With this it will be convenient to discuss the following:
‘of up to 50 per cent of total’.
Amendment 111, in clause 29, page 30, line 10, after ‘(3)’, insert ‘and (3A)’.
Amendment 100, in clause 29, page 30, line 11, at end insert—
‘(c) it being just and reasonable to do so in the opinion of the court’.
Amendment 112, in clause 29, page 30, line 15, at end insert—
‘(3A) An order must not be made—
(a) if in the opinion of the court it may affect a decision on plea;
(b) where enforcement costs are likely to amount to more than the value of the charge;
(c) in relation to any part of the hearing for which the defendant was not responsible;
(d) in relation to any appeal; and
(e) before a written means assessment has been carried out.’.
Amendment 102, in clause 29, page 30, line 28, at end insert—
‘(6) The court must give reasons for either imposing or not imposing court charges.’.
Amendment 103, in clause 29, page 30, line 30, leave out ‘must’ and insert ‘may’.
Amendment 104, in clause 29, page 30, line 43, leave out ‘must’ and insert ‘may’.
Amendment 105, in clause 29, page 31, line 10, leave out ‘must’ and insert ‘may’.
We are making some progress—we have already covered more clauses than we did in the entire morning sitting. We may slow down a little now, but this is an important clause and a substantial group of amendments. I see why they have been grouped, because if there is a common theme here it is the issue of discretion, or some mitigation on what appears, subject to what the Minister says to convince the Committee this afternoon, to be an unnecessarily compulsory and draconian power to impose a court charge which, unlike any other financial penalty save for the victim surcharge—the Minister will correct me if I am wrong—is not at the discretion of the court.
Amendments 98, 103, 104 and 105 would simply replace “must” with “may” to give the discretionary element. Similarly, amendment 100, which says that imposing a charge should be,
“just and reasonable … in the opinion of the court” and amendment 102, which says:
“The court must give reasons for either imposing or not imposing court charges” act as a form of brake, or an explanation that the court will need to delve into, in order to establish that this charge is being properly made, both of itself and at the appropriate level.
Amendment 99 would substitute,
“of up to 50 per cent of the total” for the words, “in respect of”. In other words, it would limit the amount of the charge. That is a somewhat notional figure, because one does not know, of course, what the figure will actually be, but the intent of the amendment is clearly to say that where a court is levying a charge, it should take into consideration the large costs of the hearing. Here, we are in the criminal courts, not, I appreciate, in the civil courts, where the Government are seeking not just full cost recovery, but more than full cost recovery, in some cases.
This is new territory in a number of ways. One of these is a purely financial way, which is quantifying the level of the charge. There are all sorts of costs associated with court proceedings which may go far beyond the costs of the people who are present in court or the running costs of the court. Her Majesty’s Courts and Tribunals Service is a large bureaucracy, it is a very expensive service to run and if the sole motivation here is to mitigate those costs by getting losing criminal defendants to pay those costs, the Government ought to be clear about that, take one step back and say that it is not reasonable to expect, as the Government expect on the civil side, for all those costs to be recovered.
Amendment 112 goes into more detail and expresses specific circumstances in which it may be inappropriate to order a charge to be paid, such as
“if in the opinion of the court it may affect a decision on plea”.
I shall say more on that in a moment, but it is pretty self-evident. If one is talking about relatively minor offences and if there is a marginal decision to be made, it may well be that faced with the prospect of paying a substantial sum of money, as happens with parking fines where the doubling or quadrupling of parking fines happens with each challenge, the defendant may well decide that they are cutting off their nose to spite their face by going down that route. But that is the wrong approach. People should not be given any inducement to plead guilty when they may not be guilty.
I have received a parliamentary answer from the Minister today which says that the cost of the national compliance and enforcement service for the financial year 2012-13 was £49 million and that the total value of the debt estimated to be recoverable at 31 March 2013 was £320 million. The missing figure there is how much is due to be recovered. If he could provide me with that figure, I would be pleased to hear it. I have heard figures of £1 billion and £1.5 billion and all sorts of many-noughted figures here. The point is a good one. On the one hand there is the cost of the service. We may say a bit more about that when we reach clause 31. There is the actual debt that remains to be paid and then there is the debt that the Government think is recoverable. That appears to be £320 million. In appearing to be tough and punitive on defendants and in running after money that may not be there, the Government should take account of the balance between enforcement costs and the value of the charge.
Subsection (c) of amendment 112 reads:
“in relation to any part of the hearing for which the defendant was not responsible”.
That is easy to imagine. Parts of criminal trials often occur as procedural matters. It may relate to faults in the prosecution and cases where, as often happens these days, the prosecution has not got its tackle in order and there are delays to the process. If a trial is adjourned through no fault of the defendant and goes over to another day, will the defendant be expected to bear those costs?
Subsection (d) refers to
“in relation to any appeal”.
I would not like to see defendants discouraged from appealing. One of the rights retained under the new scheme that we discussed this morning is the full right of appeal. It is one of the strengths of the magistrates court system. It is one of the points of rebuttal to those who say that it is in some ways less accountable than jury trial to say that there is always an automatic full right of appeal. If there is to be a charge and no doubt a more substantial charge on appeal, which the clause allows for—this is even more relevant to subsection (a)—it is likely to put off the defendant who is unsuccessful at first instance. I will not say much about subsection (e) as a separate amendment deals better with the issue of means, which is clearly a crucial point here.
Let me develop the argument a little more. If the Minister says that this is low level or de minimis, I beg to differ as my colleagues and I did this morning. This is another substantial change. This may be apocryphal, in which case I apologise to the Chinese ambassador, but after executions in China the family of the executed person was asked to pay for the bullet. That is the first thing I thought of when I heard that convicted defendants, when they had suffered every other penalty that the court had to offer, would be asked to pay for the costs of their hearing.
The Minister says that that says more about me than it does about the criminal justice system. I use the story as an analogy, because I want him to think carefully about the issue. I want to pray in aid not only the people the Government do not like, such as the civil liberties organisations, but people the Government do like, such as the Magistrates Association, which stated:
“The MA advises the Government in the interest of justice to amend the proposals to allow the court discretion in imposing these fees. The court is in the best position to identify in which cases the ordering of payment of court costs would be inappropriate or unreasonable.”
It is polite, as usual, but I would put it in stronger language. It is slightly insulting to the magistracy to say, “We will decide that you must impose this particular charge.” Why should it not, like many other financial penalties, be a matter of discretion? The Magistrates’ Association
“would presume that in prescribing which cases will be exempted from this set of clauses, the Lord Chancellor would consult closely with...stakeholders. In those cases where the ordering of a court charge payment is appropriate, the MA would suggest a detailed and thorough scoping exercise must take place to ensure the systems in place are sufficient to deal with this additional layer of complexity in imposing fines without damaging the efficiency of case management or compromising the judicial duty to ensure sentences are proportionate in the totality.”
Those are quite strong words, and I do not see anything in the current legislation that provides for that. The association continues:
“In general, the MA supports the greater flexibility offered in relation to payment of fines which allows response to changes in an offender’s circumstances. However the MA is concerned that an additional layer of complexity is being added to a system at a time when the Government is planning to contract out the Compliance and Enforcement Service.”
We will come to that later. It adds:
“It is important that the necessary provisions are in place to ensure the system can ensure effective collection of fines and orders.”
That is not an endorsement of what the Government propose.
As I said, various separate charges can be levied, and this one is most akin to the charge for prosecution costs. We can compare it to prosecution costs. I will quote what Liberty said:
“There already exists a wide judicial discretion for costs orders in the criminal justice system in addition to a range of sentences and other post conviction orders that can impose financial liability. Section 18 of the Prosecution of Offences Act 1985 grants Magistrates and Crown Court judges a discretion to award prosecution costs against a convicted person ‘as it considers just and reasonable’, as in our amendment, and it continued:
“Costs can similarly be awarded where a criminal appeal is dismissed in the Crown Court or Court of Appeal. The Practice Direction on criminal costs orders makes clear that costs should be ordered by the Court under section 18 of the POA only where the ‘court is satisfied that the defendant has the means and ability to pay.’ CPS guidance on costs...states that prosecution applications for costs should not be made if in the circumstances of the individual case ‘it would be unmeritorious or impractical.’ The guidance gives examples of where an application for costs would be inappropriate, including where ‘it will cause undue hardship e.g. where it is clear that the defendant suffers from a serious physical or mental illness’ or where ‘the defendant is in such dire financial circumstances that the Court are likely to consider the award of costs as oppressive.’ It further suggests that where a long sentence or a hospital order is made, a costs award need not be made.”
That is a well-thought-out, well-tried programme of how one addresses prosecution costs.
There is no discretion in the clause. It is a mandatory charge, irrespective of the circumstances of the individual or the nature of the case. I agree with Liberty’s view that it will have an oppressive impact. It will act as a disincentive to a not guilty plea. In effect, pleading not guilty means a longer sentence, which is accepted. It might mean a higher amount of prosecution costs and a higher contribution towards legal aid, and now it also means a higher court charge. For all those reasons, we say this is wrong.
I doubt that we will have a clause stand part debate. I am happy to develop my argument in the context of this first set of amendments because they go to the heart of the clause. If we were to have a clause stand part debate, I would wish to draw two points to the Minister’s attention. First, if the Minister is going to impose an additional penalty, is this the right use of the funds? Secondly, how much money does he think that he will get from this? I would like a cash answer, but it is also a rhetorical question. Will this be worth the candle?
I have read some of the briefs and have heard the evidence of some of the witnesses from prisoners’ organisations. Sadly, ex-convicts often come before the courts again, and whether or not they are ex-convicts, they are people of very limited means. I refer the Minister to the evidence of the Prison Reform Trust and the Howard League. The Criminal Justice Alliance evidence includes these comments:
“The imposition of this new charge is in addition to existing penalties and the court’s powers to require offenders to make payments including compensation for victims, the victim surcharge, prosecution costs and fines. Applying yet another charge to those sentenced by the court will increase their financial burden. Many offenders are reliant on benefits and paying this extra charge will either incur further debt or result in increased deprivation to the offender and their family. In a recent study when offenders serving community sentences were asked what would help them stop offending, 62% said having a job. … 48% of those in prison have a history of debt.
This charge is an additional burden for offenders and their families and must be seen in the light of recent benefit cuts. Inability to pay is likely to see offenders brought back before the courts and there is a danger of an escalation in punishment through the addition of this extra charge.”
On all the comparators—employment, cost of living and the likelihood of homelessness, of being in debt and of being the victims of crime themselves—offenders, people who are brought before the courts and convicted, are less likely than the public at large to be able to afford to pay the charge. I am sure that the Minister is aware of those points, but they do not seem to have been taken into consideration, as the proposed charge will be compulsory.
My other point is that I think that the Minister is a bit cheeky in taking this money and applying it to pay the courts of Her Majesty’s Courts and Tribunals Service. The Government have been lobbied for years now, certainly going back as far as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and probably long before then, by the legal professions to levy a charge to mitigate the cuts in legal aid. I do not know if he saw the statement last month from the Criminal Law Solicitors’ Association, which rather irately said:
“For years legal aid defence practitioner groups…have suggested in written responses to various MOJ consultations and in high level meetings that a convicted defendant should contribute towards the cost of their legal aid. We said ‘We calculate that with a conviction rate of about 80%, ie 320,000 cases per annum, this measure would result in an annual saving of approximately £55.5 million. That is a saving of £222 million over a four year period.’ This has been repeatedly rejected by the MOJ as impracticable.
We very much welcome the fact that the MOJ suddenly is converted to the view that a contribution from Defendants is a fine idea but what a pity the amount recovered will not be spent towards relieving the hard pressed legal aid fund as we suggested but instead applied in the costs of running the courts.
The very court system that contrives to make legal aid lawyers and their clients lives a misery with expensive delays and inefficiencies that throwing money at will not cure and which abuses we have identified persistently.
We wonder was there any point of an expensive consultation process with legal aid lawyers on the issue of legal aid expenditure if the new potential income streams we identify are diverted to defray other expenditure. Why do the MOJ still insist that a £220 million cut (always an absurd figure) is required when failing to utilise Defendants potential contributions to their own defence?
Having now decided that such a contribution from the convicted is viable for collection we ask the MOJ to reconsider the application of this money and put it towards the relief of the hard pressed legal aid fund as we suggested. This will help maintain public access to Justice for our citizens in the face of State funded prosecutions.”
I do not share that view, as the Minister will understand. I do not think that he will collect very much money at all. I would be interested in his view on whether £55 million is a realistic figure, or what his alternative figures may be. However, I would be most interested in his observations on two points. Given the crisis in legal aid, why does he believe that it is more appropriate to offset the cost of the courts than to compensate in some part for the swingeing cuts that he is imposing on the criminal legal aid system?
Secondly, the proposal sends out terrible signals. I have seen some very sensible proposals, not just from the CLSA, but from the Bar Council and Law Society, both of which make the same point in their representations that the money should not be diverted to the Government; it should go to the legal aid fund.
How will the Government encourage co-operation? They are asking a lot of the professions. They are asking them to find hundreds of millions of pounds in savings as alternatives to proposals that the professions say are unworkable. The Law Society in particular has worked very closely with the Government and received quite a lot of criticism for doing so. If the Government say at the end of the day, “Thank you very much for your suggestions. We will take them and the money anyway, in addition to the cuts that we have made.” That seems to be a breach of faith and counter-productive in the long run, because the Government will get no further co-operation.
I should like the Minister to say, first, why he has chosen to apply an additional court charge and, secondly, whether the figures are accurate or whether he intends to collect some other sum of money. We were very vague this morning on figures for savings from the single justice process, so I hope that the Minister will be more precise.
Guy Opperman (Hexham) (Con) rose—
The hon. Gentleman is at least on the record now and it is nice to see him taking an interest in proceedings.
I mentioned perverse incentives placed by the charge on the defendant. I genuinely believe that may be the case. As Justice says,
“since further charges will be sought if a convicted person pursues an appeal, they may be unduly dissuaded from appealing by the potential costs of doing so. A restriction placed on access to a court or tribunal will not be compatible”— the Minister will see what is coming—
“with article 6(1) ECHR unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. Without significant justification beyond costs saving, and with little explanation of the operation of the costs recovery scheme, or any safeguards to protect the integrity of the criminal justice system, we consider the demand for court charges to be unprincipled, unjustified and unnecessary.”
A mandatory charge is certainly unnecessary. I made a comparison with the prosecution charge. I note, as others have, that there is no impact assessment. There are lengthy and detailed impact assessments on many parts of the Bill, but I am not aware that there is an impact assessment on this one. If I am wrong, the Minister will correct me. We like impact assessments because they give us a lot of ammunition. It seems bizarre that there is no impact assessment for the provision, which will impose a new and quite heavy financial penalty. Can we have one at some stage? That would be quite helpful.
I wish to make other points, but I think they can be dealt with under other amendments. I repeat that it would be helpful to get an idea of what the overdue debt is. Is it £2 billion? That includes a lot of money in confiscation orders—perhaps as much as two thirds of that sum. However, even if it is a third of that sum, it is a substantial amount of money. If only a third of that is likely to be recoverable, the Minister is whistling in the wind. What is his expectation of any additional recovery?
If the Bill is passed, the charge will be compulsory. The victim surcharge is a compulsory charge. Why would any reasonable court not look at an offender and decide that he or she cannot afford to pay any more? Why would the court not simply waive prosecution costs, attach a small financial penalty or mitigate in some other way? Either the Government will get a pyrrhic victory by imposing an additional charge that they cannot collect, or the overall sum of money to be paid to the state will be no greater, and the system will simply become more bureaucratic. I will come back to that again, if I may, but I have made a number of points that I hope the Minister will reply to.
I am happy to try to address the various points made by the hon. Gentleman. I confess that, while little of what he says surprises me, I was surprised today because, until recently, he had managed to avoid using the term “legal aid”. My hope that the whole day might pass without those two words creeping from his lips was, I am afraid, not to be.
Regarding legal aid, the charge that we are talking about here is focused on recovering the cost of courts from offenders. We have an established system to recover criminal legal aid costs incurred in a Crown court that requires convicted defendants to pay back up to the full amount of their costs where they can afford to do so. We have recently taken steps to strengthen that system, including with tougher powers to enforce debts.
I can confirm to the hon. Gentleman that the impact assessment is published on the Bill’s website. He has made a number of points regarding finance, to which I will return later in my comments, and I will provide the figures that he has asked for.
This group of amendments seeks to make a number of significant changes to the way in which the criminal courts charge would operate. We have designed the criminal courts charging scheme in such a way that the circumstances in which the charge is imposed are clear and transparent. The charges are clearly set out and reflect the costs reasonably attributable to each type of case. Offenders will be expected to pay at a rate they can afford. As a result, the scheme is straightforward to understand and explain to those affected by it.
The changes proposed by the amendments would not only make the scheme far more complicated and difficult to understand and apply, but create a number of additional problems, as I will explain.
Amendments 98, 100 and 102 to 105 would give the court discretion over whether to impose the criminal courts charge on a convicted adult offender. The court would be expected to decide whether it was just and reasonable to impose the charge and give reasons for its decision.
The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal courts—a system of which they are an integral part and the success of which they have a vested interest in. We cannot permit the risk of such a perception.
With no clear indication of what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, it could not be guaranteed that every offender would be treated in the same way. To accept the amendment would therefore create a significant risk of unequal treatment of different offenders, with important financial consequences for individuals.
If the concern is to protect offenders who are poor, or on low incomes, I can provide reassurance that a number of protections are already built into our proposals. When setting the rate of repayment for the charge and other court-ordered financial impositions, the court can take the means of the offender into account. Offenders will be able to apply to pay the charge by instalment and, if necessary, request to vary the rate of repayment subsequently, allowing them to manage their repayments and pay the charge back at a rate that is affordable to them. Further, offenders who play by the rules, who comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period.
On amendment 99, I cannot understand the rationale behind the hon. Gentleman’s proposal to limit the charge to no more than 50% of the total cost that offenders impose on the courts. It seems to me that the Opposition do not object in principle to offenders paying back the costs that they have imposed on the criminal courts to relieve the burden placed on the hard-working taxpayer. If an offender has committed a crime and imposed a cost on our criminal justice system, it is right that they should be liable to pay back the full amount of costs reasonably attributable to that class of case.
I should like the Minister to address specifically the point that I made about whether the costs imposed would be the overall costs of the courts system, which might be much greater than the individual hearing-day costs. I will put to him a point that was put to me by magistrates. This will put a very high penalty on those guilty of motoring offences, because they tend to be the people who have the means to pay. If the Minister is seriously looking at full costs recovery in criminal proceedings, the only people he is likely to penalise are people of means, who will be predominantly people who are guilty of less serious—what he would call more trivial—offences who are probably already the financial victims of the criminal justice system, at least as they would see it.
What I mean by
“costs reasonably attributable to that particular class of case” is that the criminal courts charge takes into account fixed costs such as the cost of running a court building, IT and administration costs, as well as other costs. It is not practicable to calculate the precise cost of each individual case, so we will set the charges to reflect the costs that are reasonably attributable to any class of case.
The Opposition’s concern may be to protect offenders on low incomes from significantly increased payments towards sums imposed on conviction. I have already outlined the various protections that we have built into our proposals to ensure that we avoid placing an offender in hardship as a result of the charge. The amendment is therefore unnecessary.
Finally, amendments 111 and 112 would change the circumstances in which the criminal courts charge would be imposed. The proposal to specify that an order to impose the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on the plea is unnecessary. The courts charge will be imposed on all adult offenders convicted of an offence and will therefore come into play only once a verdict has been reached on whether the defendant is guilty or not guilty. So the charge will only be imposed long after the defendant has made a decision about the plea and only if he or she is found guilty.
There is also a proposal that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. Given that the charge will be enforced in the same way as existing financial impositions, we think it unlikely that the costs would exceed the charge. Moreover, it would be impossible for the court to anticipate how much enforcement activity will be required to enforce the amounts being imposed. For those reasons, that component of the amendment is both unnecessary and unworkable.
In addition, amendment 112 would exclude from the courts charge costs associated with any part of the hearing for which the defendant was not responsible. The Government take the view that it is reasonable to expect offenders to contribute to the costs incurred by the courts as a result of their actions. The charge will be imposed only on those convicted of an offence, and there is no logical rationale for charging offenders for the costs of some, but not all, of the proceedings that led to that decision. I remind the hon. Members that the charges will be set up to the cost reasonably attributable to the type of case, rather than being based on a costs calculation on each individual case, which would be time-consuming and impracticable.
Under amendment 112, the courts charge would not be imposed in relation to any appeal. The principle underlying our courts charging proposals is that offenders should be expected to bear some of the costs that have been incurred by the criminal courts as a result of their actions. The Government therefore take the view that it is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. However, I should stress that an offender who successfully appeals will not have to pay the charge. The amendment would insert a condition that the courts charge could not be imposed before a written means assessment had been carried out.
We already have systems in place to ensure that the court is provided with information about an offender’s means. The court uses this information when deciding whether and how much to impose for existing financial impositions. In future, the court will also be able to use this information to set the payment rate for the courts charge. Given that offenders will be able to apply to the court or fines officers to vary payment rates, we view the additional requirement proposed by amendment 112 as unnecessary.
The hon. Member for Hammersmith asked a number of questions about costs. Currently, about £50 million is spent on the enforcement of financial impositions each year. We have estimated that the criminal courts charge will cost an additional £20 million to enforce. We have modelled two illustrative sets of charges that are broadly based on the average cost for different types of case. We have used a lower set of charges limited to a maximum of £600 and a higher set of charges limited to maximum of £1,000. Those charges and the limits applied are purely illustrative. Exact levels will be informed by further analysis of the cost of each type of case at the point at which the charge is implemented. We expect the charge to be in the hundreds rather than thousands of pounds. We estimate that the policy has the potential to generate a net income of between £60 million and £85 million a year.
I will come back to the hon. Lady on that.
Of the financial impositions imposed in the first quarter of 2012, 58% were paid within 18 months of the imposition. I have given a significant number of the figures for which the hon. Member for Hammersmith has asked.
I am grateful to get some figures, but I am alarmed. If I heard correctly, the cost of enforcement for the new charge is £20 million, compared with the current cost of the national compliance and enforcement service of £49 million. It is expected to collect £60 million to £80 million—
So the figure is about three to four times higher. How does that compare with the sum collected at the moment? How much is collected by the expenditure of £49 million on the national compliance and enforcement service?
The hon. Gentleman seeks to play with figures to suit his arguments, which so far have been demolished. It seems to me, Mr Crausby, that when you deduct some £20 million from £85 million—even allowing for the fact that the £20 million is at current rates and the £85 million is at 2019-20 rates—there is still a significant gain to the taxpayer. For the reasons I have set out, I urge the hon. Gentleman to withdraw the amendment.
I am not trying to attack the Minister. I am trying to get information. Let us say the figure of £20 million, as opposed to £60 million to £85 million, is correct. I was asking for the figure which compares with £49 million, which is the current collection cost. How much a year is being collected by the expenditure of that £49 million? I would expect it to be proportionately larger because it is an additional charge.
I am happy to give those figures to the hon. Gentleman. He will appreciate that this is a debate specifically on the criminal courts charge. The figures I have are more in line with that rather than charges and costs of a broader variety. If he wants figures of another variety, I am more than happy to try and provide them to him.
I have heard what the Minister said. I am interested to find out what those figures are. I am happy to wait and see what they may be.
I think the proposal is a mistake. I very much doubt—I will eat my words if it is the case in a year or two—that the Government will collect £60 million to £85 million with the charge. I say that without having any further figures in front of me—I just think that the figure has been given on a wing and a prayer. The Department has been asked to go and rifle every cupboard and think of every ruse to try and achieve the savings target the Lord Chancellor has adopted. This latest ruse is scraping the bottom of a barrel that has already been fairly comprehensively scraped.
We do not say as a matter of principle that there should be no contribution at all. We have reservations about the fact that the Government’s proposal is a departure that will mean an individual paying for a process that is really part of due process. It is a constitutional requirement. The criminal justice system must function properly, fairly and timeously. That is not the responsibility of those caught up in it—that is the caveat.
I am listening carefully to the claim that the measure is a departure. Would the hon. Gentleman not agree that the welcome introduction of the victim surcharge back in 2007—now amended by the 2012 regulations—was in itself a departure because it introduced a fixed charge as part of the proceedings? If he concedes that principle, are we not arguing about detail rather than principle, as he suggests?
As always, the hon. Gentleman makes an attractive argument, but it leads us down a dangerous path. There were specific reasons for the provision to which he refers—I cannot remember them, but I suspect they had support on both sides of the House. It was part of the process that has gone on under both Governments—it started under the Labour Government —of putting the victim more centre stage in the criminal justice system, as well as being a practical redress. It is seen as a part of the punishment or part of the redress element. That is what it clearly is. The Government’s proposal is a money-raising scheme. I am afraid it is a Ponzi scheme—it is a scheme that looks like it is going to raise a lot of money but is probably not going to raise very much money at all.
I have two points to make. First, may I correct some figures I gave earlier? They are broadly along the same lines. The net income is in the range of £65 million to £80 million and not £60 million to £85 million as I had indicated. The charge will be enforced in the same way as existing financial penalties. We estimate that that will cost up to £20 million, as I said, in addition to the existing enforcement costs.
My second point—I will be brief by way of intervention—is that the hon. Gentleman says the measure is a money-raising thing, but the aim is to ensure that convicts and criminals take responsibility. They have done wrong. They are using the court system. We are trying to make them accountable and responsible, and to ensure that they contribute towards the costs of the court system. I do not think there is anything wrong in trying to make criminals more accountable.
All sorts of problems are outlined in our amendments, including the unintended consequences that may arise. We have gone through those and I do not intend to pursue that argument. I said that there was a caveat, not that we would vote against the clause. However, we will vote in favour of amendment 98 on discretion. We could continue, but we have had a fairly good canter around the principle of the charge, whether there will be extra money and what should be done with it. I do not accept the Minister’s argument, but we will not die in a ditch over the imposition of a court charge. However, we are concerned that this is once again government by decree. The Government are telling the courts what to do on an issue that is clearly within their competence and should be within their discretion. On that basis, I shall press amendment 98 to a Division.
‘(1A) A reasonable assessment of the defendant’s finances must be taken before a collection date for any court costs is decided.’.
I shall be brief. The Minister touched on this in his remarks earlier. He said he believes there is provision already for means assessment. It is a reasonable amendment and I ask him to accept it. I was inspired to table it by the hon. Member for South Swindon, who, on Second Reading, asked the Lord Chancellor:
“Will my right hon. Friend ensure that when this streamlined procedure is adopted, pre-hearing consultations take place with defendants about their ability to pay a fine? A proper written means test would enable realistic fines to be imposed, and to be much easier to collect than fines imposed by means of an exercise that would be theoretical without such information.”—[Official Report, 24 February 2014; Vol. 576, c. 55.]
That question was not knocked back by the Lord Chancellor—I think he said he would look at it. The argument against the amendment would be that it would be more bureaucratic, but I suspect that in the long run it will be beneficial. If I am right that the additional voluntary charge will be difficult to collect, the Government will be setting themselves less of a task if they set out with the best information about means and other circumstances.
In my earlier remarks, I ran through the sort of criteria that the Prosecution of Offences Act 1985 takes into consideration before a contribution to prosecution costs. I would expect to see the same sort of exercise in the Bill, not as to whether a charge should be made at all, because it may be compulsory, but as to what is a fair and reasonable level. I would then expect some of the other matters the Minister accepts to be taken into account, such as the cost of enforcement and whether part of it should be remitted. Those processes are in place for other types of financial penalty and I hope the Minister assures us that they will be in place in relation to his measure. There is no point in throwing good money after bad or in simply setting up large quantities of irrecoverable debt, which is what the Government seem to be doing. Will he give an undertaking and accept the amendment that there should be full attention to means?
The intention behind the amendment is understandable. An offender should be able to pay back the court’s charge at a rate that is affordable, given their individual circumstances. However, I am confident that the existing practices and legislation for the enforcement of court-ordered financial impositions, which will be extended to cover the enforcement of the criminal courts charge, serve the purpose the amendment seeks to achieve.
When an individual attends a hearing in the criminal courts, they are asked to provide information about their means. The courts also have the power to order convicted defendants to provide a statement of their assets and other financial circumstances. That information can enable the court to set an appropriate payment rate for the charge based on the offender’s income. The court can do that as part of making what is known as a collection order. It will be possible for the court to order that the full amount of the charge be recovered immediately from offenders who are able to pay. However, when an offender does not have sufficient means to pay at the point of imposition, they will be able to apply to pay by instalment. It is important to note that the onus is on the defendant to provide their means information to the court. If they fail to do so, the court is still ordinarily required to issue a collection order, which will outline payment terms for the charge, as courts do for all current impositions.
When an offender has provided information about their means to the court as requested, the court will be able to decide the payment terms for all impositions, including the courts charge. Even when that information is not available, the offender is able to contact a fines officer to present their means and agree a payment plan. In addition, an offender is able to contact a fines officer to request to vary the rate of payment if their circumstances change and they are no longer able to afford to pay at the rate initially set.
The intention behind the amendment might be to ensure that, when an offender has not provided information about their means, the court is obliged to make further inquiries of that offender. I think that gets the balance wrong. Offenders are given every opportunity to provide means information and the courts already have the power to request it, but the onus should be on offenders to provide that information. When offenders do not do so, I find it hard to see why we should stop the process of justice for the court to conduct a further investigation.
The enforcement process as carried out at the moment is all we need effectively to collect money owed to the court, and to take into consideration an offender’s finances in setting repayment terms for the criminal courts charge. I therefore ask the hon. Gentleman to withdraw his amendment.
I am grateful to the hon. Gentleman for referring to the question that I asked, which relates to this and to general issues about enforceability. I hear what the Minister says. He is right to outline the existing powers, but it seems that we need to look at how statutory declarations about earnings are made. With respect, I do not think the amendment can answer that, but the question is probably for another day. That is because, once that is done, sanctions could follow for a mis-declaration. My worry is that we could end up stoking up more unenforceable penalties if we do not cover root and branch and look again at how we obtain the information.
I am grateful to the hon. Gentleman, who, as a sentencer, can probably see more clearly than I or the Minister what the risks are in the proposal.
The problem occurs not only in the context of courts, but in child support and in many other areas of public life. I am sure that we all deal with constituents who are frustrated by it constantly. There are certain types of people—those who are self-employed, for example—from whom it is difficult to obtain means statements. However, we should not throw our hands up. We should not say, “Let us levy the fines and get on with it.” There has to be some credibility in the process.
We will talk about the collection process in a moment, so I will say no more now. I beg to ask leave to withdraw the amendment.
‘(6) Where there is more than one defendant the charge shall be equally divided between defendants.’.
I can deal with the amendment briefly. It is slightly delicately phrased; the wording appears to ignore the issue of means, which I have just been banging on about.
The significance of the amendment is that, particularly given the rather senatorial rhetoric of the Minister about recovering money at all costs, there may be a temptation to double-recover—that is to say, particularly if there are a number of defendants and if it is determined that they have means, that more-than-full-cost recovery could be attempted. The sums of money levied could cumulatively, if not from individual defendants, raise more money than the trial proceedings or hearings cost.
Earlier I gave all the caveats related to the fact that there may be parts of proceedings or costs of proceedings that are no fault of the defendant, innocent or guilty, but which arise due to the inefficiency of the court or because of genuine legal considerations. It would be troubling if the charge was seen as a cash cow rather than as a way of simply adding penalties to someone who had been found guilty.
I will not press the amendment to a vote, but in responding, perhaps the Minister can tell us what he intends to do where there are multiple defendants in a case. What will he do, for example, if a defendant was a tail-end Charlie and played only a minor part in the case? Will that be taken into consideration when a charge is levied? If a lot of the proceedings did not concern that particular defendant, for one reason or another, however the indictment is set out, are those all points of mitigation when imposing a charge?
The amendment seeks to divide the payment of criminal court costs between defendants where there are two or more defendants convicted by the courts during a single hearing. It would create unnecessary complexity and result in offenders who have committed identical offences paying different amounts. The Bill, as currently drafted, will mean that each offender will be liable to pay the criminal courts charge. The precise amount of charge will be a matter for secondary legislation. Although the power will exist to charge offenders less when they are convicted at the same time as other offenders, the expectation is that each offender will pay the full amount.
Perhaps the Minister is about to answer this point, but I do not know what is in his brief. Of course there is a point to be made on means, but I am talking about how much an individual defendant bears responsibility for the cost of a hearing. That is what the courts charge is. Is the Minister saying that, irrespective of whether I take up half an hour or three days of a week-long trial, I will pay the same amount? That seems grossly unfair.
We are trying to have a system that is properly enforceable without being unduly complicated. We feel that this system is the fairest approach. Perhaps there would be a case for the amendment if the scheme being designed related to the precise costs incurred in a particular case, but that is not what we are proposing. Such a scheme would be far more complex and costly to administer. Instead, the proposal is for the court to impose preset charge levels at the conclusion of a case. The fairer approach is for a defendant to be charged for the amount associated with their type of case. There can be a range of factors that result in multiple defendants being tried in the same proceedings. The current provisions will be simpler to operate and simpler for offenders and the public to understand, and they will be fairer. I note what the hon. Gentleman says, but I hope he will withdraw his amendment.
I am grateful to the hon. Gentleman for giving way. He is ever-patient. Could not his suggestions set an alarming precedent? When one is co-defending a case, one has to read the same amount of material and evidence. It may turn out that one’s respective client is a tail-end Charlie, but if we start differentiating, my worry is that it could start creeping into the fee system. That would not be a welcome development, bearing in mind that each defendant has to face the same evidence. We surely need to hold on to that equality.
I thought the hon. Gentleman was going to say that counsel’s attitude might be affected by the part they play in the trial, which would be adopting my argument about defendants who might be willing either to plead guilty or not to appeal in order to save themselves money. If we are talking about substantial costs, behaviour will be affected. My view is that the charges should be fair. He is perhaps knowingly pushing the analogy too far, but if he is right that the charges could affect the behaviour of professionals and the way in which the system works, it enhances my point that the Minister’s desperate search for cash might have unintended consequences. I think I heard the Minister say that he will go away and consider the matter. I take comfort from that, whether he said it or not.
I beg to ask leave to withdraw the amendment.
The amendment would do what it says on the tin: the courts charge would not apply to young offenders. I do not know whether the Minister is in a generous mood and feels like making a concession, but I think the amendment is sensible. I read out some statistics earlier, and I now have some more. A third of people in prison do not have a bank account, more than half have been rejected for a loan and prisoners are 10 times more likely to have borrowed from a loan shark, in addition to all the indices on debt and homelessness. That is true for the offender population generally. I do not have figures for under-21s, but I suspect I can say without fear of contradiction that the statistics are more severe. Young people caught up in the criminal justice system are disproportionately likely to come from care, broken homes or poor homes. They are very unlikely to be in a good position. We used the phrase “whistling in the wind” earlier, and it is even truer in this case. The youth court, or even adult courts when considering younger people, will take everything about the young person into consideration. Having to consider a compulsory charge on top of everything else seems unnecessary. For those practical and social reasons, I suggest that the Minister accepts the amendment.
The amendment would have the effect of changing the definition of prison for the purposes of remitting the criminal courts charge. Under the amendment, offenders aged 18, 19, 20 and 21 would be eligible to have their charge remitted during a sentence of detention or imprisonment, provided that a specified period of time had passed. The effect of the amendment would also be that for such offenders, that period of time would not begin on their release from detention or imprisonment, but from the date that the last courts charge was imposed for the offender, or from the date they were last convicted of an offence.
The effect would be to start the clock for the limited payment period for the charge earlier. That would mean that offenders under the age of 22 could potentially have their charge cancelled sooner than offenders aged 22 and over, who are serving time in prison or a detention centre. The intention behind the hon. Gentleman’s amendment appears to be to exempt offenders aged up to 21 from having to pay the criminal courts charge where they are given custodial sentences. Whatever the case, acceptance of the amendment tabled and any amendment intended to have the effect I have just outlined would create an over-complex system for the remission of the criminal courts charge.
I am not convinced that it is right to make it easier for young adult offenders who commit a serious crime resulting in a custodial sentence not to pay the charge. Such offenders would be released from custody to find that the repayment period for the charge had expired, while those who commit a crime with no custodial sentence would be required to pay back the charge once convicted. It could be that the hon. Members are concerned about the rehabilitation of such offenders. I agree that that is an important issue. Indeed, it is one that is reflected in the criteria for remission of the charge. If, after a certain period of time, the individual owing the charge has complied with the payment and desisted from reoffending, the court will be able to cancel the outstanding balance of debt.
The Government are alive to the complex and varied needs of young adult offenders. However, it makes sense that adults are required to pay back the cost that they impose on society. The criminal courts charge and the period for its repayment will be applied to all convicted adult offenders equally. I ask the hon. Gentleman to withdraw his amendment.