One size rarely fits all: Why the criminal courts charge had to go

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February 4, 2016 | By Michael Devlin |

February 4, 2016 | By Michael Devlin |

On Christmas Eve 2015 the Lord Chancellor abolished the criminal courts charge. The charge, a mandatory payment of between £150 and £1,200 imposed on all convicted defendants towards the cost of their court case, has universally been recognised as a grossly unfair and undesirable policy.

Magistrates who’ve had to impose these charges upon all guilty defendants have been particularly vocal in criticising this charge. The reason for the bulk of the criticism is simple – there was NO discretion granted for the people imposing the charge. No choice as to how much to charge. No choice as to who should be charged. This highlighted that when discretion is removed from judges and magistrates there is always a real danger of injustice within the justice system.

Take this fictitious but not unlikely case. Alan, a history mental illness, exacerbated by bankruptcy, home repossessed, divorced and homeless. Alan isn’t receiving benefits because, due to mental illness and a general chaos in his life, he missed an appointment at the job centre. He then steals some food from a shop. He does this to eat as he is hungry, not to sell the food for money. Alan then pleads guilty and the court imposes a community order with a mental health treatment requirement. This is because he needs help – to make reoffending less likely and benefit the community as a whole. Yet, just after announcing this compassionate sentence, the judge says “just to help you on your way, I have to give you a £150 debt because that won’t exacerbate the debt related depression you’ve been suffering with!”

The next defendant in court is a millionaire sports star. He spat on a traffic warden for having the temerity to stick a ticket on his brand new Aston Martin. He can pay £150 too.

In truth, it was not so much the fact that rich and poor had to pay the same– the problem was having to charge in those cases where it was clearly counterproductive and ultimately against any sense of fairness or justice.

There was also the fear that people would be inclined to plead guilty, not because they were guilty but because they may not be able to face a £900 charge. A guilty plea could in some cases result in a penalty that is minor and nothing like as devastating to them as a £900 bill. Take the person who denies the minor act of public disorder. If they plead guilty they may get a conditional discharge and the £150 charge. Plead not guilty and there is always a risk you may lose the trial. Lose the trial and you risk a massive court bill. To some people that is a risk not worth taking, whether they are guilty or not.

But what are the wider implications for the justice system?

These arguments have been widely explored of late and, as we now see, these arguments have at last been listened to. There is a wider issue however that is raised by this whole episode. It is that any government should think long and hard before interfering with the discretion of those people who are responsible for delivering justice.

It is clearly desirable for there to be consistency throughout the justice system. Whilst some have bemoaned the way in which they feel Sentencing Guidelines have restricted the discretion of the Judiciary, we still hear Judges saying these are “guidelines, not a straitjacket”. There is still a degree of flexibility to complement the increased consistency of sentencing.

Discretion vs. Consistency

An example such as the recent introduction of a minimum sentence for certain knife crimes is perhaps more problematic. In such cases the courts could well be required to imprison someone, where there individual facts of the case and the demands of natural justice suggest it is just wrong. This because of the lack of discretion.

It’s clear why governments have at times been attracted to restricting the discretion of the courts. In the case of the courts charge it was because it was easy. The government needs more money. The criminals are at fault. Here are some numbers which mean we will get more money out of the people at fault – simples!

In other cases, governments are keen to show that they are tough on crime. Stories in the press of maverick judges, giving “soft” sentences, can undermine this tough image that they seek to project. Take the discretion away from those “out of touch”, “bleeding heart” judges and that then proves how tough they are.

Clearly there is a degree of simplification in the above analysis, but nonetheless more than a kernel of truth. The demise of the criminal courts charge has demonstrated that within the criminal justice system, one size rarely fits all. If you want to try and make it so – you at least need to try and do it with a bit more intelligence and a lot more thought. You may even want to do it in consultation with the people working in the criminal justice system trying to administer it!

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.

Michael Devlin

Michael is a Solicitor Advocate and heads up our Criminal Law team at our Leeds office. He has a particular interest in representing mentally disordered offenders and as a former member of the Solicitors Regulation Authority’s Mental Health Review Tribunal panel has a great deal of experience in this area. Michael's profile

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