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Making Criminals “Pay Their Way”

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Amendments from the House of Lords on a controversial bill 'aimed at revamping sentencing and ensuring the courts deliver efficiency for the taxpayer' will be considered by the House of Commons this month. The Criminal Justice and Courts Bill was unveiled in February 2014. The Government has described the Bill as ‘ambitious’, because the Bill attempts to rectify a variety of problems within the criminal justice system. These issues include closing sentencing loopholes, changing the rules in relation to criminal cautions and speeding up the Judicial Review process.

This article will focus on the proposal for criminals to pay court costs incurred from their cases. Chris Grayling, the Lord Chancellor and Secretary of State for Justice and the person who introduced this Bill to Parliament, has been particularly keen to:

[R]educe the burden on hardworking taxpayers of the costs of running the courts… We’re on the side of people who work hard and want to get on, and that is why these reforms will make sure that those who commit crime pay their way and contribute towards the cost of their court cases.

In the original Bill, Section 29 sets out the proposal for forcing criminals to pay criminal court costs. The amount of money that a criminal would be charged would be dependent on regulations specified by the Lord Chancellor.

If the Bill becomes law, it could raise an ‘estimated £30 million a year towards the cost of running the court system in England and Wales.

As enticing as that figure sounds, there are valid concerns about this particular aspect of the Bill, which will be explored below.

Cheaper and Fairer for the Tax Payer

The main focus of Grayling’s reform is on fairness for taxpayers:

My priority with these reforms is to deliver a tough package of sentencing measures to make sure offenders are punished properly and consistently, so that the law-abiding majority know that we’re making the changes needed to keep them and their families safe. I also want to make sure we reduce the burden on hardworking taxpayers of the costs of running the courts.

The appeal of this argument is fairly obvious. Grayling suggests that costs incurred because of criminal acts should not be borne by law-abiding citizens because it is not fair that they should pay for crimes that they did not commit. It is very much a ‘you break it, you buy it’ attitude. That is not to say that it is inherently wrong; indeed, as the vast majority of people are not convicted criminals, it does seem unfair that law-abiding citizens have to suffer negative consequences because of a minority of people.

Moreover, the contributions to court costs paid by convicted offenders provides at least a partial solution to financing the criminal justice system. In 2013, England and Wales had the 10th most expensive legal system in the world. Cuts to legal aid have been a prominent issue in the news this year. Attempts to provide more funding to the justice system are therefore very appealing, because there will be less demand on taxpayers’ pockets.

The problem with this argument, however, is that economic reality does not necessarily line up with this ideal. As previously noted, the new surcharge is expected to raise £30 million. However, The Telegraph is sceptical about the impact this will have on the justice system budget. The new fee is intended to contribute towards the administrative costs and day-to-day expenses of the criminal justice system, such as paying court staff. However, in 2012-13 the net operating cost of HM Courts and Tribunals Services was £1.3 billion. The new fee would, therefore, meet only a tiny percentage of the costs it is intended to cover.

It could be argued, therefore, that the main benefit of Grayling’s proposal will largely fail to deliver on its promise. From the arguments presented here, the suggestion to charge criminals for courts costs is not substantially beneficial in economic terms. Moreover, it is important to note that the majority of crimes (76% in 2013) are summary offences. These offences are the least serious out of the three offence categories. The majority of convicted criminals are, therefore, committing petty crime, and are often economically motivated. Imposing financial penalties on an offender who is struggling financially ignores the underlying issues at the heart of criminal behavior.

In addition, imposing more strain on the finances of offenders does little to prevent economically motivated re-offending. With living costs rising in the UK, the poorest people may prefer to take a chance on criminal behaviour. Placing additional costs on convicted offenders therefore ignores the reality that many will risk being caught again in order to try meet their financial obligations. Indeed, one could argue that the costs would entrench convicted offenders in a vicious cycle of re-offending. This will be explored further below.

Financial Punishments Ignore Socio-Economic Reality

Imagine that X steals a wallet. If X is caught, he will be forced to pay towards the costs of his case in court, and is also likely to have to pay a victim’s surcharge, which is an ancillary order that funds victims’ services. X will also have to bear the costs he incurs from going to court, such as transportation or childcare expenses.

On the one hand, this seems fair. X broke the law, and therefore deserves to suffer the consequences of his actions.

However, you cannot help but notice that this argument seems to be quite ironic. It seems obvious that X probably stole the wallet in the hopes of finding money inside, or something he could make money from. If we ignore the reasons behind crime, then we cannot make fully informed decisions about punishment. There is nothing to suggest, for example, that X, having been punished in this instance, will never commit another crime. Indeed, reoffending rates for crimes such as theft as astonishingly high. In 2005, assessments demonstrated that ‘over 23,000 offenders had financial problems linked to their offending.

It is likely that this is because X is still in the same economic position he was in prior to stealing; in fact, he may have been made, even temporarily, worse off because of the financial sanctions.

Back in February, The Telegraph suggested that ‘the average surcharge would be just over £26’.

However, the Ministry of Justice has stated that:

The Government has now published draft charge levels, ranging between £150 and £1200, in order to inform Parliamentary debate… These charge levels will be reviewed and finalised prior to implementation of the criminal courts charging policy.

The law has to consider how those in poverty will be able to afford this amount. The economic reality is that many criminals are very poor, which explains why they have turned to crime. This issue has only been made more serious by the economic crash in 2008.

In relation to current proposals then, Grayling may have to concede that forcing criminals to contribute towards court costs could be an inherently short-sighted affair. Placing economic burdens on low income defendants does not help to prevent reoffending, and, arguably, attacks them in their weakest area.

Government statements have previously shown a pragmatic stance towards reducing the reoffending rate:

Around half of all crime is committed by people who have already been through the criminal justice system. The cost to the taxpayer of reoffending is estimated to be £9.5 to £13 billion per year…

Punishment is an essential part of the justice system, but on its own it does not stop people reoffending…

The same criminals repeatedly pass through the courts, prison and community sentences, creating new victims of crime and extra costs to the taxpayer.

However, Grayling’s proposals seem to conflict with the picture that has been painted here. It seems that the economics behind the proposals has been calculated without reference to the socio-economic backgrounds of the vast majority of convicted offenders.

Double Punishment

Grayling is committed to making sure that ‘offenders are punished properly and consistently’.

The “consistently” comment is not particularly alarming; consistency in punishment is one of the essential elements in commensurate sentencing. This ensures that bias or prejudice do not corrupt the justice system.

But what does Grayling mean by ensuring that offenders are punished “properly”?

On the one hand, it could be argued that Grayling is simply stating that the punishment should fit the crime. Hence, the criminal courts may be alive to the unjust nature of disproportionate sentencing and sanctioning. This also seems to be uncontroversial, as it strikes a balance between fairness for the offender and for society.

On the other hand, however, it could be interpreted that Grayling is pushing for harsher punishments for convicted offenders. This interpretation seems to fit with Grayling’s aim to deliver a “tough package” of reforms. Again, this could be seen as uncontroversial, as many people do believe that the State should have stronger punishments for criminals. Worryingly, though, the proposal to make offenders pay towards court costs could be seen as bringing in harsher punishments through the back door. Rather than setting definitive punishments for crime, offenders may find that they are being punished repeatedly for the same action.

To utilise the previous example where X stole a wallet, X could face:

  1. A fine, community or custodial sentence;
  2. A victims’ surcharge; and
  3. A bill for court costs.

Moreover, as the Ministry of Justice have made clear:

Courts already have a number of powers to require offenders to make payments including compensation for victims, the Victim Surcharge - which funds victims’ services - prosecution costs, and fines.

The proposed fee would be calculated according to which type of offence has been committed, and whether the offender pleaded guilty as early as possible. In relation to this, the proposal has to be commended for attempting to reduce time spent in court determining guilty by providing incentives for early admissions. Reducing court time lowers costs, so it has to be admitted that Grayling’s proposals should work well here.

However, in a society where proportionate sentencing is held to be just sentencing, it appears that the contribution towards court costs simply adds another element to punishment. Unless there is a clear and strong justification for imposing the court costs on to an offender, it is not clear why convicted criminals should be punished multiple times for the same action. That is not how a just society operates, and it conflicts with the basic principles of fairness in the criminal justice system.

Utilising the Law for Political Gain

This article has investigated the consequences of the proposed new charge for convicted offenders. As we have seen, making criminals pay appeals to a natural sense of justice and fairness. However, on closer inspection, it does not seem to make much economic sense to impose these charges, and neither does it seem fair to enforce a kind of ‘double punishment’.

The problem is that many people will not take the time to investigate further. Politics and the law can seem extremely removed from every day, normal life for many people. Hence, policies which appeal to a natural sense of fairness are likely to be popular, even if they do not produce particularly beneficial consequences in the long term. There is a valid concern here that politicians may utilise the law for political gain. The appeal here is that politicians can be seen to be doing something about a particular social panic, such as the cuts on public spending, without concern for the consequences. Often, utilising the law in this way inflicts disproportionate burdens on the minority. For example, in this case, convicted offenders are directly affected by the proposed new charges but, if they are serving a prison sentence, they do not have the right to vote and affect change.

If the law is not carefully scrutinised, and if all the consequences are not considered, we may end up punishing the punished, and expanding the gap between the poor and the rich.

As the Criminal Justice and Courts Bill is not yet finalised, there can only be speculation about its impact on the criminal justice system. However, as this analysis has shown, it is unlikely that piling more charges on convicted offenders will have many positive consequences in the long term. Paying for the criminal justice system will always be a controversial issue because convicted offenders have broken social norms and values which have legal significance, but that is not to suggest that Parliament should support laws which fail to account for the underlying problems of criminal behaviour, such as poverty and the lack of education.

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Tagged: Criminal Law, Justice

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