This week the government snuck through a major and damaging change to the criminal justice system. They want to charge defendants hundreds of pounds to stand trial. New regulations mean that people convicted of a criminal offence will have to pay fees of up to £1,200 towards the cost of their court case.
- The painting is from the British Library’s exhibition ‘Magna Carta: law, liberty, legacy’
The fees are not means-tested and they’re compulsory. Courts can enforce the fees, and they’re on top of the increasingly oppressive regime of penalty fines, prosecution costs, contributions to the victims of crime, and legal aid contributions, which anyone accused of committing a crime could face.
These new rules will affect a person’s decision on whether to plead guilty or maintain their innocence. That’s a dangerous interference with justice.
Typically, lawyers only have a few minutes to advise their clients on plea at a first appearance: to assess the strength of the evidence and decide whether the prosecution’s case can be made out. A person charged with an offence will now have to think carefully about whether they can afford to stand trial. The financial impact of a conviction on the defendant’s family will hang oppressively in the air.
This was unexpected. Even those who thought that the legislation may be squeezed in to this parliamentary session must have been astonished by the rates – it was thought that the fees ‘could be as high as hundreds of pounds’. Instead, a basic magistrates court trial will start at £520, and increase to £1,000 for more serious offences. The right to a trial by jury in the Crown Court will cost £1,200.
Even if someone pleads guilty they’ll be charged £150 in the magistrates’ court, and a hefty £900 in the Crown Court.
A functioning criminal justice system is in everyone’s interests, but the government thinks the cost should be borne by those who can least afford it rather than the state. The fees have been described as ‘a tax on the poor’ to fund the criminal courts.
Even for those who agree in principle that people should pay to stand trial – and, scandalously, its supporters include the Bar Council – these regulations must seem like a blunt mechanism. The huge cost of the fees and the lack of means testing show that they’re a spiteful attack on poorer people. Civil court fees, and even the disastrous Employment Tribunal fees system, can be written off or reduced for people on low incomes or passporting benefits, but these fees show the government’s thuggish attitude to anyone who’s committed a crime.
Coincidentally, perhaps, the regulations were published just as criminal lawyers were preoccupied with an appeal against damaging changes to criminal legal aid.
They were also rushed through parliament just before an election, which might mean they’re unlawful. It seems the Ministry of Justice realised it hadn’t given itself enough time to pass the regulations between 13th April and the pre-election purdah (when no new legislation is allowed). The minister in charge signed off the regulations before he had the legal power to do so, because the relevant parts of the Justice and Courts Act 2015 aren’t yet in force. He relied on a law that allows ministers to rush through laws where it’s ‘necessary or expedient’ to do so.
Of course the law could be challenged when the regulations come into effect in April, but it would be intolerable if any defendants felt compelled to plead guilty because they couldn’t afford a costly trial while the regulations are under review.
And even if the new charges are lawful, that can’t excuse the MoJ’s characteristic contempt for fairness, thoughtful lawmaking, and a functioning criminal justice system.
Nick Bano is a barrister at 1MCB Chambers. He practises in housing & community care, criminal defence and employment law. He is the editor of Socialist Lawyer magazine