Oral evidence: Courts and tribunals fees and charges, HC 396Tuesday 27 October 2015
Oral evidence, 27 October 2015.
Witnesses
Richard Monkhouse, Chairman, Magistrates Association, and Malcolm Richardson, Deputy Chairman, Magistrates Association, gave evidence.
Chair
Mr Monkhouse and Mr Richardson, welcome. Thank you very much for coming to give evidence before us on behalf of the Magistrates Association. We have seen the written evidence that you have already submitted, which largely speaks for itself and is quite clear. My colleagues and I have also seen the survey that has been put forward. Mr Monkhouse, you criticised the charge as tokenistic, among other things, and talked about a certain number of magistrates resigning, but I gather that the association as a whole prefers not to take a position on the principle of the charge.
Richard Monkhouse
This is true.
Chair
Can you help us as to why?
Richard Monkhouse
It is not our job. It is the Government’s and Parliament’s job to decide how to fund the Courts Service. We leave it to them. Our complaints—our objections, if you like—are about the impact and the proportionality, not just in terms of ability to pay but in terms of levels of charge for particular types of offence, or particular types of case, which seems strange. As you know, in our sentencing process we follow guidelines, as we must. Everything in those looks to an ability to pay. This adds to that, without any discretion whatsoever to allow for the fact that many people cannot pay. To give you an anecdote to start with, when we were sitting in court about two months ago, the person in front of us was already paying off to the court at a rate of £5 a week. His current charge would take him 13 and a half years to pay. Adding on to that seemed to us nonsense, but it is what we had to do.
Chair
It has been said that this is not part of the sentencing process, because it is mandatory. Funnily enough, as the chairman of the Criminal Justice Board says, you can come back at some point—in about two and half years—to try to get things written off. Does it work in that way in practice, or is that a very artificial distinction?
Richard Monkhouse
It is about understanding reoffending. Reoffending is binary. It is not frequency-based. If you have somebody who is a regular shoplifter and is committing 20 or 30 offences a year, the expectation of that person suddenly stopping because a criminal court charge is placed on them is a bit of a nonsense. There may be a step change, in that the person may offend once in the next 12 months. That is progress, but it is not recognised in the whole aspect of the criminal courts charge.
Chair
Mr Richardson, do you have any thoughts on that?
Malcolm Richardson
I come back to your comment about whether or not the courts charge is part of the sentence. Of course, it is required that the court should announce it, include it in the total financial imposition and then work out what the payment rate needs to be. In that sense, it is part of the sentence. You are quite right that they can come back to court if they have made regular payments. We have already heard about chaotic lives and so on, which are typical of many of the people who are seen before magistrates courts in particular. It looks very much like part of the sentence to me, but you are quite right to say that there is no discretion over it. That is at the heart of the objections from many magistrates, as you will have seen from our survey.
Chair
Indeed.
Alex Chalk
None the less, there remains discretion among magistrates to impose the period over which it should be paid. Does that afford you a level of discretion? Suppose, for the sake of argument, that you are able to say, “You have a fine of £5 a week. Your courts charge will be another £5 per week, and we will review the position in two years.” If I may play devil’s advocate for a second, does that give you an element of discretion?
Richard Monkhouse
That is not actually the way it works. The total financial imposition is made. The people in front of us do not split it up into what is compensation, what is CPS costs, what is the fine and what is the criminal courts charge—they simply say, “What’s the total amount?” If we are taking payment through benefits, we do not make that charge. That is sent over—
Alex Chalk
But you can impose affordable payment terms. You are entitled to do that within your discretion.
Richard Monkhouse
Yes, but it is the total amount.
Alex Chalk
You are aware that you have that power.
Richard Monkhouse
Yes. We are looking at the total amount. We do not split it up. That has never been the practice.
Alex Chalk
Sure, but it is a slightly different point. I am not suggesting that you split it up. If you have discretion about the terms upon which you can require it to be paid, do you recognise, first, that that affords you an element of discretion? The question then is, does it give you enough discretion?
Malcolm Richardson
I am not sure whether I would necessarily describe it as discretion. Yes of course, you have a total amount of financial imposition and you can order the rate at which it will be paid, taking into account the circumstances of the individual in front of you. In that sense, yes, there is some discretion. The question, under all the guidance we are given about that, is that the period over which we ought to expect to recover that amount becomes too long if you add an additional minimum of £150 and upwards, as you know at least as well as I do, in terms of the numbers. That period gets inappropriate.
Alex Chalk
You have biblical periods over which they are expected to pay £5 a week.
Malcolm Richardson
Yes. Again, we are not talking a lot about people who are familiar with the concept of a 25 or 30-year mortgage that they are paying off. We are talking about people who have chaotic lives and are lucky to get from one benefit payment to the next without having to go to a loan shark. That is an anecdotal comment. I am not attempting to suggest that it is evidentially based, but seeing the defendants we see in court week after week, there is plenty of evidence of that before us.
Alex Chalk
I have one follow-up point. As magistrates, when you sentence someone, say for shoplifting, there might be a fine, you might have to consider the victim surcharge and you might have to consider the prosecution costs as well. Would you welcome the discretion to decide whether to impose in addition a court charge if, for the sake of argument, you had an extremely affluent defendant, or would the magistrates say, “We do not want to impose this at all. If we want to load costs on to an individual, we can do that via the prosecution costs.”? Do you see the distinction? Do you want the discretion to impose it in appropriate circumstances or are you not interested in any circumstances?
Malcolm Richardson
The position we have taken is that we do not take a position on the principle of the criminal courts charge. We certainly would not stand in the way of anyone who wanted to abolish it. Given the position we are currently in, yes, we would say that we should have the same discretion about this charge as we have around prosecution costs. The first and foremost consideration when there is a crime that has a victim, whether that is the shop from which something has been lifted or an individual against whom there has been an assault, is that that should come top of our list. Once we have ordered that, we have discretion about whether we order the Government surcharge—as you correctly say, it used to be called the victim surcharge; victim has somehow disappeared from the title and it has become the Government surcharge—if we have ordered compensation. We have discretion as to how much of a contribution towards CPS costs we order. There is no such discretion with the criminal courts charge.
Alberto Costa
I find it slightly strange that the Magistrates Association is not adopting a viewpoint in principle on this matter, given the strong feeling that your own members have expressed through the media. Have any magistrates resigned directly as a result of the introduction of this charge? If so, how many, in terms of the percentage of magistrates? How have the remaining magistrates expressed to the association their disquiet about these charges? I should add that, as a Conservative MP, I am familiar with a number of magistrates, one of whom is my political agent. Perhaps I should declare that as an interest. I am really interested in hearing what magistrates think about this, and you are their association. How many have resigned in protest about this?
Richard Monkhouse
We do not have exact numbers. We know that it is certainly in excess of 50. As chairman, I get a lot of e-mails and letters from magistrates who have specifically quoted this, maybe not as the only reason, but as the final straw in a number of reasons. There are some who said, “No, this is it. I cannot bring myself to do this.” We are in a difficult position, because we are judicial office holders. If Malcolm or I appear in the press saying, “This is a stupid charge. It shouldn’t be awarded,” and the following day sit in court and have to deliver it; that is moving us away from what we are there to do. We are there as magistrates and judicial office holders. We have to follow guidelines. The Government have said that we must follow guidelines. That is the difficult position. We may individually have personal views, but as an association we have to represent the majority of our members. The majority say that in principle they are okay with it. It is a 56% majority, so it is not huge, but it is still a majority. Even if it were the other way round, we would still say, “This is not really something we should be involved with, because we have to sit in a courtroom and deliver these charges.” A number of people have written to me personally and said, “I cannot do this.” It is a bit like the poll tax and other charges in the past where they disagreed in principle and could not do it. That is their fundamental right. I wish that they did not, because it is much easier to argue the case and talk about it from within, rather than to walk away and have nothing else to do with it. That is all we have been doing ever since the Bill was talked about over 12 months ago.
Malcolm Richardson
Richard and I travel the country visiting our members in their branches, and it is the first topic of any conversation that you have. I shall be visiting your constituency next month—
Alberto Costa
I look forward to that.
Malcolm Richardson
I know that the first topic of conversation when I meet my members in Leicestershire will be the criminal courts charge and “What are we doing?” Hopefully, most of our members know what we are doing, and are aware that we are here and know about all the other work that we have done in order to bring their views to the attention of those who can make a difference.
Chair
I do not want it to be thought that Members of Parliament from other political parties do not have contacts with the magistracy, I hasten to add. On that note, Mr Hanson.
Mr Hanson
You are not collating figures, but you have anecdotal evidence. Are you aware that anybody is collating figures? Is the MOJ collating figures on magistrates who have gone because of the charge?
Richard Monkhouse
Figures for resignations are collated on a regular basis, but there is no exit survey to ask the reason. We would find out only from those who specifically said, “I am going because—”. That is the only way we can gauge it. Certainly, we know that there are in excess of 50 already. In terms of the magistracy, which is approximately 19,000, that is a relatively small percentage, but it is a vocal percentage. A lot of them are experienced magistrates who have been serving the justice system for 10, 20 or 30 years.
Chair
I understand that. In the survey you referred to, a majority said that they did not have an issue with the principle. There was quite a strong majority, right across the board, for various elements of discretion, if the charge were to continue. Of course, there is a big “if” about that. Do you have any observations about that? I get the sense that we are talking about 80%, maybe 86%, which is a pretty massive amount, isn’t it? If it were to continue, what do you think the most appropriate changes would be?
Malcolm Richardson
That it is put into the same category as fines and the contribution towards prosecution costs, and that the court has within its discretion either whether to order it or not, which might be at one end, but certainly that it should be related to the means of the defendant who is before you.
Chair
Do you think that there should be a greater degree of clarity about the hierarchy of payment of various financial penalties? For example, if there is to be compensation, would one regard that as rightly being something that should explicitly come first? In practice, that is the way we often talk about it.
Richard Monkhouse
We already know that there is. We already know that compensation comes first. The fine comes second, the Government surcharge comes third and on down the list. You are right. The courts charge is last on that list, and it is the last to be paid. When somebody pays money in, it is allocated towards compensation first, which means that after two years the defendant may well never have paid any of whatever the amount is, but it can only be written off if the person has not offended—just once. That offending might be a breach. It might be all sorts of things.
Chair
That is your point about the practicality on reoffending. You are also going to have to take into account totality anyway, aren’t you? Does the fact of the charge potentially act to reduce what you might be able to award by way of compensation or costs?
Malcolm Richardson
Parliament was very clear that we were not to take the criminal courts charge into consideration when considering—
Chair
Yes, but does that work in practice?
Malcolm Richardson
Anecdotally, no, but because we are human beings, we work out the sums.
Chair
Nature being what it is, the argument is that, for reasons that you advanced earlier, the distinction might be a rather artificial one in the reality of sentencing.
Malcolm Richardson
Yes.
Chair
I hope that I am not being unfair about that.
Richard Monkhouse
No. We know that that happens.
Dr Huq
You mentioned the very long periods that will happen if people are paying £5 a week, particularly people on benefits. Those periods will go way above the normal 12 to 18-month pay-off. Uncollected fines were a worry about this right from the start. Do you have any indication yet of the proportion of charges that are not being paid? Are there any figures on that?
Richard Monkhouse
No. You would have to ask HMCTS that. Once the imposition has been made, we do not get involved. We are not involved in collection. We do not even know how much is collected proportionately, according to each slot of money.
Dr Huq
Once you have done your sentencing, it goes somewhere else.
Richard Monkhouse
We do not see that money. It goes in somewhere else, and we just do not know. We could ask the question, but we only ask the question when we see an offender in front of us and get his history of fine payment. You can see from there what the period and the regularity of payment is. It is noticeable that just after they have been in court payments suddenly start to come in, and then they drift off. It is a matter of keeping on top of it. Deduction from benefits or earnings is one way of doing that, but there is a limit to how much you can take. Deduction from benefits can only be £5 a week.
Chair
I get that.
Philip Davies
Some of the evidence that we have heard has been about people who are innocent of a crime pleading guilty as a result of this. What evidence do you have from your members about the propensity of that to happen?
Richard Monkhouse
We have anecdotal evidence that some magistrates have refused to accept an equivocal plea—in other words, a plea that “I am not guilty, but I am pleading guilty.” They have refused to accept that plea. That has happened in the past, and the frequency of it seems to be increasing. But it is far too soon in the journey. This came in only in April. The last lot of Government stats show to March ’15, so there will be no evidence in the official data of what has actually happened—how the proportionality of guilty pleas to not guilty pleas might have changed. That will be a very interesting piece of stats to look at.
Philip Davies
Do you have any anecdotal evidence about people who are guilty of crimes pleading guilty rather than not guilty as a consequence of these changes?
Richard Monkhouse
It is about 85%, and it has stayed at about 85% for the past few years. That is the general figure: 15% of people plead not guilty and 85% plead guilty. Again, we have not noticed a change, because the data for that are not available. I could give you examples from when I sit, but that is once in a blue moon. It will not give you very much evidence. We would like to get more official evidence, rather than relying on anecdote.
Malcolm Richardson
The consequences of a court-ordered not guilty plea are starker with the criminal courts charge than they are with other charges. It is entirely possible for a sentencing bench to be made aware of the fact that this individual was found guilty after a trial, and the trial was directed by the court because of equivocation over the plea or because of some question that the court was raising. The court can take that into account when sentencing and, indeed, when deciding what contribution there should be to prosecution costs. It has no such discretion around having to impose a significantly higher criminal courts charge as a consequence, because that is an absolute where we have no discretion. That comes back to my discretion point earlier.
Alex Chalk
Have you or your colleagues ever declined to award compensation to a deserving victim on account of the fact that you have to take heed of the mandatory criminal courts charge? In other words, when doing your best to dispense justice, you have ended up having to abandon the compensation payment to a victim. Have you ever done that?
Richard Monkhouse
No.
Malcolm Richardson
No. I was surprised and somewhat shocked to hear the evidence that Mr Summerskill gave earlier of a judge who stated that he had done that.
Chair
Perhaps you could help on a small technical point that came out of your answer. What is the position—I genuinely do not know—in circumstances where there is a guilty plea but the magistrates, perhaps on the submission of the prosecution or of their own volition, decide that they want a trial of the facts before deciding on an appropriate penalty? How does the operation of the charge work around that?
Richard Monkhouse
I have not experienced one since the introduction of the criminal courts charge. They are not that frequent.
Chair
I know that they are not that common. I literally wondered whether there was any experience around that yet.
Richard Monkhouse
One would suppose that it is a guilty plea and you are only arguing about the facts.
Chair
Yes, and you treat it as a guilty plea.
Richard Monkhouse
Therefore the charge would be as the guilty plea.
Chair
That would be the logic.
Richard Monkhouse
We would listen to our legal adviser, who would no doubt give us the—
Chair
Sure, but it would be a bit of a grey area if it arose.
Malcolm Richardson
We can probably say that it should be taken as a guilty plea in the magistrates court.
Chair
That makes sense to me.
Malcolm Richardson
If our advice changes, we will let you know.
Chair
That is helpful. Mr Davies, do you have anything else?
Philip Davies
There is just one other thing. It is about the whole issue of discretion. You seem to be obsessed with discretion in this area, not unreasonably, but surely there are many other areas where magistrates do not have any discretion over what they have to carry out, whether they like it or not. For example, if somebody pleads guilty at the first available opportunity, you have to knock a third off their sentence, presumably whether you like it or not. I do not quite understand why you are so obsessed with discretion here in a way that you are not so obsessed with it in many other areas where what you have to give as a sentence is set down for you.
Richard Monkhouse
We have discretion in our sentencing guidelines. Each offence has a start point. There is quite a wide range, plus and minus, to take into account aggravating and mitigating features, so there is a lot of freedom for movement. The discretion is there. Not long ago I did some work that suggested that we fine 75% of the people we see. Does that really help with rehabilitation? Section 151 of the Criminal Justice Act 2003 says that, if somebody has been through that process and paid a fine three times or more, we could introduce a community penalty. That has never been enacted, but it might have a much more positive effect. That is where our discretionary powers might help. If we can say, “There is an offender here who is offending because of a, b or c,” and we can attack a, b or c, surely that will improve the process. Simply putting another fine or charge on somebody who is impecunious—shall we say?—will not help the matter. Yes, we would like to see some development in that discretion, but not through this.
Chair
Can you help me out with one other thing? We talked about the statistics. Earlier, Mr Summerskill referred to a lack of statistics in some areas, where some data do not appear to be published any more. I appreciate the anecdotal nature of this and that it is early days, but have you been able to pick up any change, for example, in the proportion of defendants selecting trial by jury? Is that discernible or not at the moment? It is on the back of Lord Justice Treacy’s comments, but I do not know what you have seen.
Richard Monkhouse
Not at the moment. When the next set of data comes out, it might be interesting, because it will take us from March to September, which will be almost the whole of this period. That will be an interesting set of data to look at.
Malcolm Richardson
In fairness, of course, the court is under a duty to point out to defendants the potential additional prosecution costs that they will incur if they go to the Crown court for trial. The extent to which there will be a difference caused by the difference in the criminal courts charge will be interesting to see.
Chair
At the moment, we cannot say. Similarly, I do not imagine that we are able to know whether or not the prospect of an enhanced charge by appealing a conviction in the magistrates court to the Crown court has had an effect. Do we have any evidence around that one way or t’other?
Richard Monkhouse
No, because it got to the Crown court only relatively recently. We know the delays in getting to Crown court.
Chair
Thank you very much. Do colleagues have any other questions?
Richard Monkhouse
Can I offer one more point?
Chair
By all means, Mr Monkhouse.
Richard Monkhouse
It is about disproportionality over the types of case. The same criminal charge would apply to a case dealt with by single justice powers that might take a minute as would apply to a case that might take a full day. There is no bearing in mind of how much that cost is. That is why I called it tokenistic. It is an absolute figure. If it is a summary case, that is the figure. There is no relative allowance for us to say, “Actually, this person delayed matters by taking it to Crown court and then, two years later, pleading guilty when he had pleaded not guilty.” That person has swung the system, or is attempting to swing the system, and that could be penalised even more. There is no balance. It is not just about fairness and proportionality for the offender. It is also about relevance to what the costs of the case actually are.
Chair
There will be some people who will work the system as best they can to their advantage. Let us not be starry-eyed about it.
Malcolm Richardson
A colleague told me of sitting in a single justice court dealing with fare evasion on London Transport. She was dealing with one case a minute. I worked out the fairly simple maths that meant that she was imposing £9,000 an hour in criminal courts charges and another £7,500 in contributions towards Crown prosecution costs.
Richard Monkhouse
Those particular cases were about a £1.50 evasion. That is the sort of case where you think, “Why is that coming into the courtroom?”
Chair
Quite. Equally, when a person has spun it out and eventually been convicted after a trial, logic says that if there are means you go after them on the prosecution costs of dragging it out.
Alex Chalk
On that point, precisely to deal with somebody who is gaming the system—supposing you have someone of means—do you feel that you have enough discretion to impose a significant amount of prosecution costs? The prosecution costs might sometimes be only—I say only—£500 or so. But if you have somebody who has gamed the system—there have been five hearings; they have not turned up, and when they have, they have swung the lead and said, “We need to get a defence witness,” so the whole thing has taken for ever and ever—would you welcome more discretion in appropriate circumstances to seek redress via the prosecution costs channel?
Richard Monkhouse
I am not sure that it is via prosecution costs, because the prosecution will ask for a contribution to their costs and it will be an absolute sum. We decide whether to pay towards all of that—
Alex Chalk
It is a relatively modest cap.
Richard Monkhouse
You could do it on a fine. There might be some degree of aggravation, so we could push it up.
Alex Chalk
Yes, you could do it by a fine.
Richard Monkhouse
That is a possibility right now.
Chair
You can reflect that in the fine.
Richard Monkhouse
Yes.
Dr Huq
I have one last quickie. This was quite slow to get off the ground initially—it came in at the end of the previous Government—but now it feels like you cannot open a newspaper without a magistrate saying why they have resigned. I have read about a couple of cases where people said that they wanted to pay the fine themselves and were reprimanded for that. As you travel up and down the country, have you come across any incidences of that?
Richard Monkhouse
The one reported case is the only case I have heard of. Clearly, it is inappropriate for a judicial office holder to make that offer, kind and thoughtful though it might be. We might all have thought about it, but there are rules. It is like saying to somebody you have just awarded a six-month prison sentence, “If you can’t do it all, I will do the first month for you.” When you balance it out like that, it is an improper suggestion, kind though it is.
Mr Hanson
Irrespective of the rights and wrongs of the charge, one of the central things for me would be how much does it raise, how much does it cost to raise and how much of it is actually paid by the people who are supposed to pay it? I do not know whether in the current position we have figures from yourselves potentially on what that might be, but that as well as everything else seems to me to be key to the issue.
Richard Monkhouse
You would have to ask HMCTS that. Again, we just do not know. We do not have any involvement in the collection. We do not do the accounting for them. They would know that, so an appropriate question in the right place to Natalie Ceeney might actually elicit the answer.
Chair
Gentlemen, thank you very much for your evidence. It is much appreciated. Oral evidence: Courts and tribunals fees and charges, HC 396 21