More on Grayling's Legacy

Following on from yesterday's powerful view from a defence solicitor, here's respected legal commentator Joshua Rozenberg writing recently in the Law Society Gazette:- 

Repairing Grayling’s damage

As the Conservatives gathered for their party conference a year ago, I commented in the Gazette on the widely held view that Chris Grayling was ‘simply the wrong person for the job’ of lord chancellor and justice secretary. That view seems to have been heeded by David Cameron.

Unlike the chancellor of the exchequer, the home secretary, the foreign secretary, the defence secretary and several other cabinet ministers, Grayling lost his high-profile department after the general election in May. Since succeeding him, Michael Gove has set about dismantling many of Grayling’s more indefensible policies.

As you might expect, the former education secretary began in July by lifting the remaining petty restrictions on prisoners reading books. Inmates can now have them sent in by family and friends and can keep more than 12 books in their cells at a time.

Also in July, the justice secretary scrapped plans to spend an estimated £85m building a huge prison in Leicestershire for 320 young offenders. Although £5.6m had already been spent on Grayling’s ‘secure college’, the Ministry of Justice said it would be a ‘mistake to press ahead with such a development when resources are so tight’.

This month, Gove announced a much-needed review of education in adult prisons. Little wonder then that the justice secretary is confident enough to speak at a meeting in November arranged by the Howard League for Penal Reform. Grayling, by contrast, tried to undermine the UK’s oldest penal reform charity last year by accusing its chief executive of supporting the Labour party.

When dismantling Grayling’s legacy, Gove ensures that discredited policies are attributed to the ‘coalition government’ or the ‘previous parliament’. That was the phrase he used to distance himself from another project that Grayling had enthusiastically promoted during his two-and-a-half years as lord chancellor. Just Solutions international (JSi) described itself as the commercial arm of the National Offender Management Service (itself an executive agency of the Ministry of Justice).

Its brochure said it specialised in providing ‘offender management products and services to overseas governments’ — such as designing new prisons. The legal blogger David Allen Green, who worked as a central government procurement lawyer from 2005 to 2007 and who has made much of the running on this story, derided JSi as ‘an exercise in amateurism and obfuscation’, which allowed MoJ officials to go round the world ‘selling their supposed expertise to foreign despotic governments’ rather than running the prison and probation services of England and Wales.

Earlier this month, Gove said he had decided that JSi should ‘cease to operate’. However, one last deal would be honoured: a project to conduct a ‘training needs analysis’ for prison service staff in Saudi Arabia. Ministers had decided that ‘withdrawing at this late stage would be detrimental to the government’s wider interests’ – quite apart from the financial penalties involved. As far as Gove was concerned, though, there would be no more commercial work for foreign governments.

On legal aid, the justice secretary still has a long way to go. But at least he got the parties talking. Answering MPs’ questions this month, he thanked ‘the leadership of the criminal solicitors’ profession and the criminal bar’. Playing down the ‘action’ they had ‘felt it necessary to take’ during the summer, he praised their ‘constructive dialogue’ with his officials.

The one policy on which Gove has not yet relented is Grayling’s criminal courts charge, under which adults convicted of offences committed after 12 April 2015 must be ordered to pay either £150 or £180 if they plead guilty at the magistrates’ court but £520 or £1,000 if they are convicted after a trial, the higher charge applying to offences that are triable ‘either-way’. In the Crown court, you pay £900 for a guilty plea or £1,200 after a trial. The charge, which disincentivises putting the prosecution to proof, is in addition to fines, compensation orders and costs.

Gove promised MPs that the charge would be reviewed. But I am told that this was no concession: he was referring to the review he is required by statute to carry out after three years. He also claimed that the ‘payment of the charge in due course should be linked to the offender’s means’.

That was an apparent reference to the court’s power to cancel a charge if a convicted person has taken all reasonable steps to pay or if collection is impracticable. But you cannot even apply for a charge to be cancelled until two years after your most recent conviction. And who pays for the paperwork?

Gove may not be too worried by reports that more than 50 magistrates have resigned over the charge. But what should concern him is that this is another ineffective Grayling legacy that is wrong in principle and costly in practice.

--oo00oo--

Here's an article in the Independent outlining the lengths some sentencers are going to in avoiding the dreaded new tax:-

Magistrates let guilty petty criminals off without punishment to protect them from 'tax on justice'

Magistrates across England and Wales are letting guilty petty criminals off with no punishment in order to protect them from controversial new court fees, The Independent has learnt. They are increasingly resorting to a little-known sentencing option called an absolute discharge which registers guilt but hands out no punishment – effectively letting the criminal off.

Since it was introduced earlier this year, the Criminal Courts Charge has prompted a judicial revolt with around 50 magistrates resigning and several judges lambasting it from the bench. In recent weeks, The Independent has reported on growing opposition within the criminal justice system to the new levy, which some say amounts to a “tax on justice”.

The charge is payable by anyone found guilty of a crime in addition to any fines or costs. It is not means-tested or adjusted according to the seriousness of the crime. In the magistrates’ court it is fixed at £150 if someone pleads guilty, but it can rise to £1,000 if they are found guilty.

New figures suggest that more than £5m has already been billed to people under the new court charge in its first three months – and that less than £300,000 of it has been collected. Magistrates have no discretion over how much someone has to pay in court charges if they are punished for their crime. But if they grant an absolute discharge then no punishment is given and poorer defendants are protected from paying over the odds for minor offences.

Normally even minor crimes are subject to a conditional discharge, meaning that a punishment could be meted out if they reoffend within a A Berkshire magistrate gave a 51-year-old man on disability benefits an absolute discharge earlier this month after he was caught with around £5 worth of cannabis at home.

The defending solicitor, Mike Davis, had argued: “If you give him a conditional discharge he will still have to pay the £150 criminal courts charge – that’s an awful lot for a tiny amount of cannabis. If you were to give him an absolute discharge he wouldn’t have to pay it.” The presiding magistrate, Robert Lynch, agreed to the recommendation. “That’s only the second time in 10 years I’ve done that,” Mr Lynch said. A judicial source abreast of the picture across England and Wales said: “We’re seeing this a lot. Effectively this is magistrates being creative with their sentencing in order to avoid the charge. It’s always for low level harmless stuff. It’s happening around the country. We expect this to increase as the cycle of trials subject to the charge continues to kick in.”

Mr Davis, the defending solicitor in the Berkshire case, said he and solicitors across the county had started arguing for absolute discharges with increased success since the Criminal Courts Charge was introduced in April. “Generally it’s because it’s low level crime that would normally merit a conditional discharge but the defendant’s circumstances are such that they can’t pay [the court fees]. Previously I hadn’t asked for an absolute discharge in 20 years because it would have had to be a pretty exceptional case. But since the charges came in I’ve used the argument about five times to avoid disproportionate cost - and it’s worked twice.”

The new levy was introduced in April by the former Justice Secretary, Chris Grayling, to make criminals pay for the upkeep of the courts. Campaigners hope his successor, Michael Gove, will consider scrapping the measure as evidence grows that it unfairly penalises those whose crimes are very minor and motivated by poverty.

The defending solicitor, Mike Davis, had argued: “If you give him a conditional discharge he will still have to pay the £150 criminal courts charge – that’s an awful lot for a tiny amount of cannabis. If you were to give him an absolute discharge he wouldn’t have to pay it.” The presiding magistrate, Robert Lynch, agreed to the recommendation. “That’s only the second time in 10 years I’ve done that,” Mr Lynch said. A judicial source abreast of the picture across England and Wales said: “We’re seeing this a lot. Effectively this is magistrates being creative with their sentencing in order to avoid the charge. It’s always for low level harmless stuff. It’s happening around the country. We expect this to increase as the cycle of trials subject to the charge continues to kick in.”

Mr Davis, the defending solicitor in the Berkshire case, said he and solicitors across the county had started arguing for absolute discharges with increased success since the Criminal Courts Charge was introduced in April. “Generally it’s because it’s low level crime that would normally merit a conditional discharge but the defendant’s circumstances are such that they can’t pay [the court fees]. Previously I hadn’t asked for an absolute discharge in 20 years because it would have had to be a pretty exceptional case. But since the charges came in I’ve used the argument about five times to avoid disproportionate cost - and it’s worked twice.”

The new levy was introduced in April by the former Justice Secretary, Chris Grayling, to make criminals pay for the upkeep of the courts. Campaigners hope his successor, Michael Gove, will consider scrapping the measure as evidence grows that it unfairly penalises those whose crimes are very minor and motivated by poverty.

The Magistrates Association is calling for an urgent review of the policy, saying the poorest defendants are being encouraged to plead guilty to crimes they did not commit out of fear they will face crippling costs if they later lose their case.

The Government is also accused of burying the latest figures on the scale of courts charges handed out - and how few have actually been collected. When it published a list of all fees imposed and collected by courts it failed to separate out the Criminal Courts Charge. Instead it was lumped in with obscure court fees in the ‘other’ category.

Ms Crook of the Howard League said she was disappointed to see no individual figures on the charge. In the first quarter of this year just £744,000 was collated in the ‘other’ category. The only new addition to this category in April was the Criminal Courts Charge, causing the total charged in the next quarter to jump to £6.4m. Yet the amount of collected within one month was just £326,000.

A Ministry of Justice spokesman said: “It is right that convicted adult offenders who use our criminal courts should pay towards the cost of running them. The legislation and guidelines to magistrates and judges make it crystal clear that the charge is separate to the sentence and should not be considered as a mitigating factor. “It was not possible to provide separate figures on the charge which met the data quality standards required in time for this publication. More detailed figures will be published in due course.”

Legal definition: Absolute discharge

Although the “absolute discharge” has always been an option for magistrates it was previously only used in very rare exceptional circumstances. It means that the court acknowledges a person is guilty but decides to give out no punishment at all.

It is useful in avoiding the Criminal Courts Charge as although the defendant still gets a criminal record, they are not subject to any fees, or other penalties. Previously magistrates preferred to give a “conditional discharge” to those convicted of petty wrongdoing, which means they will face punishment if they re-offend within a set period.

Judicial anger at the Criminal Courts Charge

A Leicester judge became the latest judicial figure to speak out against the Criminal Courts Charge this week, saying he does not think it has “any merit”. Recorder Timothy Raggatt QC made the comments in Leicester Crown Court when jailing an unemployed man for 10 weeks for possessing a knife.

Having been told defendant Moz Johnson did “not have any money,” Mr Raggatt said he did not want to impose the mandatory £900 criminal courts charge. “I will make the order only because it’s down to statute and not because I think it has any merit,” he said. “Those who impose these things may have the responsibility of collecting it and whether or not they can achieve anything is a moot point. I wonder how much that will cost the country in terms of administration?”

He is not the first judge to speak out about the charge. Judge Christopher Harvey Clark, QC, lambasted it while sentencing in Truro Crown Court last month. He said: “The charge has no bearing on your ability to pay. It is totally inappropriate for people of no means to have to pay this charge. It happens to be Government policy but as an independent judge I regard it as extremely unfair and, although I have to impose it, I do so with immense reluctance.”