Criminal courts charge Contents

3Conclusions and recommendations

35.In most ordinary circumstances when dealing with the implementation of a new legislative provision or Government policy, six months would be a relatively short time after which to undertake an evaluation of its effectiveness. Section 55 of the Criminal Justice and Courts Act 2015 requires the Lord Chancellor to carry out a review of the operation of the charge three years after it has come into operation, which would be in 2018. As we explain above, the first authoritative officially-collated evidence of the financial impact of the criminal courts charge will not be available until 17 December 2015. We are not convinced that this will add greatly to the information already available affecting arguments for and against the charge, nor do we think it will add much to the wealth of anecdotal and reported evidence which is available on the impacts of the charge in the first months of its operation. The evidence we received from very senior members of the judiciary, as well as magistrates who deal day-to-day with the vast bulk of criminal cases, strikes us as particularly compelling. We therefore consider that our decision to look at the impact of the charge so early in its life is fully justified.

36.Leaving aside the questions of the levels of criminal courts charge imposed and the various other aspects of the charging regime, we have carefully considered the case in principle for imposing a charge on convicted offenders to recoup some of the costs of administration of the courts system. We explored these matters in some depth in evidence with witnesses. Having weighed the evidence on the principle of the criminal courts charge, we have grave misgivings about whether the charge as currently framed is compatible with the principles of justice.

37.Our grave misgivings about the principle of the criminal courts charge are compounded by the evidence concerning the operation of the regime which has been constructed to govern the imposition of the charge. Our principal concerns are as follows:

38.It appears to us that the statutory provisions governing the charge, by requiring the Lord Chancellor to make provision for a charge rather than simply empowering him to do so, have sought to entrench the charge and to make it impossible to abolish it without primary legislation to repeal Part 2A of the Prosecution of Offences Act 1985. We would not mourn the early abolition of the criminal courts charge and we recommend that legislation to effect that repeal should be brought forward. Pending any such repeal a similar effect could be achieved by the Lord Chancellor replacing the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 with new regulations setting out radically reduced levels of charge applicable to each type of case. If the Government decides to abolish the charge, we consider it should report to the House on the implications of abolition for the public finances.

39.Should the Government be unwilling to present the House with proposals to abolish or radically reduce the levels of the criminal courts charge, we recommend, as an irreducible minimum, that a double discretion should be accorded to sentencers, first, to decide whether to impose a criminal courts charge and then, secondly, to decide upon the amount of the charge in accordance with the circumstances of individual cases. Such a change would resolve all the problems which have arisen with the operation of the charge, with the exception of making a dent in the revenues expected to accrue from the charge, assuming of course that those expectations are met, which appears on the evidence we have received to be extremely unlikely. Given the statutory entrenchment of the charge already referred to, it seems to us that the introduction of double discretion for sentencers will also require primary legislation to amend the provisions governing the charge in Part 2A of the Prosecution of Offences Act 1985. In the event that the Government is unwilling to contemplate abolition of the charge, we recommend that legislation to enable sentencers to exercise a double discretion in relation to the charge be brought forward urgently.

© Parliamentary copyright 2015

Prepared 18 November 2015