We need a tougher justice regime in these austere times – so why not bring back Dickensian-style debtors’ prisons? We’re not there yet, but we’re several steps along the way thanks to the UK Government’s Criminal Court Charges.
Magistrates have become concerned that they are obliged to impose these new charges – and potentially to jail offenders if they fail to pay them. In contrast to imprisonment for defaulting on fines, the Criminal Court Charges are not discharged by serving time in jail. There are set maximum levels for time in jail according to the amounts outstanding. So, if the Charge comes on top of other fines and payments, it can mean longer periods in jail for each defaulter.
The Debtors Act 1869 abolished imprisonment for contractual debt in England and Wales. Parts of the Act are still in force and make clear imprisonment is still available for “Default in payment of any sum recoverable summarily before a justice or justices of the peace” meaning fines, compensation and costs. The Government has in effect created a new category of imprisonable debt. Prison may be used only when the individual is “guilty of wilful refusal or culpable neglect” in failing to pay – the same wording used in guidance regarding the Criminal Court Charge. The potential term of imprisonment depends on the level of the amounts due (See Schedule 4 to the Magistrates Courts Act and notes below). The failure to pay the maximum £1,200 Criminal Court Charge could be penalised by up to 45 days in prison – at a cost of about £90 a day – more than three times the Charge itself.
The new Charge
So what are Criminal Court Charges? They were brought in by the then Justice Secretary Chis Grayling via a piece of secondary legislation (ie not open to detailed parliamentary debate or voting) in the final weeks of the last parliament. They are said to be a way of recouping some of the the cost of administering a criminal court case, but the charges are, in effect, a penalty for being a criminal. Any sort of criminal. They are not related to the seriousness of the offence nor really to the cost of the case to the courts, though the Government claims they “will be imposed at a level set according to the costs reasonably attributable to a case of the class”.
How do they fit with legislation on debt and court penalties? Well, they don’t really, and it may be (just may be) that Grayling failed to think this through. One might argue that the Criminal Courts Charge has elements of a contract or payment for a service (rather than a penalty) about it especially given the Department of Justice insists “that convicted adult offenders who use our criminal courts should pay towards the cost of running them” – as though the offenders are customers with a choice about whether to “use” the courts.
But the wording of the Debtors Act means the charge is nevertheless recoverable “summarily before a justice or justices of the peace”. Judges and magistrates already had powers to make cost orders, though at their discretion, and hence with a view to the offender’s ability to pay. Criminal Court Charges are compulsory and set on the basis of the Ministry of Justice’s standard menu.
They are linked to what court you appear in and the nature of your plea. They start at £150 for “Conviction by a magistrates’ court for a summary offence on a guilty plea”. But for a real bargain the court’s “consumer” might try the £180 option: “Conviction by a magistrates’ court for an offence triable either-way on a guilty plea”. Triable either way means it could remain at the magistrates’ court or the accused could have opted for a jury trial at the Crown Court. The charge is a clear incentive to throw in the towel at an early stage since a gamble on a jury trial could land you with the maximum charge of £1,200 for “Conviction by the Crown Court at a trial on indictment”.
There is also a disincentive for the accused to move a case up to Crown Court even with a guilty plea. That’ll set you back £900. But if you want to plead not guilty in “a magistrates’ court at a trial of an offence triable either way”, you’ll also be hammered if you are found guilty: that’s a £1,000 charge.
So the tendency is to disincentivise not guilty pleas and also deter access to the Crown Court, where a jury trial is generally regarded as the gold standard of justice.
Penalties for defaulting
So far so iniquitous, but the possibility of imprisonment for failure to pay the charge takes matters to a higher level – particularly since serving time does not discharge the debt. The charge is levied after other payments ie when compensation to victims, Victim Surcharge, prosecution costs and fines have been collected. With interest. The Lord Chancellor (ie Justice Secretary) has the power to decide a level of interest based on “a rate of inflation which will keep the value of the charge the same in real terms”.
If an offender is deemed to have made efforts to pay the money and has not reoffended “the court will be able to remit all or part of this outstanding debt”. But if default “is due to wilful refusal or culpable neglect and all other enforcement steps have been exhausted, then the ultimate sanction of ordering them to serve a term of imprisonment can be used as a last resort”.
Let us remind ourselves why our Victorian forebears started to have qualms about locking people up for debt and passed the 1869 Act. It’s obvious really: while they are in jail, they can’t earn money to pay the debt. But it’s worse than that since employers are not falling over themselves to employ people who have just come out of jail. It would be perfectly possible to escape prison for the substantive criminal offence that landed you in court – indeed it might not even carry a custodial penalty – yet find yourself jailed for the Criminal Court Charge. And that could lead to a spiral of debt and criminality requiring perhaps a new Dickens to describe in its malign absurdity.
There is some legal Twitter discussion of one case here. The individual was jailed for a day for a bail breach and landed with the full £1,200 charge because the case took place in Leicester Crown Court. (whether it was “at a trial on indictment” is a moot legal point). The Howard League has compiled examples of where the Criminal Courts Charge has been out of proportiojn to the penalty for the substantive offence here.
Magistrates are resigning over the imposition of the charge, as this remarkably sympathetic Sunday Express piece notes: Magistrates quit
This post on UK Criminal Law Blog says that in 2013-14 there were 2,771 prosecutions for vagrancy in England and Wales. “It is unclear how the government expects those who are prosecuted for begging to repay the purported costs of their proceedings.”
See also Legal Voice
The Secret Barrister writes an angry piece on the £328 Mars bar and an apparently unsympathetic magistrate here
Another Victorian response to modern problems: “Watching and besetting – a law against peaceful protest”
The legislation: The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 pdf
Substantive Act: Prosecution of Offences Act 1985 (Unamended)
Rules regarding imprisonment in default of fine payment: Magistrates Court Act 1980
Details of the new provisions ss.21A-21F (Courtesy UK Criminal Law Blog)
The scale of charges: Sentencing Council
Government explanation: Fact Sheet: Criminal courts charging – Gov.UK pdf
Prison for debt
The European Convention on Human Rights at Article 1 Protocol 4 has this: “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.” This has not been ratified by the UK though it is a similar principle to that in the Debtors Act (with exceptions, particularly if the contractual debtor was well enough off to pay but refused – six weeks’ imprisonment may be ordered). In England and Wales numbers imprisoned for fine default have declined from 22,500 in 1993, to 5,371in 1989 and are now at very low levels. This is because efforts have been made to ensure prison is very much a last resort. In particular courts have to make efforts to to try and avoid giving jail sentences. Magistrates must examine offenders’ means closely and pursue alternatives, including detachment of earnings orders before sending a defaulter to prison. See Regina v St Helen’s Justices, Ex parte Jones 1998 in which several jailings for court charges were quashed.
Northern Ireland has shown particular recent concern about the numbers of people imprisoned for non-payment of fines and the waste of police time in following them up. It has produced new legislation “designed to significantly reduce the numbers of people going to prison for fine default” by encouraging “community-based alternatives to imprisonment and alongside additional measures to improve deterrence”. See: JUSTICE (NO. 2) BILL – The Northern Ireland Assembly pdf.
This notes: “police officers … have been experiencing significant numbers of fine warrants – until recently up to 30,000 per year – being issued for execution”. Instead Northern Ireland wishes to “civilianise” the process with “collection officers who will have a number of powers under the authority of courts to recover money. The model would also provide courts with more community based options instead of committal to prison.”
16. The court may issue a warrant of commitment only if there has been a means inquiry and the court:
• is satisfied that the default is due to wilful refusal or culpable neglect; and
• has considered or tried all other methods of enforcing payment and concluded that they are inappropriate or unsuccessful.
17. The other methods that the court is required to have considered or tried are:
• money payment supervision order;
• application for deductions from benefit;
• attachment of earnings order;
• distress warrant [ie to take goods from the home in payment];
• taking enforcement proceedings in the High Court or county court
• if the offender is aged under 25, an attendance centre order (where available).
18. The period of commitment should be the shortest which is likely to succeed in obtaining payment; the periods prescribed in schedule 4 of the Magistrates’ Courts Act 1980 (set out below) should be regarded as maxima rather than the norm. The period of imprisonment may be suspended on condition that regular payments are made. Where such payments are not made, the defaulter should be brought back before the court for consideration of whether the period of imprisonment should be implemented.
Maximum periods of imprisonment in default of payment Magistrates Courts Act 1980 Schedule 4
Amount not exceeding £200: 7 days
Amount exceeding £200 but not exceeding £500: 14 days
Amount exceeding £500 but not exceeding £1,000: 28 days
Amount exceeding £1,000 but not exceeding £2,500: 45 days
Amount exceeding £2,500 but not exceeding £5,000: 3 months
Amount exceeding £5,000 but not exceeding £10,000: 6 months
Amount exceeding £10,000 12 months
(Note: Crown Courts can impose the above sentences plus higher sentences for higher sums up to 10 years for defaulting on £1m-plus fines, costs etc. See Powers of Criminal Courts (Sentencing) Act 2000 S. 139 for full list)