It's not all doom and gloom in court. Indeed there are times when it's difficult to keep a straight face. One lady - many years ago - found it absolutely impossible. Unfortunately, she was the defendant!
We were sitting in the fines court and I was in the chair. The lady in question was up before us for non-payment of a fine for no TV licence imposed about 18 months previously, with payments ordered at the rate of £3 a week, with no payments at all having been made. This was well before the days of Fines Enforcement Officers, so it was for us to decide what to do next. Summoned by the tannoy, she entered court beaming from ear to ear. She continued to beam as she confirmed her name, age and date of birth; agreed still smiling that the fine was hers and that she had made no payments. Smilingly she explained to us that what with one thing and another, not to mention what she owed on the club, she simply hadn't got around to making any payments.
I and my colleagues were not impressed with her lighthearted attitude to her predicament. I decided it was time for a few words. "I don't think you realise," I said sternly, "what a serious situation you are in. From what you have said, we could very easily conclude that you were culpably neglecting this fine, or even wilfully refusing to pay it. If that were our decision, we could send you to prison. -TODAY!"
"I know," she stammered, still grinning. "I'm scared shitless."
Appearances, I learned that day, can be deceptive.
Wednesday, 25 April 2007
Tuesday, 24 April 2007
Prison places
Listening to Today this morning on Radio 4, I heard Lord Woolf, the former Lord Chief Justice, suggest that the Sentencing Guidelines Council should be treated in a similar way to the Bank of England. Just as the Bank is tasked with ensuring that the inflation rate does not rise beyond a certain target ceiling set by government, so the SGC should be tasked with containing the prison population within a ceiling set by government. As with inflation, so how the SGC achieved its target would be a matter for those who manage it.
Whilst on the face of it this suggestion has a certain appeal, it seems to be endorsing the popular view in the media and among the public, that the prisons are full because judges and magistrates are too ready to send people there and for too long, rather than considering the possibility that the prisons are full because the Home Office has failed to provide sufficient capacity.
The accusation that we make too much use of custody is very frequently repeated these days, although most if not all of us can remember that only a couple of years ago we were said to be 'too soft' on offenders. The media, it seems, can indeed have its cake and eat it!
If you do not work within the criminal court system, you are probably unaware of just how hard an offender actually has to work in order to attract a custodial sentence. Let me enlighten you.
Broadly speaking, there are four bands of sentencing for magistrates' courts.
1. A fine or a discharge;
2. A community based penalty (probation, curfew, unpaid work, drug/alcohol treatment programme);
3. A custodial sentence of up to 6 months
4. Committal to the Crown Court for a longer custodial sentence.
The process of sentencing an individual starts at the lowest band, and reviewing the nature of the offence,we ask "Is a fine or a discharge (conditional or absolute) appropriate for an average offence of this type?" If the answer is "Yes", we look at any aggravating features to see whether they would raise the 'tariff'. If there are none, then a fine/discharge is the only sentence available to us.
However, if the aggravating features do make it too serious for a fine, or if the offence they have committed is in itself more serious, then we would ask "Is it serious enough for a community penalty?" If we conclude that that is the case, we must now place the offence in either the low, medium or high range of community penalty and sentence accordingly. Thus, a low level might warrant 60 hours of unpaid work, a medium 150 hours and a high 250 hours.
Next are those offences which (of themselves, or in the circumstances) appear to us to be "so serious that only custody is appropriate". Nobody can be sent to prison if we are not able to spell out in open court why we believe that this threshold has been crossed. Moreover, if our reasoning is faulty then the sentence will be overturned on appeal.
As if that were not sufficient to ensure that only those people deserving of custody are sent to prison, under the Criminal Justice Act 2003, having decided on custody, we must further ask ourselves "Can this sentence be suspended with requirements attached, or must custody be immediate?" And if we decide that immediate custody is needed we have to give reasons for our decision in open court, and if those reasons are faulty, the sentence will be suspended on appeal.
My experience over many years now, sitting with many different colleagues, is that magistrates do conscientiously apply this structured approach to sentencing and only send offenders to prison when no other sentence is appropriate.
Should we, then, be exhorted to send fewer people to custody at all costs? And if so, what should we do instead?
Whilst on the face of it this suggestion has a certain appeal, it seems to be endorsing the popular view in the media and among the public, that the prisons are full because judges and magistrates are too ready to send people there and for too long, rather than considering the possibility that the prisons are full because the Home Office has failed to provide sufficient capacity.
The accusation that we make too much use of custody is very frequently repeated these days, although most if not all of us can remember that only a couple of years ago we were said to be 'too soft' on offenders. The media, it seems, can indeed have its cake and eat it!
If you do not work within the criminal court system, you are probably unaware of just how hard an offender actually has to work in order to attract a custodial sentence. Let me enlighten you.
Broadly speaking, there are four bands of sentencing for magistrates' courts.
1. A fine or a discharge;
2. A community based penalty (probation, curfew, unpaid work, drug/alcohol treatment programme);
3. A custodial sentence of up to 6 months
4. Committal to the Crown Court for a longer custodial sentence.
The process of sentencing an individual starts at the lowest band, and reviewing the nature of the offence,we ask "Is a fine or a discharge (conditional or absolute) appropriate for an average offence of this type?" If the answer is "Yes", we look at any aggravating features to see whether they would raise the 'tariff'. If there are none, then a fine/discharge is the only sentence available to us.
However, if the aggravating features do make it too serious for a fine, or if the offence they have committed is in itself more serious, then we would ask "Is it serious enough for a community penalty?" If we conclude that that is the case, we must now place the offence in either the low, medium or high range of community penalty and sentence accordingly. Thus, a low level might warrant 60 hours of unpaid work, a medium 150 hours and a high 250 hours.
Next are those offences which (of themselves, or in the circumstances) appear to us to be "so serious that only custody is appropriate". Nobody can be sent to prison if we are not able to spell out in open court why we believe that this threshold has been crossed. Moreover, if our reasoning is faulty then the sentence will be overturned on appeal.
As if that were not sufficient to ensure that only those people deserving of custody are sent to prison, under the Criminal Justice Act 2003, having decided on custody, we must further ask ourselves "Can this sentence be suspended with requirements attached, or must custody be immediate?" And if we decide that immediate custody is needed we have to give reasons for our decision in open court, and if those reasons are faulty, the sentence will be suspended on appeal.
My experience over many years now, sitting with many different colleagues, is that magistrates do conscientiously apply this structured approach to sentencing and only send offenders to prison when no other sentence is appropriate.
Should we, then, be exhorted to send fewer people to custody at all costs? And if so, what should we do instead?
Sunday, 15 April 2007
Detention without charge or trial
I read in The Independent yesterday that a recent survey by Communicate Research has shown that 28% of Labour MPs would like to see the 28 day limit for police to detain terror suspects increased to 60 days, whilst a further 36% would like it raised to 90 days.
Let's just put that into context. Magistrates' courts deal with 95% of all criminal cases in this country each year. The maximum period of custody that we can impose for a single offence is six months. However, if the defendant has pleaded guilty to that offence at the first opportunity, then we must allow credit for that guilty plea and reduce the sentence by one third. So for a guilty plea, four months would be the maximum.
These sentences are for offences at the top end of seriousness for all those that we deal with. That may be because the offence itself is particularly nasty, or because the defendant has so many previous convictions for similar offences that the court can see no option but to impose the maximum available to it.
But a custodial sentence of 4 or 6 months does not mean that the offender spends 4 or 6 months in prison. Only half of the sentence is served in prison; the offender is then released on licence to complet the remainder of the sentence in the community. If he/she complies with the terms of the licence, that's that. Only if he/she breaches the terms of the licence are they returned to prison. So what?
So this; a four month sentence is equal to 120 days, and a six month sentence to 180 days. The time spent actually in prison will be 60 days for a four month sentence and 90 days for a six month. What these MPs are saying, therefore, is that they are happy for people to be locked up without charge and without due process for the equivalent of the maximum time that the magistrates' courts can impose for their most serious offences. Call me an old softy if you like, but I find that attitude scary.
Let's just put that into context. Magistrates' courts deal with 95% of all criminal cases in this country each year. The maximum period of custody that we can impose for a single offence is six months. However, if the defendant has pleaded guilty to that offence at the first opportunity, then we must allow credit for that guilty plea and reduce the sentence by one third. So for a guilty plea, four months would be the maximum.
These sentences are for offences at the top end of seriousness for all those that we deal with. That may be because the offence itself is particularly nasty, or because the defendant has so many previous convictions for similar offences that the court can see no option but to impose the maximum available to it.
But a custodial sentence of 4 or 6 months does not mean that the offender spends 4 or 6 months in prison. Only half of the sentence is served in prison; the offender is then released on licence to complet the remainder of the sentence in the community. If he/she complies with the terms of the licence, that's that. Only if he/she breaches the terms of the licence are they returned to prison. So what?
So this; a four month sentence is equal to 120 days, and a six month sentence to 180 days. The time spent actually in prison will be 60 days for a four month sentence and 90 days for a six month. What these MPs are saying, therefore, is that they are happy for people to be locked up without charge and without due process for the equivalent of the maximum time that the magistrates' courts can impose for their most serious offences. Call me an old softy if you like, but I find that attitude scary.
Saturday, 14 April 2007
It's certainly change, but is it progress?
The season for bench half-year meetings has come around again, and it set me reflecting on the way things have changed in the fourteen years that I have been a magistrate. Back in 1993 we, like all metropolitan benches, were an independent entity, a petty sessional division serving our local community. The focus on the needs of the local community were reinforced by the fact that our PSD boundaries were identical to the borough boundaries (or as that appalling neologism would have it, coterminous).
The regulation of the court business was in th hands of the bench chairman and a small committee of senior magistrates, supported and guided by the clerk to the justices. The bench chairman was responsible for the magistrates; the clerk to the justices managed the staff and the facilities. It all worked very smoothly and we all felt part of the team. In addition the Advisory Committee dealt with any serious conduct or disciplinary matters, and sitting above all was the illustrious person of the Chancellor of the Duchy of Lancaster, by whom we were all appointed.
It was not long before things began to change. The then Lord Chancellor, Lord McKay, was not happy to have so many individual entities all ploughing their own furrow, and one could see his point - up to a point. Despite the best efforts of the Magistrates' Association to promote the idea of consistency in sentencing across England and Wales, most benches had their own 'black book' of recommended penalties for the whole range of common offences. But I suspect that he was also mindful of the fact that all of those individual clerks to the justices represented a powerful group when not happy with government proposals. Reducing their number would commensurately reduce their power. Officially, however, what concerned the Lord Chancellor was that financially it was wasteful and inefficient for his department to have to deal all the time with so many small individual PSDs.
The solution proposed was that PSDs should be encouraged to amalgamate with their neighbours and form larger, more efficient units. As I recall, sixty to eighty such groupings were thought to be appropriate. Some PSDs took the view that if that was what the Lord Chancellor required, then he should deal with it, not them. Others, my own included, took the view that if you jumped rather than waiting to be pushed, you might negotiate a better deal from the LCD. And so we amalgamated. However, the much vaunted efficiencies and cost savings were not readily apparent, because - naturally - there had to be a new level of management to run the new amalgamated body. And that very quickly came to cost more than had been saved, in addition to slowing down decisions, which now had to be discussed at length in committee, instead of over coffee or lunch in the Justices' Clerk's office. The decision makers, moreover, were now only available to and answerable to the magistrates themselves through intermediaries (MCC members) and we began to feel the effect in a reduction in involvement and consultation.
Of course, progress once initiated must be maintained and soon gathers momentum. In 1997 there was a change of government, and with it a change of Lord Chancellor. Lord Irvine spotted that if fewer justices' clerks were easier to control, then fewer still would be even easier! Forget sixty to eighty amalgamated bodies; henceforth PSDs should be coterminous (It is Lord Irvine who saddled us with this awful word) with police authority boundaries, and by considering the Met and the City of London police to be one for these purposes, declared that there would shortly be just forty two bodies for the whole of England & Wales. Oh, and PSDs would henceforth be known as PSAs. Now forgive me for seeming cynical, but when a government feels that it is worth spending time on changing a single word, I want to know why. Well, the reason was simple. PSD boundaries can only be changed by legislation, whereas the new Petty Sessional Areas could have their boundaries changed (tampered with, if you prefer) administratively. He also suggested that it would be far tidier if he removed responsibility for magistrates in the County Palatine from the Chancellor of the Duchy of Lancaster, and took it over himself. Unfortunately/fortunately, it transpired that due to the foresight of a Greater Manchester MP at the time of local government reorganisation, this could only be achieved by primary legislation, so it was shelved for a later date.
That later date arrived a couple of years ago when the government decided to combine the magistracy and the Courts Service into a new amalgamated body, HMCS. So having undergone one amalgamation in 1995, and another in 1997, we then faced a third. Each one has increased the distance between those who decide what shall happen and those who have to carry it out, be the latter magistrates, legal advisors, court managers or whatever. Justice may still be local in its delivery - though that is debatable - it is far from local in its management and accountability.
It must be acknowledged that benefits to the community have indeed occurred during this process, though whether because of it I am not sure. Principle among the benefits are the much higher quality of training which is now routinely available to magistrates to fit them for their duties and keep them up to speed, and a much greater degree of consistency across England and Wales in patterns of sentencing. These are good things and we should be proud that we have achieved them.
But I have recently become conscious of a parallel, insidious process which has been running alongside the one I have described. We used to be concerned first and foremost with the delivery of justice in our deliberations. At our recent half-year meeting, however, the word 'justice' did not crop up once. Instead, our masters at Area speak solely of performance targets, of cost savings, and of 'business cases' as the basis for decisions. I fear that in the past fourteen years we have begun to lose sight of our primary purpose. And that is most definitely not a good thing.
The regulation of the court business was in th hands of the bench chairman and a small committee of senior magistrates, supported and guided by the clerk to the justices. The bench chairman was responsible for the magistrates; the clerk to the justices managed the staff and the facilities. It all worked very smoothly and we all felt part of the team. In addition the Advisory Committee dealt with any serious conduct or disciplinary matters, and sitting above all was the illustrious person of the Chancellor of the Duchy of Lancaster, by whom we were all appointed.
It was not long before things began to change. The then Lord Chancellor, Lord McKay, was not happy to have so many individual entities all ploughing their own furrow, and one could see his point - up to a point. Despite the best efforts of the Magistrates' Association to promote the idea of consistency in sentencing across England and Wales, most benches had their own 'black book' of recommended penalties for the whole range of common offences. But I suspect that he was also mindful of the fact that all of those individual clerks to the justices represented a powerful group when not happy with government proposals. Reducing their number would commensurately reduce their power. Officially, however, what concerned the Lord Chancellor was that financially it was wasteful and inefficient for his department to have to deal all the time with so many small individual PSDs.
The solution proposed was that PSDs should be encouraged to amalgamate with their neighbours and form larger, more efficient units. As I recall, sixty to eighty such groupings were thought to be appropriate. Some PSDs took the view that if that was what the Lord Chancellor required, then he should deal with it, not them. Others, my own included, took the view that if you jumped rather than waiting to be pushed, you might negotiate a better deal from the LCD. And so we amalgamated. However, the much vaunted efficiencies and cost savings were not readily apparent, because - naturally - there had to be a new level of management to run the new amalgamated body. And that very quickly came to cost more than had been saved, in addition to slowing down decisions, which now had to be discussed at length in committee, instead of over coffee or lunch in the Justices' Clerk's office. The decision makers, moreover, were now only available to and answerable to the magistrates themselves through intermediaries (MCC members) and we began to feel the effect in a reduction in involvement and consultation.
Of course, progress once initiated must be maintained and soon gathers momentum. In 1997 there was a change of government, and with it a change of Lord Chancellor. Lord Irvine spotted that if fewer justices' clerks were easier to control, then fewer still would be even easier! Forget sixty to eighty amalgamated bodies; henceforth PSDs should be coterminous (It is Lord Irvine who saddled us with this awful word) with police authority boundaries, and by considering the Met and the City of London police to be one for these purposes, declared that there would shortly be just forty two bodies for the whole of England & Wales. Oh, and PSDs would henceforth be known as PSAs. Now forgive me for seeming cynical, but when a government feels that it is worth spending time on changing a single word, I want to know why. Well, the reason was simple. PSD boundaries can only be changed by legislation, whereas the new Petty Sessional Areas could have their boundaries changed (tampered with, if you prefer) administratively. He also suggested that it would be far tidier if he removed responsibility for magistrates in the County Palatine from the Chancellor of the Duchy of Lancaster, and took it over himself. Unfortunately/fortunately, it transpired that due to the foresight of a Greater Manchester MP at the time of local government reorganisation, this could only be achieved by primary legislation, so it was shelved for a later date.
That later date arrived a couple of years ago when the government decided to combine the magistracy and the Courts Service into a new amalgamated body, HMCS. So having undergone one amalgamation in 1995, and another in 1997, we then faced a third. Each one has increased the distance between those who decide what shall happen and those who have to carry it out, be the latter magistrates, legal advisors, court managers or whatever. Justice may still be local in its delivery - though that is debatable - it is far from local in its management and accountability.
It must be acknowledged that benefits to the community have indeed occurred during this process, though whether because of it I am not sure. Principle among the benefits are the much higher quality of training which is now routinely available to magistrates to fit them for their duties and keep them up to speed, and a much greater degree of consistency across England and Wales in patterns of sentencing. These are good things and we should be proud that we have achieved them.
But I have recently become conscious of a parallel, insidious process which has been running alongside the one I have described. We used to be concerned first and foremost with the delivery of justice in our deliberations. At our recent half-year meeting, however, the word 'justice' did not crop up once. Instead, our masters at Area speak solely of performance targets, of cost savings, and of 'business cases' as the basis for decisions. I fear that in the past fourteen years we have begun to lose sight of our primary purpose. And that is most definitely not a good thing.
Wednesday, 11 April 2007
Beyond Reasonable Doubt
A day in court today. We were in the trials court with two cases listed, one for half a day, the other for four hours, which takes some doing in a six and a half hour court day, even without the complications of a work to rule.
That problem at least was resolved when the advocates asked for time for further discussion before starting trial 1. The outcome was that, for no clear reason, the CPS agreed to accept the defence's offer of hands up to breach of the peace and bind over. We remarked on the cracked trial form that we had not been enlightened as to why this could not have been done earlier in the history of the case, though I doubt that will have any great impact on the parties.
The second trial developed into one of those cases where you believe one thing but decide another. Having heard all the evidence it was clear that the prosecution case probably reflected matters as they had occurred. Unfortunately, it didn't take the case beyond 'probably', and so the defendant was acquitted. The blame (if such was the case) couldn't be laid at the door of the CPS; it was just the way things panned out on the day. I console myself on such occasions - which, to be fair don't occur that often - with the thought that if my suspicions are correct, then an acquittal is hardly likely to bring the defendant to a 'Road to Damascus' turning away from a life of offending, in which case he/she will be back. Justice deferred rather than justice denied, as it were.
That problem at least was resolved when the advocates asked for time for further discussion before starting trial 1. The outcome was that, for no clear reason, the CPS agreed to accept the defence's offer of hands up to breach of the peace and bind over. We remarked on the cracked trial form that we had not been enlightened as to why this could not have been done earlier in the history of the case, though I doubt that will have any great impact on the parties.
The second trial developed into one of those cases where you believe one thing but decide another. Having heard all the evidence it was clear that the prosecution case probably reflected matters as they had occurred. Unfortunately, it didn't take the case beyond 'probably', and so the defendant was acquitted. The blame (if such was the case) couldn't be laid at the door of the CPS; it was just the way things panned out on the day. I console myself on such occasions - which, to be fair don't occur that often - with the thought that if my suspicions are correct, then an acquittal is hardly likely to bring the defendant to a 'Road to Damascus' turning away from a life of offending, in which case he/she will be back. Justice deferred rather than justice denied, as it were.
Tuesday, 10 April 2007
Hard cases make bad law
The old legal saw holds just as true today as it ever did. So It concerns me to hear on Radio 4 this morning that "Sara's Law" is to be piloted in four areas of England. My concerns cover a number of different considerations.
Having been on the receiving end of a number of Home Office 'pilots' over the years, I have detected a disturbing trend; unless they prove unexpectedly expensive, eventually they always get rolled out nationally, whatever their merits or demerits. I'm worried that this is simply a way of softening up opposition by introducing the law on a creeping basis.
I'm reminded of the appalling scenes in the aftermath of the Sara Payne trial, where incensed parents marched through local estates protesting against the rumoured presence there of a paedophile (or in one celebrated instance, a paediatrician), armed with inflammatory banners and placards, chanting slogans - and dragging their young children along with them. The thought of such episodes being repeated around the country fills me with horror.
I also give weight to the belief of the Probation Service, Barnado's and the NSPCC that such a law would actually increase the danger to children rather than protect them. Why? Because the greatest degree of protection for children comes from the authorities knowing the exact whereabouts of a sex offender, and monitoring and supervising that offender very closely. The risk is that a Sara's law would encourage such people to abscond and go underground, and so unmonitored to represent a far greater danger. At the pilot stage, the temptation would be to move out of the pilot area. So the risk is not minimised; it is simply exported to another community.
The setting of a precedent also disturbs me. If the local community is entitled to know that there is a paedophile living in their midst, why not a murderer released on licence? Or a rapist? A sneak thief who preys on the elderly? Anyone convicted of anything, indeed? And then what happens to the goverment's much vaunted and much to be applauded emphasis on the need for the criminal justice system to rehabilitate offenders?
Finally - at least at the moment - what about mistaken identity? Unless details of the name, address, and photograph of the offender are made freely available, the danger exists that stereotyping will lead to perfectly innocent but mildly eccentric 'loners' being identified by the vigilante element as 'him', and suffering accordingly.
And on what basis is a Sara's law felt to be necessary? The actual level of offences against children by paedophile offenders outside the family is, I believe, no higher than it was during my own childhood sixty-odd years ago; what has changed is the perceived level, fuelled by ongoing media interest. I fear such a law will only exacerbate the paranoia.
Having been on the receiving end of a number of Home Office 'pilots' over the years, I have detected a disturbing trend; unless they prove unexpectedly expensive, eventually they always get rolled out nationally, whatever their merits or demerits. I'm worried that this is simply a way of softening up opposition by introducing the law on a creeping basis.
I'm reminded of the appalling scenes in the aftermath of the Sara Payne trial, where incensed parents marched through local estates protesting against the rumoured presence there of a paedophile (or in one celebrated instance, a paediatrician), armed with inflammatory banners and placards, chanting slogans - and dragging their young children along with them. The thought of such episodes being repeated around the country fills me with horror.
I also give weight to the belief of the Probation Service, Barnado's and the NSPCC that such a law would actually increase the danger to children rather than protect them. Why? Because the greatest degree of protection for children comes from the authorities knowing the exact whereabouts of a sex offender, and monitoring and supervising that offender very closely. The risk is that a Sara's law would encourage such people to abscond and go underground, and so unmonitored to represent a far greater danger. At the pilot stage, the temptation would be to move out of the pilot area. So the risk is not minimised; it is simply exported to another community.
The setting of a precedent also disturbs me. If the local community is entitled to know that there is a paedophile living in their midst, why not a murderer released on licence? Or a rapist? A sneak thief who preys on the elderly? Anyone convicted of anything, indeed? And then what happens to the goverment's much vaunted and much to be applauded emphasis on the need for the criminal justice system to rehabilitate offenders?
Finally - at least at the moment - what about mistaken identity? Unless details of the name, address, and photograph of the offender are made freely available, the danger exists that stereotyping will lead to perfectly innocent but mildly eccentric 'loners' being identified by the vigilante element as 'him', and suffering accordingly.
And on what basis is a Sara's law felt to be necessary? The actual level of offences against children by paedophile offenders outside the family is, I believe, no higher than it was during my own childhood sixty-odd years ago; what has changed is the perceived level, fuelled by ongoing media interest. I fear such a law will only exacerbate the paranoia.
Monday, 9 April 2007
To set the tone.....
Well, every blog has to start somewhere, so let's kick off with a topic that is raising my hackles just at the moment. The 1st April saw the implementation of a piece of legislation which hardly any of us had spotted earlier, and about which I am not at all happy. Isn't it appropriate, by the way, how many of a government's harebrained wheezes have an April 1st start date!
Anyway, this April 1st brought the Victim Surcharge into being. The government is committed to improving victim support services in England & Wales, and to this end has decreed that henceforth we, the judiciary, shall impose a £15 surcharge on any offender whom we fine, the proceeds going to said improvement of services. The surcharge is to be imposed irrespective of the nature and seriousness of the offence (so long as it is dealt with by way of a fine), irrespective of whether the defendant pleads guilty or is convicted after trial, irrespective of the defendant's previous offending history, and irrespective of his or her ability to pay the surcharge.
I mention all of those factors because each one is a factor that we are required to take into account when passing sentence on an offender. We take them into account because justice demands that each case is dealt with on the basis of its individual circumstances and those of the offender. But the VS (as I shall now refer to it) is not about such things. The VS is about parting people in no position to argue from £15 of their money alongside the court's legitimate business of punishing them for their offending. In other words, the VS is not a punishment; it is a tax. And I don't feel that it is any part of my judicial duty to collect tax payments on behalf of the Treasury.
Not only is it a tax, but it is an arbitrary and capricious one. The briefing that we have had from our Head of Legal Services, is that the key word here is 'fine'. If we fine a defendant, then we must also surcharge them. If the financial penalty takes the form of ordering them to pay compensation to their victim rather than a fine, then no surcharge is involved. If they accept a fixed penalty notice and don't come to court - no surcharge. Default on the fixed penalty and get brought to court - surcharge. If your offence is more serious and requires a community based penalty or custody rather than a fine, then again there is no surcharge. And if the offence is down at the bottom end of seriousness, so that a condional discharge is judged to be more apprpriate than a fine, again there is no surcharge. Now you may be able to discern a logical thread running through all that, but I have to admit that I cannot.
And it gets better. Quite properly, the courts these days operate on the principle of openness and transparency, so we state in simple (hopefully) language what we are doing and why we are doing it at each stage of a case where a decision has to be made. So we shall, of course, explain to the defendant that in addition to the fine that we are imposing and the contribution we are requiring him/her to make to the cost of prosecution, we are also imposing the sum of £15 to improve victim support services. I anticipate a vociferous response from the more articulate defendant, and a response approaching contempt of court from the less articulate! It is not clear, incidentally, whether we can offset the impact of the VS by a reduction in fine or costs of £15 where the defendant is of limited means, and so the penalty has had to be set at a level which can be paid; for those on benefits, the VS may well carry the penalty up to a level which they will be unable to pay and so then we may have to treat them as defaulters, who can at the end of the day be jailed for non-payment.
Oh, and in case you are thinking that if I feel so strongly I should simply refuse to impose the VS in cases that come before me and my colleagues, on appointment to the Bench, I swore the judicial oath by which I committed myself to apply and uphold the laws which parliament enacts. So my options are 1) impose the VS or 2) resign from the magistracy.
I'd be very interested to know what other people think
Anyway, this April 1st brought the Victim Surcharge into being. The government is committed to improving victim support services in England & Wales, and to this end has decreed that henceforth we, the judiciary, shall impose a £15 surcharge on any offender whom we fine, the proceeds going to said improvement of services. The surcharge is to be imposed irrespective of the nature and seriousness of the offence (so long as it is dealt with by way of a fine), irrespective of whether the defendant pleads guilty or is convicted after trial, irrespective of the defendant's previous offending history, and irrespective of his or her ability to pay the surcharge.
I mention all of those factors because each one is a factor that we are required to take into account when passing sentence on an offender. We take them into account because justice demands that each case is dealt with on the basis of its individual circumstances and those of the offender. But the VS (as I shall now refer to it) is not about such things. The VS is about parting people in no position to argue from £15 of their money alongside the court's legitimate business of punishing them for their offending. In other words, the VS is not a punishment; it is a tax. And I don't feel that it is any part of my judicial duty to collect tax payments on behalf of the Treasury.
Not only is it a tax, but it is an arbitrary and capricious one. The briefing that we have had from our Head of Legal Services, is that the key word here is 'fine'. If we fine a defendant, then we must also surcharge them. If the financial penalty takes the form of ordering them to pay compensation to their victim rather than a fine, then no surcharge is involved. If they accept a fixed penalty notice and don't come to court - no surcharge. Default on the fixed penalty and get brought to court - surcharge. If your offence is more serious and requires a community based penalty or custody rather than a fine, then again there is no surcharge. And if the offence is down at the bottom end of seriousness, so that a condional discharge is judged to be more apprpriate than a fine, again there is no surcharge. Now you may be able to discern a logical thread running through all that, but I have to admit that I cannot.
And it gets better. Quite properly, the courts these days operate on the principle of openness and transparency, so we state in simple (hopefully) language what we are doing and why we are doing it at each stage of a case where a decision has to be made. So we shall, of course, explain to the defendant that in addition to the fine that we are imposing and the contribution we are requiring him/her to make to the cost of prosecution, we are also imposing the sum of £15 to improve victim support services. I anticipate a vociferous response from the more articulate defendant, and a response approaching contempt of court from the less articulate! It is not clear, incidentally, whether we can offset the impact of the VS by a reduction in fine or costs of £15 where the defendant is of limited means, and so the penalty has had to be set at a level which can be paid; for those on benefits, the VS may well carry the penalty up to a level which they will be unable to pay and so then we may have to treat them as defaulters, who can at the end of the day be jailed for non-payment.
Oh, and in case you are thinking that if I feel so strongly I should simply refuse to impose the VS in cases that come before me and my colleagues, on appointment to the Bench, I swore the judicial oath by which I committed myself to apply and uphold the laws which parliament enacts. So my options are 1) impose the VS or 2) resign from the magistracy.
I'd be very interested to know what other people think
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