately, I don’t think it was.  The Criminal Justice and Courts bill was laid before parliament in February 2014 and the criminal courts charge was in the bill from the very beginning, together with an impact assessment and, I think, a list of probable charges (these draft charges are undated).  The measure was justified in the explanatory notes: “this provision will require courts to impose a charge on all adult offenders who have been convicted of a criminal offence and the level of the charge will be set by the Lord Chancellor. In setting the charge, the Lord Chancellor expects to have regard to factors likely to affect the cost of proceedings, such as whether the offender pleaded guilty, whether their case was dealt with in the magistrates’ or Crown Court, and the offence type. It will be collected after other financial impositions – compensation, victim surcharge, prosecution costs and fines – have been paid off, at a rate the offender can afford”.  This last provision – that the charge should be affordable – is the bit that didn’t seem to be followed through, given that the current charge is high and, arguably, not affordable for many people.  Despite the criminal court charge being in the bill from the beginning, it attracted no media attention and very little campaigner attention.  Justice included an excellent critique of the charge in their briefings on the whole bill.  The Magistrates’ Association expressed concerns, particularly about the lack of judicial discretion.  In parliament, the shadow ministers Andy Slaughter MP, and Lord Beecham, argued against the charges but failed to carry amendments.  Without a lot of noise and/or a rebellion in the Lords, they were doomed to fail.  Individual magistrates had no idea what was about to hit the courts, or they might have protested.

There is now considerable unhappiness in almost all quarters about the charge.  Lawyers are up in arms, lay magistrates are resigning and the Select Committee have launched an inquiry into court charges.  Where those like Obiter J are right, is in suggesting that the criminal court charge slipped through the parliamentary process relatively easily. It did and that ease highlights some of the deficiencies of the system.  This was the umpteenth criminal justice bill in recent years, and it was full of contentious measures including the secure college and significant changes to judicial review.  Campaigners and politicians focussed on these and had little time to properly scrutinise the bill.  I think the answer is for the government to stop tabling rag-bag criminal justice bills, containing proposals which have not been subject to public consultation.