By Andrew Neilson
The Howard League for Penal Reform is delighted that, according to The Independent, the Ministry of Justice is looking seriously at reform of the misguided criminal courts charge. This came just a day after politics.co.uk published a piece in which we called for ministers to look again at this failing policy.
The burning question now is what should happen next?
Suspending the charge would be a good start. The Howard League has compiled a list of dozens of cases from across the country that shows the damaging consequences the policy has brought.
Take the case of the woman from Kidderminster "who had not eaten in days" but was ordered to pay more than £300 for stealing a 75p pack of Mars bars. Or the homeless woman in Coventry told to find £200 for begging in a car park. Or the frustration of the judge sitting at Exeter Crown Court, who was told he had no choice but to impose a £900 charge on a homeless shoplifter.
The argument for scrapping the charge is compelling. This policy’s only benefit has been to prompt more far-reaching questions about who we prosecute and why. It is now right to ask whether we should continue to pour public money into an antiquated courts system that effectively punishes poverty, mental illness and addiction.
The Howard League has been joined in opposing the charge by a host of other organisations, including the Bar Council, the Criminal Bar Association, the Law Society, Justice, the PCS and the Magistrates Association. The Independent has now had six front-page splashes on the charge. And Labour's Lord Beecham attacked the policy in this week's Lords debate – which ended in defeat for the government.
This united call for change has ensured that, in the words of the justice minister Lord Faulks, "the matter is very much on the agenda of the Ministry of Justice". Put in the simplest terms, there are three possibilities as to what will follow. Ministers could scrap the charge entirely, as the Howard League would like to see; they could introduce means-testing; or they could give sentencers more discretion.
The Magistrates Association has made clear that it wishes to see either means-testing of the charge, or preferably more discretion. Both these suggestions should be resisted.
Means-testing will not work for the simple reason that the vast majority of people going before the magistrates’ courts will not be able to pay. Indeed the charge would then disproportionately hit the middle classes – exactly the constituency most likely to cause the government more trouble again.
So what about giving sentencers discretion? Ordinarily the Howard League would support more discretion, but on this occasion we must disagree.
There are two major objections to introducing more discretion on the use of the charge. The first is one for the bean-counters at the Ministry of Justice: leaving decisions about the charge to individual magistrates would make it very difficult for them to project future earnings into the Ministry’s increasingly pressed budget. Given the charge and its earnings have been written into that budget, this would be problematic.
The second objection was eloquently expressed by Lord Faulks himself in the debate. As he put it, imposition of the charge "is purely about recovering costs. It is not a punishment and therefore should not be treated as part of the offender’s punishment in any way. Therefore, it would not be appropriate for a discretion to be exercised".
Lord Faulks also conceded a point made by Lord Ponsonby that judges and magistrates should not have a financial interest in the outcome of a case, saying:
"Judges and magistrates should not be able to choose whether to charge for the use of a court, as it were, and that it would therefore not be appropriate for there to be a discretion".
The Magistrates Association should understand these important points of law. The fear must be that the Association (which does not represent all magistrates, and should not be elided with the magistracy as a whole) is drawing the issue of the criminal courts charge into their broader call for more powers. This is something the Howard League has always opposed.
Whereas we've argued that magistrates' power to send people to custody needs to be curbed, the Magistrates Association has actively campaigned to increase the length of time that magistrates can send people to prison. This is despite the fact prisons are widely acknowledged to be violent, dangerous places which all too often, in the words of Michael Gove, represent "failure".
The Howard League has always taken an interest in the Magistrates Association – it is, after all, an organisation we helped to found as a "vanguard organisation for the liberal and progressive members of the magistracy". But on what happens next to the criminal courts charge, they are wrong.
Andrew Neilson is Director of Campaigns at the Howard League for Penal Reform
The opinions in Politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.