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‘What Price Justice?’ Criminal Court Fees are Punishing the Vulnerable

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About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

In April this year, then justice secretary Chris Grayling announced plans to make further savings to the Ministry of Justice’s already greatly-diminished legal aid bill by requiring that those convicted of criminal offences contribute directly to the cost of running the courts. Despite the many legal and practical problems with this measure, not least of which being the issue of collecting such payments from those convicted of crimes, many of whom are likely to be unable to afford them, Grayling expressed his belief that the controversial measure would be an asset to the justice system, asking:

Why should the law-abiding, hard working majority pay for a court service for the minority who break the law? Those who live outside the law should pay the consequences both through being punished and bearing more of the costs they impose on society. That is why we are exploring ways to make criminals pay towards the cost of their prosecution in court.

This criminal court levy came under a lot of criticism, with many prominent lawyers and members of the public alike questioning both its likely efficacy and the ideology behind it. As the justice system has until now been seen as a public service with widespread public benefit, akin to the NHS or the police, it struck many as bizarre that the Government would be seeking to ensure that it was subsidised by regular users – after all, there would (rightly) be public outcry if the Government were to raise such charges against those who were regularly ill, or regularly required police assistance. Indeed, such criticism continues, as demonstrated by recent statements from Mike Hough, professor of Criminology at Birkbeck School of Law, who branded the policy ‘very unfair and unpleasant’ and stated that it risks breaching human rights law by encouraging the innocent to plead guilty.

This article will examine the legislation in theory, along with the impact it has had in real terms in recent court cases.

Criminal Court Charges

The charges came into effect on 13 April 2015, having been laid before parliament only a few weeks previously, hot on the heels of a new 5% levy for civil claims worth over £10,000 which was introduced in March. Prior to 13 April, judges could impose fines and costs on convicted defendants in addition to a mandatory victim of crime surcharge of up to £120. The new charges were contained within a statutory instrument enabled by the Criminal Justice and Courts Act, which was granted royal assent in February.

In the magistrate’s court, Defendants convicted for a summary offence on a guilty plea will be charged £150, whilst conviction at trial costs them £520. In the Crown Court, a conviction on a guilty plea incurs a £900 charge, whilst a conviction at trial on indictment warrants £1,200.

Many in the profession criticised the haste with which the measures were brought in and the apparent lack of consultation that accompanied them. Whilst the ability to change criminal court charges was not some sort of ‘hidden provision’ of the CJCA, it had previously been reported that charges would be capped at £600, and so the charges that have materialised appeared to come very much ‘through the back door’.

The charges are not means tested in any way, and there is no discretion for magistrates or judges to waive the charges where it is evident that a defendant cannot afford to pay them, in which case they are imposed regardless of this apparently irrelevant obstacle. Nor are they adjusted for proportionality in comparison to the seriousness of the crime committed. Obviously, therefore, the punitive effect of the charges on a less well-off defendant convicted of a relatively minor offence, say, petty theft, would be greater than the effect on a better-off defendant convicted of a more serious offence. It may be unsurprising to some that a Conservative minister would be keen to disproportionately punish the poor but problems with the charges extend far beyond the inequality of its effects.

Human Rights Implications

The key issue with the charges in both principle and in practice is the possible, indeed likely, impact that they have on due process and a defendant’s right to a fair trial. At the time the charges were brought in, Law Society President Andrew Caplen described them as ‘outrageous’, pointing out that:

Although this will not affect the robust advice that solicitors give to those who maintain their innocence, the differential in the charge for a guilty and not guilty plea may well affect the decision made by individual defendants.

The right to a fair trial is enshrined not only in our common law traditions, but also in statute, including, allegedly, a current government favourite, Magna Carta. The most pertinent current legislation is Article 6 of the European Convention on Human Rights which states that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

This is enshrined in UK law by Article 6, Schedule 1 of the Human Rights Act 1998.

For a trial to be considered fair, the defendant must have a real opportunity to challenge the case against them. It is not unreasonable to consider that if a defendant considers their conviction to be likely – whether or not they actually committed the crime in question – then the economically sensible thing to do when faced with criminal proceedings is to take a guilty plea at the earliest opportunity to minimise the charge imposed. There is also the further point that the less money a defendant has available, the more pressing a concern the charge imposed is likely to be. The mandatory and inflexible nature of the charges therefore not only clearly risks placing financial pressure on innocent individuals to plead guilty, thus impeding the universal right to a fair trial that forms a central basis of our justice system and indeed justice systems around the world, but also disproportionately affecting the rights of poorer defendants.

There have already been widespread reports that cuts to criminal legal aid are likely to impede a defendant’s right to a fair trial by creating a system that unjustly and unavoidably prioritises those with the means to pay for representation. The introduction of these charges means that even those who can afford representation have a financial impetus to plead guilty at an early stage, whether or not that is the truth. The right to a fair trial underpins the notion of ‘justice’ within our justice system – for these rights to be so enthusiastically infringed by the minister allegedly responsible for that is undoubtedly a cause for concern.

Effects in Practice

Now, six months on from the introduction of the fees, we have had the opportunity to see their effects in practice. The first, and I believe most important, consideration must be the situations in which the mandatory nature of the charges means that the fines have been imposed. The Howard League has launched a campaign for an urgent review of the charges, and reports that the charges have been levied against the following defendants:

  • A 19-year-old man who stole sweets and ice cream totalling £5 in value from a supermarket, who was ordered to pay a £35 fine, £180 criminal courts charge, £20 victim surcharge and £85 costs;
  • A 30-year-old homeless woman convicted in her absence of begging in a car park and ordered to pay a £150 criminal courts charge, £30 fine and £20 victim surcharge; and
  • A 20-year-old man who kicked a flower-pot after being stabbed with a needle by a fellow resident at the hostel where he was staying, who incurred a £70 fine, £150 criminal courts charge, £85 costs and £20 victim surcharge.

There are, regrettably, many more reports of disproportionate fines being imposed in situations where there is little or no chance of the debt being repaid. In fact, in such circumstances, the charges operate to push already vulnerable people further into financial difficulties and the desperation that this brings. It is no great stretch to see that, rather than aid the operating of the criminal justice system, the charges only add to the problem of repeat petty offending and the correlation between such offending and the poverty of the offender. It will also likely only add to the administrative burden on the already-struggling court system, particularly if an offender must be brought back before the courts repeatedly in an attempt to recoup the monies owed.

On the other side of the bench, one notable effect is some severe criticism of the fees from the judiciary, culminating in the mass exodus of some 50 magistrates from their positions in protest at the measure. Reports are that more than £5 million was billed to people under the court charge in the first three months, of which less than £300,000 was collected.

There are also reports that many magistrates who remain in position continue to express their disapproval of the fees, which they argue amounts to a ‘tax on justice’, by avoiding inflicting punishments on offenders found guilty of minor misdemeanours to circumvent having to impose the fees. There are increasing numbers of offenders being sentenced with an ‘absolute discharge’, which registers their guilt but gives no punishment for it. This surely cannot have been the intention behind the introduction of the fees, and I have no doubt that many members of the Cabinet would be outraged at convicted criminals being ‘let off’ in this way.

Where the charges have been imposed, they have still often not proved as fruitful as Grayling would probably have hoped. There are myriad cases of judges noting, whilst imposing the fines, that there is little hope of the Defendant being able to pay. For example, Recorder Timothy Raggatt QC, having been informed that a defendant had no money, imposed the charge but stated for the record:

I will make the order only because it is down to statute and not because I think it has any merit. Those who impose these things may have the responsibility of collecting it and whether or not they can achieve anything is a moot point. I wonder how much that will cost the country in terms of administration?

There are other cost-cutting initiatives being explored by the Ministry of Justice, including controversial court estate consolidation plans with the intention of saving on the costs of running disused court buildings and a restructuring of the sentencing of offenders, along with the suggestion that in order to subsidise the holes left by government cuts, lawyers should simply be working for free, as explored in a previous Keep Calm Talk Law article. However, it remains unaddressed that the courts and justice system are woefully under-resourced, with, for instance, the Crown Prosecution Service understaffed and overstretched, only adding to the burden on an already encumbered system.

Ultimately, inflicting the criminal courts levies on people who will not be able to afford to pay them will not generate any additional income for the courts, but rather spread already-stretched resources even thinner and send court staff on futile wild-goose chases to try and recoup fees that are simply not available. Therefore, not only are the fees in dubious standing as regards due process and established international human rights legislation governing the proper administration of justice, they are also fundamentally unfit for purpose and will end up costing the court system far more than they make it. What price justice? On the evidence, it would seem that the system is currently paying the price of sanity.

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Tagged: Courts, Criminal Law, Human Rights, Justice, Legal Aid

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