Grayling's court charge forces magistrates to punish the poor - it's time for reform

By Andrew Neilson

Forget restricting books for prisoners, designing giant prisons for children or selling ‘expertise’ to the beheaders and floggers of Saudi Arabia. This afternoon the House of Lords will debate Chris Grayling’s final, and arguably, most controversial legacy: the criminal courts charge – a fixed and mandatory fee which applies to every person who pleads guilty or is convicted of any offence. Since its introduction in April 2015, the charge has received widespread criticism for being unfair, unrealistic and unjust. The Howard League has been running a campaign calling for the immediate suspension of the charge, pending an imminent review.

The criminal courts charge may be misguided and wrong but it has done at least one service, in raising fundamental and far-reaching questions about who is being brought before the courts and why.

Everyone should spend a couple of hours in the public gallery of a magistrates’ court from time to time. If you do, you will learn a lot about the problems in your local community and the numerous, underfunded agencies that are attempting to respond to them. This is how staff from the Howard League spent yesterday morning.

The vast majority of defendants coming before the courts are suffering from addiction, poverty or mental ill-health – very often they suffer from all three. On occasions the charges before them are so trivial - and additional obstacles created by a new conviction so large - that you wonder who could have possibly decided it was sensible to charge and bring them to court.

Magistrates’ courts are chaotic and slow. They are frequently delayed due to missing pieces of paper, uncompleted assessments, omitted evidence and prisons not sending the right prisoner to the right court at the right time. This week, the court apologised after a man being held on remand in Pentonville had been escorted to court by Serco custody officers despite having no case to attend. Brixton prison had sent a man to Westminster Court even though his case was due to go ahead in Highbury.

Probation staff constantly hurry in and out of the courts trying to complete assessments and make sure magistrates and lawyers have the right reports for the right people. Duty solicitors run in and out of courts, meeting clients for the first time and appearing to defend them, sometimes minutes later. It quickly becomes clear that these courts desperately need fewer people appearing before them, more resources and better technology.

They also need more flexibility. When a case is finally heard and sentencing issues are considered, the majority of magistrates and district judges try their hardest to come up with a sentence that is suitable, fair and realistic. This job is made incredibly difficult by the numerous fines, charges and costs orders that must now be applied. The most expensive and least flexible of all of these is the criminal courts charge.

Whichever civil servant designed the criminal courts charge has clearly not spent very much time in a court. A few hours is all that is needed to see that the charge leads to sentences that are far from suitable, fair or realistic.

For example, the court heard the lawyer of a young man who had stolen a bottle of gin from a shop explain to the court that her client had lost his job as a delivery driver after a road traffic accident in which he had broken his neck. Since he had been out of work his debts had spiralled and he suffered from severe depression and alcohol abuse. His ill health was such that he struggled to leave the house and attending court was a huge achievement for him. His mental health had deteriorated due to stress and anxiety about his financial situation. He was deeply remorseful for stealing the bottle of gin. His lawyer argued that he was too unwell to complete a community order and asked the district judge to conditionally discharge him for 12 months. The judge agreed with the lawyer and granted the conditional discharge.

Both the lawyer and the defendant appeared relieved until the judge read out the costs: £57 compensation to the shop; £85 crown prosecution costs; £15 victim surcharge and £150 criminal courts charge. The judge accepted that the young man could not pay the fine on the day and agreed for him to pay the minimum amount of £10 every fortnight. It was clear to everyone in the room that it was unlikely that the costs would ever be paid in full, but it would certainly create more distress.

Next door in court three, magistrates heard case after case which questioned why many of these people had been charged and brought to court in the first place. Halfway through the morning session a man who had severe learning disabilities was in the dock, visibly shaking, next to his sister, who was acting as his appropriate adult. He was appearing for a minor public order offence; he had no pre-convictions. He was unable to give his surname or address, and, when asked to confirm his date of birth responded “Virgo”. The magistrates agreed to an eight week adjournment in order for a psychologist to assess his fitness to plead. After asking the presiding magistrate if he was “on TV” as she tried to explain what was happening he left the court saying “you’re very nice, thank you very much, I was so scared”.

The same magistrate used her discretion twice in one morning to wipe all additional costs, including the criminal court charge, by off-setting them against time served in the cells. Such compassion should be applauded. Justice cannot be done, or be seen to be done, however, if magistrates are in a position that they have to circumnavigate the system to stop injustices being imposed. If a defendant isn’t remanded in custody or held in a police cell they appear to have no option but order that the charge be paid. It is unsurprising that some magistrates are resigning in protest at the charge.

Today’s House of Lords debate will undoubtedly raise further criticism of the criminal courts charge. The more fundamental question that we need to ask is whether we should continue pouring public money into an antiquated system which ineffectually punishes poverty, mental illness and addiction. The time has come for radical reform.

Andrew Neilson is director of campaigns at the Howard League for Penal Reform