20 November 2015
Originally published in The Barrister
John van der Luit-Drummond
The controversial criminal courts charge has been slammed by MPs as ‘grossly disproportionate’ and should be abolished as soon as possible.
In a damning report released today, the Justice Committee has concluded that the charge fetters judicial discretion and has created a perverse incentive for defendants to plead guilty.
The criminal courts charge was introduced by the former justice secretary Chris Grayling by way of a statutory instrument just before the last parliament was dissolved, allowing little time for parliamentary debate.
Since April, magistrates and judges have been required to impose the mandatory charge of up to £1,200 on those convicted of offences, in addition to fines, compensation orders, victim surcharges, and costs, regardless of an individual’s financial circumstances.
The government expected to raise £265m in charges over the course of this parliament in an attempt to make the courts pay for themselves.
The Lord Chancellor, Michael Gove, acknowledged earlier this month that the levy was ‘a cause of concern’ in the House of Commons and confirmed that the Ministry of Justice was ‘reviewing the operation of the charge’.
If the government chooses not to scrap the charge, the Justice Committee has recommended radically reducing the amount levied on defendants and giving discretion to the courts on whether to impose it.
The chairman of the committee, Bob Neill MP, observed that the charge had created a range of serious problems and benefited no one.
‘We would urge Michael Gove to act on our main recommendation and abolish it as soon as possible,’ said Neill. ‘The evidence we have received has prompted grave misgivings about the operation of the charge and whether, as currently framed, it is compatible with the principles of justice.’
He continued: ‘In many cases it is grossly disproportionate, it fetters judicial discretion, and creates perverse incentives – not only for defendants to plead guilty but for sentencers to reduce awards of compensation and prosecution costs.’
The Law Society’s president, Jonathan Smithers, welcomed the committee’s recommendation adding that the ‘unjust charge’ had created an incentive for defendants to plead guilty.
‘Those accused of wrongdoing are very often amongst the poorest and most vulnerable in society, yet courts have no discretion as to whether to apply this charge as the court is not able to take into account the defendant’s circumstances,’ he said.
‘We agree with the Justice Committee’s recommendation that if the charge is not abolished, judges should be given a “double discretion” to decide whether to impose the charge and the amount,’ he continued. ‘It is pointless and costly pursuing criminal court charges from people who cannot afford to pay.’
Speaking earlier this week, Alistair MacDonald QC, chairman of the Bar Council, said it was clear that the charge did not enjoy popular support.
‘Members from both houses and from across all political parties are making the case for it to be reformed,’ he remarked. ‘Magistrates have resigned in record numbers and media campaigns indicate opposition is strong and widely felt.’
‘Defendants who are innocent may have little choice but to plead guilty simply to avoid court fees of up to £1,200 if they are convicted after a not guilty plea,’ continued MacDonald. ‘No one should be influenced by a court charge in making their decision about whether to plead guilty or have a trial.’
MacDonald also questioned why, with the November spending review imminent, there was as yet no data available on how much money had been recovered through use of the charge.
‘The Bar Council calls on the MoJ to publish the relevant statistics as soon as possible in order to inform a review of criminal courts charges policy,’ he said.
Giving evidence to the committee in October, Penelope Gibbs of Transform Justice underlined the false economy of the criminal courts charge, saying: ‘For every guilty plea there is a sentence that has to be paid by the state. There is no impact assessment for how much the state will have to pay if more plead guilty.’
Phil Bowen, director at the Centre for Justice Innovation, also questioned the use of the charge as a source of revenue for the courts, commenting: ‘We don’t ask for the accused to pay for their arrest or prison place.’
‘Clearly people are pleading guilty to avoid the cost,’ he continued. ‘This feels like the start of a plea bargaining system.’
Also giving evidence, Frances Crook, chief executive of the Howard League for Penal Reform, said the charge ‘needs to go’.
‘You have people with chaotic lives who cannot comply with it,’ she remarked. ‘They are going to go to prison and still have this hanging over their heads. We need to suspend it immediately and work out how to abolish it.’