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September 24, 2015

Why has the criminal courts charge inspired a barrage of criticism?

The Justice Committee wants to know what we think about the criminal courts charge and other court charges.  I have written before about the background to the criminal courts charge, that it went through the full democratic process, but with no prior public consultation.  Transform Justice is submitting evidence to the inquiry and these are our main concerns about the charge:

  • It adds to a confusing number of court charges. Courts are already under pressure to impose compensation orders, victims surcharge and sometimes fines, and CPS costs on those who are convicted.  There is differing guidance relating to each amount and together they can amount to a considerable sum for someone on low income.  The bureaucratic cost of dealing with four different costs must be considerable.
  • It provides a very strong incentive for defendants to plead guilty, even if they are innocent. The government has tried hard to incentivise those who are guilty to plead guilty at the earliest opportunity, thus saving court time.  Already most sentences are reduced if the defendant pleads guilty at an early stage.  This new measure presents a powerful new incentive to plead guilty, since the charge increases four to eight fold if a defendant goes to trial and is convicted.  In some cases, it is hard to prove innocence.   Currently, the danger is that an innocent defendant will choose to plead guilty, because they cannot afford to take the financial risk of being convicted.
  • It imposes a charge on people which is disproportionate to the crimes committed and which they are very unlikely to be able to pay. The Howard League has regularly tweeted and published cases which seem unfair – a homeless man ordered to pay £455 including £180 courts charge for possessing a small amount of cannabis, a man who stole an ice-cream given a conditional discharge but obliged to pay £150 criminal courts charge.
  • The charge framework provides a strong incentive for defendants not to opt for jury trial in the Crown Court, nor to appeal a sentence from the magistrates’ court. For “either way” offences, the charge is £200 higher if you opt to go to the Crown Court.  The charge for having an appeal from the magistrates’ court dismissed is £150. There are already many barriers to defendants appealing their sentence.  This adds another barrier and thus threatens the accountability of the justice system.
  • Judges are struggling to implement the charge. The wider judiciary, including magistrates, were not consulted on these proposals.  Over thirty (it is not clear how many) magistrates have resigned in protest and most magistrates are deeply unhappy about the charge.  There is some evidence that judges are using creative means to mitigate the charge.  I have heard that some Crown Court judges are ignoring the charge altogether, some magistrates are refusing to impose prosecution costs and, in other cases, they are giving absolute or conditional discharges.  A magistrate in the North of England told me of a case where someone had pleaded guilty to criminal damage to a car.  He was on benefits and had no recent criminal history.   The court wanted to impose a compensation order, so at least the owner of the car got some recompense.  But you cannot impose a compensation order without also imposing the criminal courts charge.  So they imposed a conditional discharge for 18 months, but no compensation order or court charge.
  • There is a risk that the charge will not achieve its aim – bringing in £90-160 million per annum to subsidise the cost of courts administration. If judges avoid imposing the charge, and those convicted fail to pay the sums involved, the income generated will be considerably reduced.  There is also a risk that the charge will have a knock on effect on the finances of the Crown Prosecution Service and on victims.  Courts have some discretion over the amount of compensation awarded and on whether CPS costs are imposed on those convicted.  Given that the criminal courts charge is a fixed amount, they may reduce the amount of compensation offered to victims, or reimbursement of CPS costs or both.

I hope the Ministry of Justice will look urgently at the viability of the charge.  It would be difficult to replace the income the charge is predicted to produce, but a quick consultation exercise would generate a host of good ideas for short term cost savings.