The strange, slow death of the criminal courts charge
The criminal courts charge is, or was, one of the less well thought-through criminal justice reforms of recent years. Since April this year, courts have had a duty under section 21A of the Prosecution of Offences Act 1985 to impose a fixed charge “in respect of relevant court costs” on those convicted of offences.
When I say “fixed”, I mean it: regulations set out in a table the amount courts must charge, regardless of the convicted defendant’s means. Notably, the charge for being found guilty after a trial (e.g. £520 for a minor offence in the Magistrates’ Court) was much more than for pleading guilty (£150)—a situation that risked pressurising poor defendants into pleading guilty solely to cut their losses. That’s obviously undesirable, and raises questions about the fairness of trials in our courts. For that reason among others the Commons Justice Committee last month recommended the early abolition of the charge. The new Lord Chancellor Michael Gove’s decision to do just that has been broadly and warmly welcomed.
But it’s an odd sort of “abolition”—for two reasons.
First, the regulations “abolishing” the charge don’t quite abolish it. The Justice Committee had said (para. 38 of its report)
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 … make it impossible to abolish it without primary legislation to repeal Part 2A of the Prosecution of Offences Act 1985. … Pending any such repeal a similar effect could be achieved by … replacing the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 with new regulations setting out radically reduced levels of charge …
I’m not sure it’s quite right to say the Act requires the Lord Chancellor to set amounts for the charge. But it certainly assumes he will. Section 21A(1) of the 1985 Act says a court
must … order a person convicted of an offence to pay a charge in respect of relevant court costs
and section 21C says
A charge ordered to be paid under section 21A must be of an amount specified by the Lord Chancellor by regulations.
So courts must impose these charges, by law; but they must do so in amounts set by the Lord Chancellor.
Repealing these provisions would have taken some Parliamentary time, and required a bill with its attendant debate; something ministers seem increasingly unkeen on. It’d also have been mildly embarrassing. To be fair to the government, it would have meant delay in ending the charge.
So Michael Gove’s lawyers have come up with a quick and dirty fix. The new regulations, by omitting the Schedule containing the table mentioned earlier, just delete the amount of any charge courts must impose. As of Christmas Eve, an Act of Parliament will still on its face require courts to impose charges; but it also requires them to do something impossible, since they “must” charge amounts that are no longer provided for. The charge will be like a buggy bit of code that forces a computer into a must/can’t, must/can’t loop. Judges and court legal advisers will have to patch the problem by forgetting about charges that can’t in practice be imposed.
Some have questioned whether Michael Gove actually has the legal power to do something as odd and messy as this. His department has drafted a memorandum explaining why it thinks he can (see para. 3.2; thanks to Rich Greenhill for drawing it to my attention). This is to ward off criticism from Parliament’s Joint Committee on Statutory Instruments or “JCSI”, which tells ministers off for any doubtful, unusual or unexpected use of legislative power.
Alternatively he could, as the Commons committee suggested, have reduced the charge in all cases to nothing. The disadvantage would have been that courts would have had to go through the farcical rigmarole of announcing and imposing a non-existent charge.
This, though, is not the only question about the charge’s odd death. There’s also a question about its timing. To understand it, we have to know some nerdy detail about how regulations are scrutinised by Parliament.
The amending regulations were made on December 2, laid before Parliament the following day, and come into force on Christmas Eve. The reason for that slight delay is something called the 21-day rule.
This is not a law, but a rule of Parliamentary practice according to which “negative resolution procedure” regulations like these (I’ll explain that another day) should generally be laid before Parliament, and sent to the JCSI, at least 21 days before they’re due to come into force. Michael Gove’s “abolition” regulations comply precisely with the 21-day rule, since they come into force on the 22nd day after they were laid before Parliament. Fine. Gove’s getting rid of this charge as soon as he can.
Except that he’s not. As I said, the 21-day rule is not law. Everyone expects government departments will have to breach it from time to time for various reasons, and in fact they often do. Here’s an example from earlier this year of DCLG explaining to the JCSI why some parking regulations had to breach it (see para. 3).
There would have been good reason for the Ministry of Justice to breach the 21-day rule: to spare from the criminal courts charge everyone convicted of an offence after the 2nd of December. If Michael Gove’s decided the charge is wrong, isn’t it wrong now? Yet today, courts were still imposing the charge. I saw several imposed at Westminister Magistrates’ Court.
The Ministry of Justice is at risk anyway of being told off by the JCSI for this odd use of powers. It should have gone in for a pound, and risked a telling-off for breach of the 21-day rule as well. Not that it was much of a risk. The charge will be so little lamented that I doubt there’d have been any fuss. For once, more ministerial high-handedness might have been welcome.
I don’t mind that the charge’s end is legally messy; but I do wonder why it’s not slightly quicker.