Criminal Justice and Courts Bill — Committee (3rd Day) (Continued)

Part of the debate – in the House of Lords at 8:45 pm on 23 July 2014.

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Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice 8:45, 23 July 2014

My Lords, the criminal courts charge scheme has been designed to be clear and transparent, with charge levels that reflect the costs reasonably attributable to a particular type of case, and offenders expected to pay at a rate they can afford. The changes proposed by these amendments make the scheme far more difficult to understand and apply.

Amendments 63AA, 63AD, 63AG, 63AJ to 63AL and 63ABA would provide the court with significant discretion over whether to impose the criminal courts charge. As the court is the main beneficiary of the charge, there is a risk that this would be perceived as providing the ability directly to influence the funding of the criminal courts. The judiciary is an integral part of the courts system, and it has a vested interest in its success. Furthermore, where there is no clear indication as to what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, accepting these amendments risks offenders being treated unequally.

If what lies behind these amendments is to protect poorer offenders, this is unnecessary. The offender has the opportunity to provide means information that the court can take into account when setting the rate of repayment for the charge, as it does with court-ordered financial impositions. Offenders can manage their repayments so that they pay the charge at a rate they can afford. For instance, they can apply to pay by instalment, and if necessary request subsequently to vary the rate of repayment. Also, those offenders who make their best efforts to comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period of time.

Amendment 63AB proposes to limit the charge imposed to no more than 50% of the total cost they have imposed on the courts.

Amendment 63AM enables the court to impose a charge up to the amount specified by the Lord Chancellor. If an offender has committed a crime and imposed a cost on our criminal justice system, the Government believe it is right that they should be liable to pay back up to the full amount of costs reasonably attributable to that particular class of case. I have already outlined the protections in place to avoid placing an offender in hardship as a result of the charge.

Amendments 63AC and 63AF seek to limit the circumstances in which the criminal courts charge would be imposed. Specifying that an order imposing the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on plea is unnecessary. I can assure noble Lords that the courts charge will come into play only once a verdict has been reached—long after the defendant makes a decision about plea.

Amendment 63AF also provides that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. The charge will be enforced in the same way as existing financial impositions, so it is unlikely that the costs would exceed the level of the charge. Furthermore, it would not be possible for the court to anticipate how much enforcement activity will be required in a particular case.

We believe that excluding from the charge any costs associated with part of the hearing for which the defendant was not responsible would be unworkable. Charge levels will be set up to the cost reasonably attributable to that type of case, not based on a costs calculation on each individual case. Attempting to cost each individual case and then determine whether or not the offender was responsible for each element would be extremely time-consuming and totally impracticable.

Amendment 63AF also seeks to prevent the courts charge being imposed in relation to any appeal. The principle behind our courts charging policy is that offenders should bear some of the costs that have been incurred by the criminal courts as a result of their actions. It is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. Finally, the amendment inserts a condition that the courts charge cannot be imposed before a written means assessment has been carried out. Amendment 63AE also prevents it from being collected before an assessment of the defendant’s finances has been made. The criminal courts already impose a number of financial impositions and established systems are in place to ensure that the court is provided with an offender’s means information. For these reasons amendments 63AF and 63AE are unnecessary.

Amendment 63AFA would allow the court to consider the court charge imposed when sentencing or dealing with breach of a community order, community requirement, suspended sentence order or supervision requirement. The scheme is designed so the charge reflects the cost an offender imposes on the courts system. It is not a punishment that relates to the severity of the offence committed. It should not therefore be taken into account when deciding on the appropriate sentence.

Amendment 63AH would divide the payment of criminal court costs between defendants where two or more defendants are convicted during a single hearing. The Bill currently makes each offender liable to pay the criminal courts charge as prescribed in secondary legislation. We expect that each offender will pay the full amount, although the power will exist to charge multiple defendants less when they are convicted at the same time as others. The amendment creates unnecessary complexity and is likely to result in one offender, who has been tried with one or more co-defendants, paying less then an offender who has been tried on their own, despite the fact that they may have committed identical offences. This raises questions of fairness. Our approach is the fairest approach and should be both simpler to operate and simpler for offenders and the public to understand.

Amendments 63B, 63C, 63D and 63E seek to withdraw the conditions that must be met for the courts charge to be remitted and give the courts a wide discretion about doing so. As previously mentioned, the clause currently allows a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This provides a powerful incentive for offenders to repay the charge and refrain from reoffending, while also ensuring that those who meet these conditions are not necessarily required to make payments over an excessively long period.

Amendment 63AN specifies that, where the charge can be remitted, it includes the remission of interest. The purpose of the provisions to remit the charge is to relieve the offender of the debt where they have paid accordingly and not reoffended. It is therefore logical that any remission of the charge should include the whole debt—both the principal amount and the interest. The amendment is therefore unnecessary.

Amendment 63EA has the effect that offenders aged 18 to 21 who are sentenced to detention or imprisonment would be eligible to have their charge remitted earlier. The current proposal is that a court may remit the charge after a specified period that begins either when an offender is convicted or, if they have received a custodial sentence, released from detention or imprisonment. In practice it is unrealistic to expect many offenders to pay the charge while they are being detained. By setting the period after which the charge may be remitted to run from conviction rather than release for 18 to 21 year-olds, the amendment would mean that more serious offenders are likely to end up paying less than offenders who are not sentenced to custody. That would not be fair.

As to reviewing after three years, Amendments 63FA and 63FB would make changes to the provisions for the review of the criminal courts charge. At present, Clause 43 requires the Lord Chancellor to carry out a review of the operation of the criminal courts charge three years after the provisions come into force. Amendment 63FA would reduce this from three years to 12 months. It is intended that the review will consider various aspects of how the policy is operating in practice, including an assessment of enforcement costs and direct income arising from the policy. However, in order to be able to consider these issues in a robust way, the review must be after a period that will allow the criminal courts charging provisions to bed in and produce reliable results. We would simply not be able to do so after 12 months.

Amendment 63 FB relates to the mechanism for the repeal of the criminal courts charge in response to the review of the charge. Should the Lord Chancellor consider it appropriate to repeal the criminal courts charge, there is a related power to deal with consequential and transitional matters. This amendment would oblige the Lord Chancellor to make such consequential and transitional provision. The duty to create such provision is not needed. It is important that we consider, in any repeal process, the consequential and transitional issues of doing so. This is a complex exercise and I can assure noble Lords that any Government exercising the repeal power would consider these matters carefully.

Amendment 63FC would prevent the power to vary an offender’s rate of repayment being exercised by anyone other than an officer of court directly employed by HMCTS. Fines officers already have powers to vary repayment rates for existing financial impositions prior to default. Clause 44 extends these powers to enable repayment rates to be varied after default and to vary on less favourable terms to the offender, with the offender’s consent. HMCTS is in the process of procuring an external provider for the future delivery of compliance and enforcement activity for criminal financial impositions. This would improve efficiency and the collection of financial impositions as well as reduce the cost of current service. A court will impose the obligation to make payments. Fines officers will simply apply collection measures to satisfy that obligation. It is not inappropriate for an external provider to use powers to vary the collection.

The noble Lord, Lord Beecham, asked various questions. He asked what proportion of the financial impositions is currently collected. Of the financial impositions imposed in quarter 2 of 2012, 58% were paid within 18 months of the imposition month and, of the fines imposed in quarter 2 of 2012, 54% were paid within 18 months of the imposition month. The noble Lord complained that there was no impact assessment. There is, in fact, an impact assessment, which has been published on the Bill’s website.

He asked a question about confiscation orders in relation to an earlier amendment, when I said that perhaps it was better to consider the matter when we were considering criminal charges. Confiscation is a key tool in depriving criminals of their access. The Government are committed to improving confiscation and taking steps to improve the confiscation regime in the Serious Crime Bill, as he may well be aware. That is the right place, we respectfully suggest, for a debate on these matters. There are, indeed, provisions in the Bill that strengthen the default system. We are planning, in due course, to allow confiscation orders to be made in the magistrates’ court for the first time. These matters are part of an overall serious and organised crime strategy.

The noble Lord, Lord Beecham, asked about Article 6 of the ECHR on access to the courts. We are satisfied that the criminal courts charge provisions are, in fact, compatible with the European Convention on Human Rights, Article 6 of which contains an implicit right of access to the courts. The charge would not interfere with that right in any way.

Preventing the use of the powers that these provisions contain would mean that offenders would have to face the consequences of defaulting on payment, which might include the use of bailiffs or a return to court to seek a variation, including additional costs for the court. We suggest that, notwithstanding the difficulties that are presented by those who do not have substantial means, as the noble Lords, Lord Kennedy, Lord Ponsonby and Lord Beecham, and my noble friend Lord Marks, mentioned, they are met by the various provisions that I have outlined to mitigate the harshness, and that the transparency and consistency of this provision is an advantage and should result in financial benefit accruing to the whole criminal justice system. I therefore ask the noble Lords not to press their amendments.