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Koestler awards, Ariane Bankes Outstanding Award for Oil 2008

The Criminal Court Charges slipped into the statute book in April 2015 with surprisingly little comment from the liberal reform lobby. Now, upon conviction almost all adult offenders face a charge to cover court costs: in the magistrates’ courts, £150 or £180 for a guilty plea (depending on offence type) and £520 for a trial; and in the Crown Court, £900 for a guilty plea and £1,200 for a trial.

The principle of charging defendants for various costs, such as those of the Crown Prosecution Service, is well established, deriving from the Prosecution of Offences Act, 1985. However, this legislation gives courts the power to impose costs, rather than a duty, and practice directions to sentencers (for example in 2014) make it clear that: ‘An order should be made where the court is satisfied that the defendant or appellant has the means and the ability to pay. The order is not intended to be in the nature of a penalty… .’  This seemed a reasonable sort of arrangement to ensure that costs were fairly distributed, giving enough discretion to the courts to ensure that justice was served.

The new charges are mandatory and sentencers must disregard ability to pay and the impact of the charge when passing sentence. (According to the MoJ factsheet on the charges: ‘The court will not be able to take the charge into account when they decide on the appropriate sentence.’) Defendants can pay off their debt in instalment, however, and the fines officer of the court can remit the fine (ie write it off) after a year if the defendant has complied with the conditions of repayment. Defendants themselves can apply for remission after two years.

The charges are high – and place a trial in the Crown Court well beyond the reach of most defendants, especially when they also have to pay a mandatory victim surcharge ranging between £20 and £120. (This surcharge, introduced at a flat rate of £15 in 2007, was ratcheted up to its current levels in 2012.) Leaving the considerable issues of affordability aside, the new charges create an objectionable incentive for offenders to enter a guilty plea even when they are innocent – the difference in costs between an uncontested case in the lower courts and a Crown Court trial being £1,050. Crown Court trials will become the territory of the affluent defendant, and of those who face a long sentence upon conviction, and have little to lose in contesting the case.

Right to a fair trial
Although the government lawyers must have crawled over case law covering the European Convention of Human Rights, article six these charges don’t appear to me to be guaranteeing the right to a fair trial – as the right exists only so long as you can pay for it. Apologists for the charges will doubtless say that payment is in arrears and in instalments, but that is hardly convincing. The fact that the charge is mandatory, with no judicial discretion to waive it, is the feature that may render it liable to challenge.

The charges will be seen by most defendants as arbitrary, onerous and basically unfair. They will create a ‘legitimacy deficit’ in the system, which will be sensed most keenly by those whose commitment to the rule of law is most tentative. It pushes our justice system one step closer to that in American cities, where the courts relentlessly raise revenue from the urban poor for not only serious crimes but for minor regulatory offences. In time, too, as more of the ‘respectable middle classes’ are required to stump up these fees – for motoring offences that they wish to challenge, for example, or for regulatory offences in connection with their businesses – dissatisfaction will spread.

Leaving aside the question of basic fairness, the system is likely to prove rapidly unworkable. The people who appear before the criminal courts are very largely drawn from the poor and the socially marginalised. Offenders pleading guilty to less serious crimes in the lower courts may be able to pay their £150 – albeit in instalments – assuming that they are sentenced to a community penalty, rather than a fine. If the charge (plus the victim surcharge) is simply added to a fine, the risk of non-payment – and eventual imprisonment for breach – is compounded.

The government plans to review the charging regime in 2018. It is to be hoped that they should do so much sooner. In my view, the costs in terms of damage to legitimacy will outweigh both the financial benefits accruing to the Treasury, and any – somewhat improbable – rehabilitative benefits for offenders that flow from them being held to account for their court costs. The House of Commons’ Justice Select Committee is currently reviewing the system, and it will be interesting to hear what they make of it.