My Lords, the amendments in this group deal with the Government’s proposal to require a charge to be levied on those convicted of offences, in addition to any financial or other penalty which may be levied on them. Characteristically, this would be a mandatory provision, judicial discretion thereby being further eroded, and the proposition is unsupported by an impact assessment. Out of thin air, Ministers pluck a figure of some £65 million for the estimated yield of this new charge, which will be calculated not merely on the costs of the individual case but on the overall costs of the court system.
As I pointed out at Second Reading, this sum is but a fraction of the vast amount of money owed under court orders: some £2 billion as at March 2013, two-thirds of it represented by unenforced confiscation orders. At that point, £420 million was outstanding by more than 12 months and there were no fewer than 1.2 million individual accounts outstanding. That puts into perspective the amount which this proposal would, perhaps, realise. Not all the figures that I have referred to relate to criminal matters. However, Liberty, to which I am indebted for a most informative briefing, averred that in the first quarter of this year £549 million was outstanding. Collection rates are poor across a range of orders, with 48% of fines and 35% of costs unpaid after 18 months. The Ministry of Justice does not even bother to collect statistics in relation to older debt.
There are serious difficulties with the Government’s policy, quite apart from the likelihood that, on present form, they will be very unlikely to recover anything like the amount ordered. Several of the difficulties are identified in Amendment 63AF, which seeks to prohibit an order where the court thinks it might affect a decision on how the accused pleads. This is clearly a serious matter. Defendants should not be deterred from advancing a defence on the grounds that they may be liable for not only punishment for the offence but what might be a significant amount to be paid under the provisions for a court charge. The amendment would deal with the issue of where enforcement costs are likely to mount to more than the charge, as enforcement costs could well be significant, and where the charge relates to any part of the hearing for which
the defendant is not responsible—for example, adjournments—or any appeal, as the charge would apply not just to the original trial but to any potential appeal. The deterrent effect could, again, come into play. Finally, the amendment would seek to preclude the operation of the charge if a written means assessment had not been carried out.
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Amendments 63AA, 63AJ, 63AK and 63AL seek to restore judicial discretion. This would replace the obligation laid down in respect of the magistrates’ courts, Crown Court and the Court of Appeal which, under the terms of the Bill, must make an order to levy the charge. It is quite improper, in my submission, for this to be made a binding obligation on the courts irrespective of the circumstances. Amendment 63AD would therefore require the court, before making such an order, to find it just and reasonable to do so in all the circumstances. Amendment 63AG would require the court to give reasons for imposing or, to be fair and balanced, not imposing an order. Amendment 63AE would require a reasonable assessment of the defendant’s finances before a collection date is decided. Finally and, again, reasonably, Amendment 63AH would prescribe that, where there is more than one defendant, any charge as a result of the case should be divided equally between the defendants and not be imposed just on one or less than the total number convicted. In addition, Amendment 63AA would restrict orders to defendants over the age of 21. That relates to our earlier discussion about the position of younger defendants but, in this case, it is not just those under the age of 18.
It should be borne in mind that the court currently has the power to award prosecution costs where it considers it just and reasonable to do so. However, the Bill’s provision allows no consideration of the defendant’s means or other issues such as health or family considerations. Data on the background of prisoners cited by Liberty indicate that a substantial proportion of prisoners—especially women—earn less than half the national average, with 64% in receipt of benefits. The profile of prisoners may be somewhat different from those who do not receive custodial sentences but there is nevertheless likely to be an approximate equation of these factors between the two categories. Even allowing for the possibility that the average might be different for defendants receiving non-custodial sentences, it is clear that mandatory orders would inflict considerable difficulties on large numbers of offenders. The Joint Committee on Human Rights has pointed out the risk that the change envisaged by imposing this charge may infringe Article 6 of the European Convention on Human Rights if it is seen as restricting access to a court or tribunal—for example, by way of appeal. In addition, given the serious concerns about the measure, it would be inappropriate to wait three years for a review of the operation of the charge as predicated by Clause 43. Hence Amendments 63FA and 63FB call for a review after a year. Given the number of cases in the courts, particularly if the Bill passes unamended, there should be ample evidence on which to base a review after such a period.
Finally, Amendment 63FC requires any variation of an order to be made by an officer of the court directly employed by HM Courts and Tribunals Service rather than an employee of whichever private contractor that will no doubt be added to the lengthening list of private sector organisations taking over public services. In other words, if there is to be a variation, it should be done by an officer of the court for whom there is perhaps less incentive than for a private contractor to take a decision that might be prejudicial to the defendant.
I conclude by raising a point made by my honourable friend Andy Slaughter in the Public Bill Committee considering the Bill. He put an interesting question. If the Government are intent on proceeding with the charge, why will they not apply the proceeds—that £65 million or some other figure—to reducing the savage cuts in criminal legal aid which everyone, from criminal law practitioners to civil society organisations and the judiciary, is warning will have dire consequences for our criminal justice system? In the Opposition’s view, this is an unnecessary and unhealthy provision, but if it is going to be implemented, if a certain amount is to be collected, and if the Government are right in thinking that those sums will amount to around £65 million, that would be one-third of the entire cuts made in the legal aid budget. As this is a late and novel introduction, I cannot see why the Government should resist that conclusion if, against our advice and the advice of other organisations, they press ahead with this retrograde and ill-thought out change to our system. I beg to move.