Unjust and Expensive
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’.