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In April, the Government introduced charges into the criminal courts. These charges have proved controversial and there are calls for an urgent review. The Chairman of the Bar, Alistair MacDonald QC, explains the profession’s concerns
One of the last acts of the Coalition Government was, without any sort of debate, to slip into legislation criminal court charges payable by defendants.
They came into force on 13 April. In the first place, it seems an utterly extraordinary use of the power to introduce a measure by laying a Statutory Instrument to enact a change with such a great impact on our criminal courts and those who appear as defendants in them. Everyone who practises criminal law knows that defendants are not a homogenous group. They range from the truly dangerous and bad to those who have committed offences largely as a result of their dire social circumstances or their mental health problems. In addition, there is no uniformity of income either. To treat them all as one group, without conferring any discretion on the sentencer to alter the charge depending upon the financial and other circumstances of the defendant, seems ill-judged at best and vindictive at worst.
But there is a much wider concern here than even those initial thoughts suggest. Let’s first look at the figures. If you plead guilty to a summary offence in the Magistrates’ Court, you will be charged £150. After a trial of a summary offence, a guilty verdict will, in addition to any other penalty, result in a charge of £520. If you are convicted of an either-way offence at a magistrates’ court trial you will be charged £1,000. If you plead guilty in the Crown Court, you will be charged £900, while those convicted after a trial on indictment will have to pay £1,200.
The choice of whether you plead guilty to an offence should surely not be swayed in any way by concerns or worries about the financial consequences of that decision. If there is a risk that it might be, the integrity of our system is also at risk. It appears to proceed from a fallacy that, in all cases, it is obvious to the defendant whether he or she is guilty of the offence. In some cases, of course, that is the position. Most people know, or can infer from the evidence even if they have no recollection of the event, that they are guilty of domestic burglary if their fingerprint or a DNA match is found on a broken window, for example. But what about the case of ABH in which the defendant maintains that he is not guilty because he was acting in self-defence, an issue that is capable of more than one answer? It is surely to the advantage of society that such issues are tried by a jury or a magistrate so that society maintains the right balance between the application of lawful and unlawful force. Take another example in which the defendant maintains that his conduct was not dishonest. Again, this is a largely subjective assessment by the jury or magistrate. Isn’t it a strength of our system that such issues are decided by an impartial fact-finder in public? I think it is. Anything that puts in place an improper pressure on a defendant, in my view, damages the integrity of our system of justice.
In addition to all this, the choice of venue in which the case is to be heard, should not be influenced by concerns about the possibility of a higher court charge depending on the tribunal hearing the case.
As I have already said, there is a very high prevalence of mental health problems and social difficulties faced by criminal defendants. It seems to me to be utterly unfair, in any civilised society, to treat the mother, who has stolen food for her children because there has been some clerical error in her application for benefit payments, in the same way as a member of a professional shoplifting gang which has travelled around the country targeting high resale value electrical items, and whose whole modus operandi is to extract maximum benefit to themselves at the expense of society as a whole. Who will find it easier to pay the criminal court charge?
And what about the practical effects of all this? If one of the ideas of sentencing is to rehabilitate as well as to punish, how on earth is the indigent defendant going to be able to pay these charges? Isn’t the overwhelming likelihood of these charges that they will be tempted to commit further acquisitive crimes to pay the charge?
Many criminal practitioners will be aware of the woefully inadequate attempts to collect fines from convicted defendants. Past experience suggests that the costs of trying, very often unsuccessfully, to recover financial penalties from defendants have vastly outweighed the value of monies actually recovered. And, for all the reasons I have specified, many defendants will be the hardest people from whom to recover these charges with their chaotic styles of living and their unstable home lives.
The charging scheme is deeply flawed because defendants should be able to respond to the charges they face without being untrammeled by irrelevant considerations. In addition the scheme has the added disadvantage of a profound unfairness so completely out of kilter with a sense of social equity and compassion which, until recently at least, was so much a part of the national psyche. And that is compounded by the fact that, as the Coalition Government knew full well when they sneaked these measures under the wire, there are no votes in the rights of those facing criminal charges.
How critical it is, therefore, to our conception of a democracy, that controversial alterations to the fundamental structure of our judicial system are debated and discussed publicly before a final decision is taken, and how damaging it is to the very idea of a compassionate and fair society that such decisions are promulgated without debate of any kind.
And this was all done by a Coalition Government which was excoriated by the Public Accounts Committee for their failure to reflect on the effects of the cuts to legal aid wrought by LASPO. The same old mistakes appear to be being made time after time.
The magistracy are, by and large, a conservative group (with a small ‘c’). It says something very powerful that more than 50 of them have resigned in recent weeks in protest at having to impose these charges. The new Lord Chancellor has acknowledged ‘widespread concern’ about these charges and has promised to review them. These ill-conceived measures have no place in the pantheon of the law of England and Wales. For the sake of the reputation of our judicial system, both here and internationally, there is no room for delay. The charges should be abolished forthwith.
Contributor: Alistair McDonald
The Magistrates’ Association
Richard Monkhouse is National Chairman of the Magistrates’ Association, the independent charity representing magistrates in England and Wales. He explains his concerns:
“Our members are very concerned about the impact this mandatory charge is having in the courtroom, ranging from its influence on pleas to questions of fairness and proportionality. We’ve not seen this level of concern before. We conservatively estimate that there have been 50 resignations, but there may well be much, much more.
“Whilst it is the absolute duty of magistrates to apply the law, it’s also our duty as a charity to point out its consequences – and they’re of immense concern. For some defendants the choice is clear – plead guilty and swallow a smaller charge or run the risk by pleading innocent and potentially face a financially ruinous hit. This perverse incentive doesn’t sit well with the sacred presumption of innocence.
“On behalf of our members we will continue to request the Lord Chancellor urgently review the charge and trust magistrates to use their experience and discretion in applying it. It is our belief that Mr Gove’s sense of reason will make this happen.”
A Ministry of Justice spokesperson said:
“It is right that convicted adult offenders who use our criminal courts should pay towards the cost of running them.
“The introduction of this charge makes it possible to recover some of the costs of the criminal courts from these offenders, therefore reducing the burden on taxpayers.
“Instalment payments can be set up if a defendant’s means do not allow prompt payment in full. This will allow offenders to pay the charge in affordable instalments.”
Further information
Alistair is Chairman of the Bar Council of England and Wales for 2015. Alistair was called to the Bar in 1983 and took Silk in 2000. Practising from Leeds, he is co-Head of Chambers at New Park Chambers.
They came into force on 13 April. In the first place, it seems an utterly extraordinary use of the power to introduce a measure by laying a Statutory Instrument to enact a change with such a great impact on our criminal courts and those who appear as defendants in them. Everyone who practises criminal law knows that defendants are not a homogenous group. They range from the truly dangerous and bad to those who have committed offences largely as a result of their dire social circumstances or their mental health problems. In addition, there is no uniformity of income either. To treat them all as one group, without conferring any discretion on the sentencer to alter the charge depending upon the financial and other circumstances of the defendant, seems ill-judged at best and vindictive at worst.
But there is a much wider concern here than even those initial thoughts suggest. Let’s first look at the figures. If you plead guilty to a summary offence in the Magistrates’ Court, you will be charged £150. After a trial of a summary offence, a guilty verdict will, in addition to any other penalty, result in a charge of £520. If you are convicted of an either-way offence at a magistrates’ court trial you will be charged £1,000. If you plead guilty in the Crown Court, you will be charged £900, while those convicted after a trial on indictment will have to pay £1,200.
The choice of whether you plead guilty to an offence should surely not be swayed in any way by concerns or worries about the financial consequences of that decision. If there is a risk that it might be, the integrity of our system is also at risk. It appears to proceed from a fallacy that, in all cases, it is obvious to the defendant whether he or she is guilty of the offence. In some cases, of course, that is the position. Most people know, or can infer from the evidence even if they have no recollection of the event, that they are guilty of domestic burglary if their fingerprint or a DNA match is found on a broken window, for example. But what about the case of ABH in which the defendant maintains that he is not guilty because he was acting in self-defence, an issue that is capable of more than one answer? It is surely to the advantage of society that such issues are tried by a jury or a magistrate so that society maintains the right balance between the application of lawful and unlawful force. Take another example in which the defendant maintains that his conduct was not dishonest. Again, this is a largely subjective assessment by the jury or magistrate. Isn’t it a strength of our system that such issues are decided by an impartial fact-finder in public? I think it is. Anything that puts in place an improper pressure on a defendant, in my view, damages the integrity of our system of justice.
In addition to all this, the choice of venue in which the case is to be heard, should not be influenced by concerns about the possibility of a higher court charge depending on the tribunal hearing the case.
As I have already said, there is a very high prevalence of mental health problems and social difficulties faced by criminal defendants. It seems to me to be utterly unfair, in any civilised society, to treat the mother, who has stolen food for her children because there has been some clerical error in her application for benefit payments, in the same way as a member of a professional shoplifting gang which has travelled around the country targeting high resale value electrical items, and whose whole modus operandi is to extract maximum benefit to themselves at the expense of society as a whole. Who will find it easier to pay the criminal court charge?
And what about the practical effects of all this? If one of the ideas of sentencing is to rehabilitate as well as to punish, how on earth is the indigent defendant going to be able to pay these charges? Isn’t the overwhelming likelihood of these charges that they will be tempted to commit further acquisitive crimes to pay the charge?
Many criminal practitioners will be aware of the woefully inadequate attempts to collect fines from convicted defendants. Past experience suggests that the costs of trying, very often unsuccessfully, to recover financial penalties from defendants have vastly outweighed the value of monies actually recovered. And, for all the reasons I have specified, many defendants will be the hardest people from whom to recover these charges with their chaotic styles of living and their unstable home lives.
The charging scheme is deeply flawed because defendants should be able to respond to the charges they face without being untrammeled by irrelevant considerations. In addition the scheme has the added disadvantage of a profound unfairness so completely out of kilter with a sense of social equity and compassion which, until recently at least, was so much a part of the national psyche. And that is compounded by the fact that, as the Coalition Government knew full well when they sneaked these measures under the wire, there are no votes in the rights of those facing criminal charges.
How critical it is, therefore, to our conception of a democracy, that controversial alterations to the fundamental structure of our judicial system are debated and discussed publicly before a final decision is taken, and how damaging it is to the very idea of a compassionate and fair society that such decisions are promulgated without debate of any kind.
And this was all done by a Coalition Government which was excoriated by the Public Accounts Committee for their failure to reflect on the effects of the cuts to legal aid wrought by LASPO. The same old mistakes appear to be being made time after time.
The magistracy are, by and large, a conservative group (with a small ‘c’). It says something very powerful that more than 50 of them have resigned in recent weeks in protest at having to impose these charges. The new Lord Chancellor has acknowledged ‘widespread concern’ about these charges and has promised to review them. These ill-conceived measures have no place in the pantheon of the law of England and Wales. For the sake of the reputation of our judicial system, both here and internationally, there is no room for delay. The charges should be abolished forthwith.
Contributor: Alistair McDonald
The Magistrates’ Association
Richard Monkhouse is National Chairman of the Magistrates’ Association, the independent charity representing magistrates in England and Wales. He explains his concerns:
“Our members are very concerned about the impact this mandatory charge is having in the courtroom, ranging from its influence on pleas to questions of fairness and proportionality. We’ve not seen this level of concern before. We conservatively estimate that there have been 50 resignations, but there may well be much, much more.
“Whilst it is the absolute duty of magistrates to apply the law, it’s also our duty as a charity to point out its consequences – and they’re of immense concern. For some defendants the choice is clear – plead guilty and swallow a smaller charge or run the risk by pleading innocent and potentially face a financially ruinous hit. This perverse incentive doesn’t sit well with the sacred presumption of innocence.
“On behalf of our members we will continue to request the Lord Chancellor urgently review the charge and trust magistrates to use their experience and discretion in applying it. It is our belief that Mr Gove’s sense of reason will make this happen.”
A Ministry of Justice spokesperson said:
“It is right that convicted adult offenders who use our criminal courts should pay towards the cost of running them.
“The introduction of this charge makes it possible to recover some of the costs of the criminal courts from these offenders, therefore reducing the burden on taxpayers.
“Instalment payments can be set up if a defendant’s means do not allow prompt payment in full. This will allow offenders to pay the charge in affordable instalments.”
Further information
In April, the Government introduced charges into the criminal courts. These charges have proved controversial and there are calls for an urgent review. The Chairman of the Bar, Alistair MacDonald QC, explains the profession’s concerns
One of the last acts of the Coalition Government was, without any sort of debate, to slip into legislation criminal court charges payable by defendants.
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