England: magistrates issue absolute discharges to mitigate ‘tax on justice’

Jonathan Smithers

Magistrates are allowing petty criminals to go unpunished in order to protect them from new court fees by issuing absolute discharges according to The Independent.

After it was introduced earlier this year, the Criminal Courts Charge caused a judicial backlash with about 50 magistrates leaving their posts and judges on the bench slamming the measure.

The charge is payable by anyone convicted of a crime on top of fines or costs and is not means-tested or varied according the severity of the crime.

It is fixed at £150 in the magistrates’ court if someone pleads guilty but can increase to a maximum of £1,000 if they are found guilty.

Figures show that bills for £5 million have been handed out to criminals in the first three months of the charge but that only £300,000 has been paid.

As magistrates have no power to vary the charge, absolute discharges are their only means of protecting poorer defendants from paying excessive charges for minor offences.

In one case a Berkshire magistrate, Robert Lynch, gave a man an absolute discharge after he was found with about £5 of cannabis in his home.

His solicitor, Mike Davis, had said: “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.”

Mr Lynch, agreeing, said: “That’s only the second time in 10 years I’ve done that.”

One judicial source 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.”

The former Justice Secretary Chris Grayling introduced the charge in April to make criminals contribute to the upkeep of the courts.

Frances Crook, chief executive of the Howard League for Penal Reform, said: “It is welcome to hear that some courageous and principled magistrates are making sure that justice is done in the courts by not imposing the criminal courts charge.

“This unfair and unjust charge is bringing the justice system into disrepute, and it is time it was suspended pending the outcome of a review.”

The president of the Law Society, Jonathan Smithers said: “The government should be concerned that an effect of its criminal court charge is to skew judicial decisions.

“We expect the justice committee will want to look at whether this practice is widespread, as part of its review into the criminal court charge.

“It is pointless pursuing the criminal court charges from people who are unlikely to ever be able to pay.”

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.”

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