Law students, this post is for you. Consider it a legal awareness story, and an example of how politics and the legal sphere interact.
There comes a time when even the most stubborn politician must come to the realisation that an unpopular policy has to be halted. And so it finally proved to be the case this Thursday the 3rd December, when one Lord Chancellor and Justice Secretary, Michael Gove, announced his intent to repeal the criminal courts charge.
The criminal courts charge, which had been a brainwave from the former Justice Secretary Chris Grayling and introduced this year, had attracted much criticism and considered both unpopular and controversial. The charge imposed a financial burden on convicted defendants, forcing them to pay the ‘relevant court costs’ for their court case – this may range from between £150, to £1,200 to cover the cost of the court proceedings. Once the defendant was found guilty, or submitted a plea of guilty, the charge was to be imposed. This was regardless of how minor the offence was. Moreover, the charge did not take into account the financial circumstances of the convicted defendants.
Judges and magistrates did not have the discretion to determine whether or not to impose the charge. This was unusual, as generally magistrates do have discretion over the fines they impose, and the orders they make to compensate victims or impose contributions towards prosecution costs. Yet the minimum £150 court charge was a universal penalty, which magistrates could not wave. Unsurprisingly, many often spoke out against the charge and expressed regret they could not refuse from imposing the charge. The extent of the opposition was revealed in a poll conducted by the Magistrates’ Association. Whilst only a minority, some 42 percent, thought the court charge should be scrapped altogether, 93 percent polled thought the £150 charge was ‘not reasonable or proportionate’, and 84 percent thought it ‘should be means tested’.
There was also the case of Magistrate Nigel Allcoat, who assisted in the payment of the mandatory charge on behalf of an asylum seeker, was suspended for his actions, and later resigned. Mr Allcoat spoke of the hopelessness of the situation, asking how could this asylum seeker pay the mandatory charge, when he was not permitted to work.
In response to the incident, a spokesperson for the Ministry of Justice stated:
“It is right that convicted adult offenders who use our criminal courts should pay towards the cost of running them.
‘The legislation and guidelines to magistrates and judges make it crystal clear that the charge is separate to the sentence and should not be considered as a mitigating factor….”
Perhaps it is not a bad principle to argue that some of the cost of court proceedings should be transferred to the offender from the taxpayer, at least in theory. Yet in practice, the persistent continuation of the court charge did not keep into account that many of those who were summoned to the magistrates court are from deprived areas. Ordering these people to pay at least £150 is already demanding £150 too much.
Furthermore, an unintended (unforeseen?) consequence of the court charge was that victims who ought to be compensated were unlikely to receive due compensation, simply because the court charge is all that an offender can reasonably be ordered to pay.
Any wonder, then, that the Justice Committee called upon the government to abolish the charges, questioning whether the charges ran contrary to ‘principles of justice’. In the Justice Committee’s report, it was submitted that the charge created ‘serious problems’ and was often ‘grossly disproportionate’. It was also argued (and I point I wholeheartedly agree with) the existence of the court charge created ‘perverse incentives’, in the sense that not only may those passing sentence could reduce compensation and prosecution, but also place pressure on defendants to plead guilty in order to avoid having to pay an increased court charge. Finally, the report also criticised the lack of discretion afforded to judges and magistrates, arguing this was creating ‘unacceptable consequences within the criminal justice system’.
The report was not before time. The charge was simply ineffective and unjust in practice. More than eight out of 10 of people who appear in magistrates’ courts are on benefits, further increasingly the likelihood that the fines just could not be paid. This was evident not only in the previously mentioned case involving magistrate Nigel Allcoat, but also the ‘Mars Bars’ case. This involved a lady who stole a four-pack of Mars Bars worth 75p. She claimed she had not eaten in days, after her benefits had been sanctioned. After pleading guilty to the theft, she was ordered to pay a £150 criminal courts charge on top of her £73 fine, £85 costs, a £20 victim surcharge and 75p compensation.
Thus I was pleased to read the news this past Thursday. Michael Gove sought to rectify two causes for concern; he did not only abolish the mandatory criminal courts charge, but promised that judges and magistrates will be given greater discretion in imposing financial penalties. He announced the abolishment of the charge in an address to the annual meeting of the Magistrates Association, before the written ministerial statement was issued.
“The basic principle behind the policy – that those who have broken the law should bear some of the costs of running the criminal courts – is right…However, as the justice select committee set out in its recent report, there have been concerns raised about how this has worked in practice.”
“It was introduced for the best of reasons: to ensure that those who impose costs on the criminal justice system make a contribution to those costs wherever possible.
“But it has become clear that while the intention behind the policy was honourable, in reality that intent has fallen short. Whenever I have had the opportunity to talk to magistrates over the last six months, the criminal courts charge has been raised and in almost every case it has been criticised … I would like to give the judiciary – including, of course, the magistracy – greater discretion in setting financial orders.”
The Magistrates’ Association’s national chairman, Malcolm Richardson said that was ‘an enormous success for the MA (Magistrates’ Association) but most importantly for justice in our criminal courts system.’ He went on to state that in his 26 years as a magistrate, he had ‘never seen such a powerful reaction from my colleagues on the bench’, highlighting the widespread unpopularity of the charge.
The Howard League for Penal Reform, which had campaigned against the charge, calling it ‘simply unfair’, welcomed the news on Thursday. Its chief executive, Frances Crook said:
“This is a victory for justice. It augurs well for changes being made to the courts and penal systems, which both need radical reform.”
So, there we have it. Proof that sometimes, widespread criticism and unpopularity can have an effect on the government, resulting in its scrapping of an unpopular measure, or policy.
A pity, however, that this charge was still allowed to continue for such a time this year. I feel that in allowing the criminal courts charge to be introduced in the first place, the government via then-Justice Secretary Chris Grayling showed a lack of understanding and empathy with the public. They did not seem to consider the fact that many who appear in front of magistrates are from the poorest areas. The Justice Secretary did not appear to consider the ramifications of imposing such a charge on those who would not have the funds available to pay.
According to the Justice Secretary, as of the 24th December this criminal courts charge will no longer be imposed, meaning that naturally there will still be people who will have to pay this charge. I can only hope that there will be no repeat cases such as those described above.