When I first learnt of the new ‘Criminal Courts Charge’ I’ll admit that I, along with every other lawyer practising in the criminal law I imagine, assumed that it was a ruse to discourage those accused of criminal offences from exercising their time-hallowed, yet somehwat pricey, right to trial by jury.
It seems I owe the Ministry of Justice an apology. It’s true that the new charge, coming into force on 13th April, imposes a mandatory financial penalty of £1,200 on anyone coming second in a Crown Court trial. However, the new fee imposed on anyone who waives their right to a jury trial, and who instead unsuccessfully contests a magistrates’ court trial, is a scarcely more palatable £1,000. Given the significant differences in costs to the public of these two different modes of trial, those electing a trial in the magistrates’ court might legitimately complain that they are the ones subsidising those who choose trial by jury.
So, is the new charge instead intended to make it so costly to contest a case that all bar the rich are obliged to plead guilty, I wondered? Not really. Yes, losing a Crown Court trial costs £1,200 – but even pleading guilty in the Crown Court costs £900, so you are pretty-well damned either way.
Oddly enough the discrepancy in charges is much wider in the lower courts: there is a charge of £180 for those pleading guilty in the magistrates’ court to a ‘triable either-way’ offence, that’s to say an offence that can be tried either in the magistrates court or before a jury in the Crown Court. That charge of £180 is a whole £820 less than that payable by those convicted of such offences by the magistrates after trial.
Which brings me on to what, I believe, is the true financial sleight of hand slipped into the variation in levels of the new fees by the Ministry of Justice: a sleight of hand more subtle, and, most would agree, more benign, than simply intending to restrict the right to trial by jury or the right to trial full-stop.
Let’s recap: pleading guilty in the magistrates’ court to a triable either-way offence (£180), is far cheaper than unsuccessfully contesting such a charge there (£1,000) or in the Crown Court (£1,200). However, pleading guilty in the magistrates’ court to a triable either-way offence is also £720 cheaper than pleading guilty to the same offence in the Crown Court (£900).
Put another way, for the same offence, for someone doing the same thing – i.e. pleading guilty – it works out £720 cheaper entering that plea in the magistrates court than in the Crown Court.
That’s potentially very significant because a lot of bread and butter cases that come before the Crown Court are triable either-way offences: e.g. most drugs cases, serious assaults or any offence involving public disorder.
In all such cases, a defendant has only opportunity to plead guilty in the magistrates’ court, usually the very first hearing. Then, where appropriate or where the defendant so chooses, the case is sent to the Crown Court, often for another hearing 2 weeks later.
At present, it is not uncommon for defendants who have given no indication as to plea in the magistrates court to enter a guilty plea at the first hearing in the Crown Court, and those who so are typically given the full available discount for a guilty plea from any sentence
After 13th April, defendants who plead guilty at the first hearing in the magistrates’ court will find themselves paying £720 less than those waiting until their case gets before the Crown Court, even if, in practice, defendants who wait only cause an additional fortnight’s delay.
It’s a vexed question whether the introduction of such fees, at all, is a good idea. But, it does appear at least that the various levels of the new charge don’t unfairly penalise those electing a trial in the Crown Court over a trial in the magistrates’ court. Neither do they disproportionately penalise those who contest cases as opposed to those who plead guilty (at least, not in the Crown Court). What the fee levels do mean is that, for those defendants thinking of pleading guilty, and whose cases might be sent to the Crown Court for trial, it makes a lot of financial sense to enter those guilty pleas in at the first opportunity in the magistrates’ court.
From the Ministry of Justice’s point of view, they can argue that they are not seeking to restrict trial by jury, not are they seeking to place undue pressure on defendants to plead guilty, simply, for those defendants who are intending to plead guilty, the new fees give them an extra nudge to do so sooner rather than later.
As for the question of whether your typical defendant will be able to pay any of these fees, or will instead find themselves after a short time mired in unaffordable debt, that’s a different question…
By David Allan, barrister @DavidAllanLegal