Shortly before the dissolution of Parliament for the General Election, justice secretary Chris Grayling announced that new fees for criminal court proceedings would shortly be introduced and the bill handed to those defendants convicted of offences. The timeline for the change has been remarkably speedy. On 12th February 2015, the Criminal Justice and Courts Act was granted royal assent. Six weeks later, the policy – enabled by Section 54 of the statute – was announced and laid before Parliament. Just over a fortnight later, the charge was enacted by statutory instrument.
The policy introduces a substantial shift in the burden of costs. Any convicted offender over the age of 18 has to pay a fixed, non-discretionary fee. This ranges from £150 for a guilty plea to a summary offence in the Magistrates’ Court, up to £1200 for conviction after a trial in the Crown Court. The fee is not means-tested. Potentially, failure to pay can result in ‘a term of imprisonment… as a last resort’ (here, PDF). The Government argued that the policy is justified on the basis that ‘adult offenders who use our criminal courts should pay towards the cost of running them… reducing the burden on taxpayers’.
This policy not only offends the values of fairness, proportionality and justice, but will, in reality, amount to nothing more than a fruitless exercise in debt creation – it is therefore both wrong in principle and pointless in practice.
Unfair, Unjust and Disproportionate
The policy introduces a very substantial change to the structure of court fees which will effect millions of people: defendants, lawyers, magistrates, judges, legal advisers, court staff. Whilst the Government undoubtedly has the prerogative to introduce any policy it likes, this one was finalised and implemented without any form of consultation with representative groups such as the Law Society and Magistrates Association (here). Such groups might have provided the Justice Secretary with an ‘on-the-ground’ perspective of the impact the new charge might have. Presumably, the policy was not subjected to such scrutiny because a variety of critical arguments would have been raised, posing a barrier to a swift introduction. The timing of the announcement causes one to speculate whether the Justice Secretary foresaw this and sought to circumvent such obstacles. As stated above, the policy was unveiled on virtually the last day of the Government’s term, with the fees introduced during election purdah. Moreover, the announcement came in the wake of the legal profession’s unsuccessful judicial review of the Justice Secretary’s legal aid reforms. Perhaps the Justice Secretary figured that the demoralisation of this recent defeat might hobble open opposition to the new court charge. Several commentators have therefore concluded this change was ushered in through ‘the back door‘.
The court service is a public service. Like schools, the NHS, or the structures of Government, it is paid for by the taxpayer and run for the benefit of all. Not everyone has a child, but we accept that educating children has essential social benefits. Similarly, justice is a public good. It is necessary to thoroughly and fairly consider accusations of criminal behaviour. The court fees in question relate not to the provision of lawyers for the prosecution or defence, but for the running of courts, payment of court staff (including the judiciary) and the general administration of the justice process. Whether someone is innocent or guilty of an offence, these processes are essential. They must exist and have done for centuries. They do not simply benefit defendants; they benefit victims, witnesses and the public at large. Compelling guilty defendants to shoulder a substantial burden of the cost suggests that they are the only financial drain on the court system and the only beneficiary of its functions. Any experienced practitioner will explain how much time is wasted by a variety of parties, particularly by the Crown Prosecution Service: a chronic problem resulting from – unsurprisingly – the under-funding of this crucial arm of the justice system. Time is also consumed by witnesses, securing of interpreters, the transfer of prisoners, and defence representatives too. The point being that defendants, alone, are not the creators of court costs.
Some might argue that by committing a crime, defendants have initiated the process. Without their actions, no costs would have been created. Whilst one can see some validity in this argument, there are a number of arguments one could explore about why people commit crime (no, not because they are ‘evil’) and the root causes of illegal behaviour which cast doubt on the pantomime villain role usually assigned to offenders. A comparison of the justice system with the NHS also raises doubts.
If someone causes their own injury or illness – plays with matches, performs a dangerous stunt, or attempts suicide – the NHS does not say: ‘You created your own problems; once we’ve finished treatment, you must pay an extra fee.’ That would clearly be punitive. The fundamental idea is that the NHS is a public institution which treats all those who need it, regardless of the source of the problem – or their means. The court system is no different and recent evidence suggests that the public consider it to be as vital an institution as the health service.
Moreover, many if not most defendants will have already made their contribution through the tax system, as all citizens do for public services. Again, regarding the NHS, we do not say: ‘You’ve paid like everyone else, but because you are now using the system you must pay an extra fee.’ For those who might argue that unemployed defendants have not contributed, again, I would raise the example of the NHS: we do not insist that the unemployed pay an additional charge because they are not a part of the tax system.
In the 12 months ending March 2014, 1.16m defendants were convicted of offences in English and Welsh courts. The new charge is arguably tantamount to an additional tax on this very large group. Like the age-old argument about speed cameras, the policy is an easy way for the Government to make money (and from a group demonised by the general public). Moreover, with the numbers of court convictions falling (around 400,000 less than in March 2004), expanded use of technology in courts, and a plethora of efficiency initiatives aimed at criminal proceedings, one wonders whether a charge is even necessary for a shrinking court system.
The court system is not simply a mechanism for determining guilt and doling out punishment. Any time spent in court highlights that, more often than not, it deals with people struggling with serious social, physical, financial and emotional problems. It has a strong social service dimension. The court system exists not only to punish offending but to address it – and addressing it almost always requires addressing these problems. The court system is therefore a force for positive social change.
It has the legal power to direct offenders to undertake programmes aimed at tackling these problems. Its operation is of benefit to the wider public, not just the defendant. A key objective is to assist offenders in changing their behaviour, whether that be through drug or alcohol treatment, counselling, community service or, as a last resort, custody. Criminal activity is often the tip of the iceberg of a chaos existing in the lives of people across the country. Not all ‘criminals’ are inherently wicked and malicious people.
Many are desperate and under-privileged, trapped in lives that make crime more viable than lawfulness. The court system is an arbiter of social change. It deals with millions of troubled lives every year. To hand a large bill to such people is to de-emphasise the socially beneficial role the courts play and, more importantly, is likely to deepen the problems the court is seeking to address along with its partner agencies.
Punishment is a central part of the criminal justice system – and it should be. The additional fees demanded of convicted defendants are undoubtedly a punishment for offending. But, lest we forget, there already exists a system of punishment, commonly known as ‘sentencing’. Offenders are sentenced for crimes committed – fines, community orders, rehabilitative treatments, custody and other forms. Magistrates and Judges have more than adequate sentencing powers to deal with all the offenders before them.
The new charge is equivalent to a ‘top-up’ punishment – an extra clip round the ear, once the caning is over. A key feature of sentencing is judicial discretion, representing an inherent part of the separation of powers and the rule of law. The new court charge is mandatory. The judiciary MUST impose it on convicted defendants. This is no less than the executive tying the hands of the judiciary, offending the separation of powers and undermining the rule of law.
Defendants are currently eligible to pay prosecution costs of at least £85 (which is almost routinely imposed), must pay a victim surcharge (usually around £15) and contribute to their legally aided defence. They are already bearing fairly substantial costs, alongside their sentence. To add court fees that could be more than ten times these figures is a startling and unprecedented increase, especially since they are not clearly related to a specific element of the court service. How they have been costed is unclear. The Justice Secretary may argue it is a fair apportioning of costs, but many would say this is disproportionate, punitive and populist – a method of super-taxing an unpopular section of society who are already being punished via a sentence, already pay costs, and are not the only beneficiaries of a functional and properly funded criminal justice system.
For those who are guilty it might be argued that the new charge will act as an incentive not to waste court time. Whilst this has some merit, there are several issues with the argument.
- First, it is not the role of the defendant to ‘help’ secure a speedy conviction. That burden belongs to the prosecution.
- Second, a defendant may not believe themselves to be guilty, despite the opinion of others. This can only be determined once the issues and evidence have been considered. This is the raison d’etre for the criminal justice system and a long history of miscarriages of justice has taught us that preconceptions of guilt and innocence can be very wrong. ‘Guilt’ is not always a black and white issue prior to a trial. Defendants do not always ‘know’ that they are ‘bang to rights’. Equally, defence lawyers should not be tasked with the job of determining guilt or persuading their clients to plead. This would create, as Richard Wasserstrom termed it, an ‘oligarchy of lawyers’, interpreting justice behind closed doors (Wasserstrom R. (1975) Lawyers As Professionals: Some Moral Issues – 5 Human Rights, 6). A plea is a defendant’s decision and their view is no less valid than that of the court, the prosecution, the defence lawyer or the public at large.
- Third, every citizen is presumed innocent until proven guilty and should be given the opportunity to test a prosecution case before a court of law. This is also of public benefit. It ensures that justice is open and that prosecutions are robust, legitimate and appropriate. Yes, it costs money: but that is money well spent if it means that criminal justice remains effective and fair.
- Fourth, if a prosecution case is water-tight, the majority of guilty defendants will plead as such and accept their punishment, regardless of the new charge. The change in policy will most acutely effect those defendants who genuinely have a viable case of innocence. Prosecutions which lack a strong evidential basis or are speculative should be tested, even when a defendant is guilty. The CPS must not be encouraged to run weak cases. If guilty and innocent defendants alike fold prior to a trial for fear of incurring large costs, then the prosecution will have fewer incentives to construct robust and reasonable cases. They will be able to ‘get away’ with flimsy prosecutions, which will inevitably lead to both the conviction of the innocent and the acquittal of the guilty. These are the ultimate distortions of justice, caused not by the testing of the evidence but by the testing of a defendant’s finances.
One of the most objectionable implications of the new charge is therefore the influence it may have on choices of plea. A defendant who pleads guilty will pay, generally, a much smaller charge than a defendant convicted after a trial. This will act as an incentive to plead guilty early (which is clearly the intended effect). However, the desire to avoid large charges will likely impact on both the guilty and innocent, distorting decision-making and causing injustice. It is reminiscent of the system used for car parking charge notices: pay the smaller fee immediately or challenge the decision and risk the consequences of a bigger bill. This practice has been routinely abused and frequently criticised – most notably by the Justice Secretary’s cabinet colleague, Eric Pickles. Moreover, a major criticism has been that such fees are used as an excessive punishment, rather than compensatory – as argued above.
For the innocent, the risk of incurring a large fee may persuade them to plead guilty. They may fear that they won’t be believed, that they do not have enough evidence of their innocence (even though this is not required of them), or that they do not trust magistrates or juries to make the right decision. They may even fear the trial process and not consider it worth the trouble. Reputations and employment are often under threat, even after an acquittal. Going to trial, whether innocent or guilty, is a risk. Numerous miscarriages of justice have amply demonstrated the fallacy of the phrase, ‘if you’re innocent, you have nothing to fear’. An innocent person, under pressure and thinking of the future, may opt for the certainty of a quick conviction, a smaller bill and a lesser sentence rather than gamble on a trial. For defendants with mental health issues or financial problems, this decision may seem even more appealing as it means less stress, no confusing and intimidating procedures to maneouvre, and lower risk. Add to this the current incentive of the guilty plea discount scheme and you have a recipe for miscarriages. There is already – within weeks of the introduction of the charge – some anecdotal evidence of the innocent pleading guilty to evade additional costs (here).
Impractical and costly
For any person who has spent a significant amount of time in court, the idea that the new charges will be recovered from your average defendant is questionable. Financial penalties are currently the most common sentence in the criminal justice system. The amounts owed to the courts are enormous.
During the passage of the Criminal Justice and Courts Bill through Parliament, it was revealed that, as of July 2014, £549m was owed to HMCTS, with 48% of fines unpaid after 18 months (here). Offenders typically pay these fines in small weekly instalments (around £5 to 10 per week, depending on means). For fines that run into the hundreds of pounds, this can mean a year of repayment – without complications.
Since a large number of defendants are repeat offenders, they often have a backlog of debt. I recently observed a defendant who was still paying back over a £1000 worth of fines, a situation which had been ongoing for several years. Add to this the routine prosecution costs, victim surcharge and legal aid contribution, and you have a very large unpaid bill: and that is the status quo. Adding, potentially, several hundred pounds to these existing debts will undoubtedly increase it. The Ministry of Justice’s own impact assessment concluded as much, estimating a £1.2bn increase by 2020/2021 (here). Moreover, the scheme will cost around £25m to enforce – £5m of which will be spent on additional prison places. Whether one thinks it is right or wrong that so many offenders are failing to pay the money they owe, the bottom line is this: the Justice Secretary’s charge will not be paid back quickly, if at all, by many defendants. If so many are already struggling to clear their debts, the chances of additional (and much larger) costs being met are surely small.
Most defendants are indigent. Many exist on state benefits, and plenty are unemployed or lack fixed accommodation. Many have drink and/or drug addictions. Many have mental health issues, learning difficulties or a lack of education. These factors make financial self-management very challenging. Poverty and chaos often define their lives. This is not the only problem though. Substantial cuts to HMCTS over the years have meant that most courts no longer have reception desks or adequate administrative staff. Phoning a court, in my experience, is pointless. Courts need to manage the administration of the debts; if they are under-staffed and hard to contact, how will it work?
One cannot simply walk into a court and pay a fine. It must be done by direct debit, deducted directly from benefits or paid using a payment card. All of these, at various times, have problems or face disruption. Convicted defendants often have problems with benefit sanctions or a lack of fluid capital. Resolving such issues is very difficult when offenders cannot cannot contact courts or afford to travel to court centres. Often, offenders simply stop paying because they cannot find any other way of getting assistance. They are summonsed, magistrates must sit and hear their account, and the issue is (possibly) resolved. This costs money – perhaps more than the original fine. Such a system is farcical and a false economy.
The notion that the new court charge must be recouped from defendants in addition to these existing difficulties belies the lack of understanding – as well as lack of empathy – that the Justice Secretary has for those faced with paying the fee and administering the policy. It demonstrates a lack of practical understanding of the court system. It also provides evidence of a lack of familiarity with fundamental principles of justice, the role criminal proceedings play in society and the importance of protecting parties to the process. Its introduction seems to be blind to both essential principles and the reality of practice – perhaps wilfully, given that the policy was imposed using procedural subterfuge. The Justice Secretary is required to review the charge three years after its implementation. I would urge whoever occupies Petty France from May 2015 to do so much sooner.
Tom is a senior research fellow and associate lecturer in the Faculty of Business and Law, University of the West of England. His primary research interests are criminal defence lawyers, legal aid and criminal procedure