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