The unloved Criminal Court Charge is unfair in principle, and unworkable in practice. Time for a rethink!
(An earlier draft of this blog was published here on the Justice Gap Website.)
Introduced without consultation, debate or Parliamentary vote, it has by removing discretion created an inflexible system with sometimes draconian consequences that have offended justice to the extent that Magistrates have resigned over the issue.
The charge is applied even to defendants with no ability to pay- the homeless man fined for begging, the shoplifter stealing food to feed their children, the alcoholic street drinker for breaching an asbo, and the criminal without savings who has just received a lengthy prison term.
The principle – that criminals should pay toward the cost of the Courts that hear their cases as a result of their crime-can be justified (although it rather assumes that all crime is either a conscious decision or “lifestyle choice” rather than acts unplanned or arising from external circumstances or mental illness). But the replacement of discretionary costs awards, subject to means and the circumstances of the offence, with a fixed mandatory amount is risible, and have now been condemned by the Justice Committee. (Report, November 2015)
With a higher charge on conviction, It is an incentive to plead guilty irrespective of guilt, at least for the poor ( a banker on a motoring case who can afford to pay a “Mr Loophole” type lawyer privately in the hope of getting off may not worry about the CCC, a student in debt with a disputed drunk and disorderly charge may be worried about the costs if convicted after trial)
Why should the Charge go to “Court” costs, rather than eg Prosecution costs (still discretionary, and now often reduced to take into account the Court charge) or indeed the defence costs in Legal Aid cases? (1)
A New Approach
Let us scrap the Criminal Court Charge. Let us also scrap “contributions” toward prosecution costs, and the Victim Surcharge. (although for compensation, see note 2 below)
And -please- let us not introduce a “Defence Charge” (or any other new charges)
There should instead be one charge available to the Court.
Let us call it the ” Criminal Case Charge.” (3)
There can be a presumption in favour of an award being made, and it should be reduced for guilty pleas, but it must be discretionary, and take into account the means of the offender, and the nature of the sentence passed.
It can be punitive for the rich offender, eg the wealthy fraudster on dishonesty who has soaked up enormous costs in lengthy jury trials with little prospect of imprisonment if convicted.
It can be reduced or even waived for those imprisoned or with no means to pay.
The money could be divided between all the components of the Justice System. 94)
This would simplify the system, bring revenue into the Justice System from those who desrve to pay and can afford to pay, without penalising those undeserving or unable to pay.
It could actually bring Justice back into the Justice system.
Greg Foxsmith 26/11/2015
Notes
1 Currently on conviction (or guilty plea) the Court will be invited to make an award toward Prosecution costs, which when granted offsets their costs, wheras the legal aid costs (pitiful in comparison) receive no such award- and thus we hear the wailing about the “high” legal aid budget, which receives no share of the defendants “costs” awards when convicted, and no contribution from the Prosecution budget in cases which have collapsed or been discontinued but which should never have been brought.
2 The Courts should retain the power to award compensation, which should take precedence over the new charge, just as it does now (one of the unintended consequences of the Criminal Court Charge being that Magistrates compelled to make the charge have sometimes reduced compensation as a result)
3 Actually, you can call it what you like. The “Universal Charge”? The “Justice Levy”?
4 It could be eg 30% each to Court Service, Prosecution and Legal Aid budgets, with 10% to a Victim Service (Victim Support, Witness Care)