Unjust and Expensive

Frederick Wilmot-Smith

Ronald Dworkin once said that a judge faced with an unjust law ‘would have to consider whether he should actually enforce’ it ‘or whether he should lie and say that this was not the law after all, or whether he should resign’. Faced with the criminal courts charge, introduced in April, magistrates have taken all three options.

The government’s policy is that ‘convicted adult offenders who use our criminal courts should pay towards the cost of running them’. Those who plead guilty pay £150; those who protest their innocence but are found guilty face a charge of up to £1200. There are obvious problems with this. First, courts have a financial incentive to find an accused person guilty. Second, the risk of the charge is a substantial inducement for the innocent to plead guilty. Anecdotal evidence suggests that this is happening; it would be surprising if it were not. Third, the charge, which isn’t means-tested, is especially punitive on the poor. Louise Sewell, who had not eaten for two days, stole Mars bars worth 75p. After pleading guilty to theft, she was left with a bill of £150 for her use of the court.

Some magistrates have enforced the law. Others have ignored or done their utmost to avoid it, by giving convicts an ‘absolute discharge’, meting out no punishment; the convict then escapes the charge. And others – at least fifty but perhaps as many as a hundred – have resigned. Judicial protest on this scale is unprecedented.

Revenues have been slender. The government estimated that the charge would bring in £95 million per annum; this year less than £300,000 has been collected. The scheme may even generate a net loss. The impact assessment budgeted £20 million a year to enforce the charge, £1.5 million for administrative costs and £5 million for ‘additional prison places for those who default on paying the charge’.

Last night, Lord Beecham tabled a motion of regret in the House of Lords. It carried by 132 votes to 100, meaning the government must respond. The Independent, which led the campaign against the fees, has reported that the charge is likely to be scrapped. But an MoJ spokesman told the Law Gazette that the Independent’s reports are ‘speculation and nothing has changed’.


  • 16 October 2015 at 4:38am
    farthington says:
    The principle just needs to be applied to corporations pursuing litigation.
    Corruption within the corporate sector being endemic, the revnue generated would be enormous.

    • 16 October 2015 at 9:38am
      Rikkeh says: @ farthington
      Wait, what?

      Court fees are already large for large commercial claims. The "loser pays the winners' costs" principle means that there's a strong incentive not to advance futile claims and the Part 36 offer mechanism means that you're penalised hugely if you don't accept an offer and fail to better it.

      You appear to be battling imaginary demons.

    • 16 October 2015 at 3:22pm
      stockwelljonny says: @ Rikkeh
      So far as I am aware the court fee applied to civil claims does not vary according to whether or not a claim is successful or not. You are talking about paying the other sides legal costs which is a different point I think. Civil court fees have increased very significantly which is another issue, but I don't think there is currently provision for uplift if you lose, which is what the original post was about.

    • 16 October 2015 at 10:13pm
      Rikkeh says: @ stockwelljonny
      Court fees are payable in any event but are recoverable from the loser through the loser pays principle. So from the point of view of the payer, they do vary depending on whether or not a claim is successful.

  • 16 October 2015 at 8:00am
    cufflink says:
    Just one more deracinated ethical distortion by this heartless administration. It totally lacks any sympathetic discretion that is traditionally implied in our dignified magistracy. To be poor now is to be denied the protection or indeed the welfare concern of justice. Our only safeguard against these procrustean ministerial orders, that are advised we can now clearly see by an ethos of pinch-penny narrow minded gradgrind economy. It is a call to our professional bodies in their valued wisdom to oppose such procedures where the larger commonsense of experienced understanding should be applied. Government can indeed be all too easily small-minded Government. Yes we must take in all the revenue due from all sources, but farthington points the necessary way.

  • 17 October 2015 at 5:53pm
    streetsj says:
    FW-S spot on. One can see the attraction of applying a polluter pays principle to the magistrates court but to have no means testing (or judicial discretion) is bizarre. Even then the inappropriate pressure to plead guilty and the theoretical conflict/incentive the magistrates have should have meant this proposal was ditched after the first brainstorm.

  • 20 October 2015 at 4:30pm
    jimmaloney says:
    I retired as a magistrate in 2008 - at 70 your licence is withdrawn by the Lord Chancellor - but I still seethe at the actions of this government in their treatment of criminal justice. I understand why magistrates have resigned; perhaps if sufficient numbers were to do so then Gove would have to think again - 97% of all criminal matters are dealt with in Magistrates' courts. Anecdotal evidence is strong that those charged are pleading guilty to reduce the cost. I note that the Lord Chief Justice, Lord Justice Thomas, has suggested that financial charges of this kind breach fundamental principles of the administration of the law. But for The Daily Mail readers of this world - and how many there are -this comment and Thomas LCJ's remarks will be so much whining from the bleeding hearts brigade. I do hope Jeremy Beecham's Lords' motion has some beneficial effect, but I doubt it.

  • 20 October 2015 at 5:13pm
    John Cowan says:
    One shudders to think what fees will soon be imposed for a successful defense against a false criminal charge. After all, the cost of paying prosecution witnesses to perjure themselves, even if the courts do not believe them, has to be recouped somehow.

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