Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Debate between Lord Ponsonby of Shulbrede and Lord Woolf

Wednesday 14th October 2015 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my contribution concerns both practicalities and the principle of the courts charge. I remind the House that I sit as a lay magistrate in central London. I agree with everything that has been said by the previous speakers. I shall avoid going over examples already given but shall walk through two simple sentencing exercises that illustrate the points with which we are dealing.

If an offender pleads guilty to a summary offence in a magistrates’ court, a band A fine is given. If he is on average income, that fine will be £150. That is at the discretion of magistrates. In addition, there are CPS costs of £85, the imposition of which is, again, discretionary. After that, there is the government surcharge or the victim surcharge of £20, which is mandatory. Then there is the new courts charge of £150, which is mandatory. The total is £405. In this example, 37% is the fine and 37% is the courts charge.

In the same circumstances, if the offender is on benefits the balance changes. The fine is £40, the CPS cost is £85, the government surcharge is £20 and the courts charge is again £150. The total is £295. In this example the fine for an offender on benefits is 14% of the total figure but the courts charge is half. This is a common type of fine given in the magistrates’ courts. The courts charge is clearly unjust on this consideration alone.

We have heard how unhappy magistrates are and we have heard about the resignations and retirements—and I personally know a couple of magistrates who have retired. However, it is not unusual for magistrates, and I am sure judges as well, to combine competing principles when they make decisions on sentences. We have the principle of totality when we are making a sentence—that is, what is the bottom line? Of course, we have to come up with a total sentence that is fair in all circumstances. But the competing principle is the advice that we get from our justices’ clerks, who are in turn advised by the Justices’ Clerks’ Society, whose advice to us is that we should sentence and then, after the sentence, add in an administrative charge, which is the courts charge. Clearly those two pieces of advice are in contradiction but, in the privacy of the retiring room, magistrates may look at the matters over which they have discretion. I was disturbed to hear about the case in the Independent this morning, where magistrates said that they actually reduced compensation. I believe that that is absolutely wrong, but it is within the power of the magistrates to reduce compensation to reflect the totality of the sentence that they are giving. When the Minister comes to wind up, I am sure that he will remind the House that it is open to magistrates to give an absolute discharge or “one day deemed served”. I and all magistrates in exceptional circumstances use those types of sentences, but it is absolutely wrong to use them as a way in which to circumnavigate the courts charge.

Noble Lords have spoken about the possibility of people changing their plea to guilty to avoid the courts charge. I understand that it is early to get a statistical basis for that, even though a number of anecdotes say that that is what defendants are doing. But it is worth reminding the House of the totality of the situation. We have already heard that the sentence itself can be reduced by up to 30% if somebody pleads guilty at the first opportunity. In addition, the costs asked for by the CPS will be much lower if somebody pleads guilty at the first opportunity, rather than going through trial. Admittedly, this is a discretionary amount, but the amount asked for will be much lower on behalf of the CPS. On top of that, you have the mandatory courts charge, which we have heard so much about, of up to £1,000 for a conviction on an either-way matter in a magistrates’ court. Putting those elements together could encourage people to plead guilty when they believe that they are not guilty.

On the principle of the courts charge it is worth reflecting that, when we debated this matter on the then Criminal Justice and Courts Bill last year, we did not know the level of the courts charge, and the briefings that we received—from the Magistrates’ Association, for example—set the courts charge at the same level as that of the victim surcharge, because they did not know any better at the time. So the debate at that time was on the principle of the courts charge, not the proportionality, because the figure is so much higher than we expected when considering the matter last year.

The Government have always justified this matter by saying that criminals should pay their way, and the previous speakers have accepted that principle, but I am not sure that I do accept it. The court system, right up until last year, was an independent administrator of the law, in which judges, magistrates and jurors had no interest in the outcome of a case, their only duty being to administer the law and come to a just outcome. Surely it is wrong that the court system has a financial interest in the outcome of a trial. I am not for a moment saying that any judge or magistrate would be swayed by that consideration, but from the defendant’s point of view and the public perception there is an institutional, built-in benefit to the court system on the result of a trial. On that alone, I oppose the principle of the courts charge.

There is a bit more to it than that—and I refer to some research sent to me about how people perceive how they are treated in court. It is not merely a question of the legal and constitutional rights that they receive but about what they believe to be the fairness of the whole system. There is growing evidence in America and the UK that if people are convicted and believe that they have been fairly treated, they are more likely to comply with the sentence and the sentence itself is likely to have a better outcome. This is a profound observation, which puts an onus on the court system to treat all parties fairly and an onus on treating convicted offenders in such a way that they think they have had a fair crack of the whip, so that they are more likely to comply with the sentence when it is given.

I urge the Government to bring forward a reconsideration of this matter. It is something which, in my 10 years as a magistrate sitting on the Bench, I have found people feel most strongly about.

[Lord Woolf (CB)]

My Lords, what we are discussing concerns what happens in magistrates’ courts up and down the country and, from time to time, in the Crown Court, where for reasons that can be good or bad, cases go to be heard. I fear that these regulations indicate that the Government have paid less attention to what they are doing because it concerns magistrates and the cases that come before them, and other cases that are not the most serious. I see no other reason why the Government could come to the conclusion that it is right and proper to do what these regulations seek to do. I suggest that this House should regard justice in the magistrates’ courts as every bit as important as every other court in the land. It is a total disgrace that we should put on to the statute book provisions that have the consequence that magistrates are so appalled about what they are required to do that they feel it necessary to resign. I regard that as shocking, and the only explanation that I can suggest is the one I have given: that insufficient consideration was given to what has been done.

Now that the matter has been brought to the attention of a new Minister of Justice and Lord Chancellor, he should look at it very carefully, as quickly as possible and, as he has been shown to have the courage to do, take his own decision and come to the right conclusion. I wish to put it on the record that I have been very pleased by the general approach of our new Minister of Justice and Lord Chancellor. It seems to me that he considers the facts; he may not always come to the decision I would want him to come to, but he comes to a fresh decision, as required by the circumstances as he sees them. I make no objection to the fact that he may take a different view from that which judges and retired judges would have come to. What is wrong here, though—this is the explanation—is that there was no proper consultation. I believe that if there had been proper consultation that had been objectively considered, these regulations would not have seen the light of day.

Offender Rehabilitation Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Woolf

Tuesday 25th June 2013 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, I support the noble Baroness, Lady Linklater, in the general thrust of her amendments. Her introduction made clear the vulnerability of this group of young people and its importance in terms of their being very likely to reoffend. She also made the point very forcibly about the excellent work done by the youth offending teams, and that is something which I see very often.

It is my understanding that currently the youth offending teams can agree to continue working with any young person who turns 18 while they are sentenced. They will make that decision based on how well they know the young person. In my experience, if they know them even relatively superficially, they will commit to carrying on working with them for the very reasons that the noble Baroness, Lady Linklater, has given, such as the benefits of continuity and continuity of supervision.

Perhaps inevitably, I ask myself whether members of the youth offending team should be obliged to work with these young people if they hardly know them. I came across a case quite recently where a young man pleaded guilty to robbery with a knife and was looking at a two-year sentence. He had been in London for only a relatively brief time and was pretty much unknown to the YOT which had the responsibility for him. Is it right that the members of the team should have no discretion in whether they have continuity of supervising this young man when they do not know him? That is a practical problem. I agree with the noble Baroness’s general points that if there can be continuity it is preferable. We need to give discretion to the professionals involved. My experience is that they certainly will want to continue supervision if at all possible.

The noble Baroness, Lady Linklater, described Amendment 15, which gives the YJB responsibility up until the age of 21, as “whistling in the wind”. Here again, I agree with the sentiments behind this, but can see a number of practical problems, not least that parents or responsible adults are very often encouraged to be part of the sentence process. That may well not be appropriate for somebody who is over 18 but under 21. One would have to look at the sentences if one were to make that amendment.

There is a very serious piece of work to be done looking at the outcomes of YOTs versus the outcomes of adult probation providers for the 18 to 21 year-old group, because they have a different approach. I would say that the YOTs have a more caring approach, if I can use that word, to the people they deal with. The noble Baroness has raised a very profound question regarding people in the 18 to 21 age group and I agree with the general thrust of what she is saying. I presume she is not moving to a vote, so I leave it at that with my general support.

[Lord Woolf]

My Lords, I would like to express my general support for what the noble Baroness, Lady Linklater, has proposed and said and also for that which has been said by the noble Lord, Lord Ponsonby. I venture to suggest that anyone who has experience of dealing with young offenders in the courts would come to exactly the same conclusions as they have expressed. They have very good reasons to advance their comments. The position of those aged 15-plus to 18 is a particularly difficult area which has been neglected largely by the approach of the criminal justice system until now. I particularly urge that what the noble Lord, Lord Ponsonby, has said about that group is taken into account.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Ponsonby of Shulbrede and Lord Woolf

Tuesday 7th February 2012 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, this group of amendments seeks to address an opportunity to introduce restorative justice into the Bill. Indeed, in the previous group of amendments, the noble Baroness spoke of the Government’s enthusiasm for restorative justice and the amount of money that they are investing in it. Restorative justice was referred to in favourable terms in the original Green Paper. The noble Lord, Lord McNally, has spoken, too, with real strength of feeling on restorative justice. He has said:

“Restorative justice is not a soft option. Facing up to wrongdoing can be a difficult and unpleasant process”.

I agree with that, but I add for myself that I think that it is a necessary part of the restorative justice process. I take it as read that all parties are in favour of adding a restorative justice provision to the sentences tool kit.

My Amendments 177DA and 177G specifically address youth sentences. Magistrates in youth courts need to have confidence, of course, that non-custodial alternatives to custody will work, and restorative justice, including conferencing, has a definite place in the right circumstances. If it were a specific requirement of a youth rehabilitation order, which is the burden of my amendments, it would emphasise its value and ensure that restorative justice is at the front of the sentencers’ minds when they come up with the sentence. The whole principle of youth sentencing is that youths often lack the maturity of adults and, in particular, may well not have considered the effects of their behaviour on their victims. It is true and proven that restorative justice can bring this home in a powerful way.

I accept that at present a restorative justice requirement could be requested as part of a supervision requirement or activity requirement. These obviously already exist, but the advantage of introducing a specific restorative justice requirement would be to keep that option at the forefront of magistrates’ or judges’ minds when they are sentencing.

The amendments tabled by the noble and learned Lord, Lord Woolf, take a more ambitious approach, in that he specifically addresses the question of remand and having a pre-sentence restorative justice programme which would form part of a pre-sentence report. Presumably—although the noble and learned Lord will speak to the amendment himself—the sentencing bench would take into account how effective that pre-sentence restorative justice programme has been.

In conclusion, I regard restorative justice as an effective tool in the box. There is a substantial body of evidence that it works. I have made the point before, but I shall make it again, that judges and magistrates see the consequences of these community sentences when they fail. We see the failures, because it is the job of magistrates and justices to come up with further sentences when people fall down on their community sentences, whether in the youth or the adult courts. But I believe that restorative justice has a proven benefit and that this group of amendments presents an opportunity to put it into the heart of this Bill. On that basis, I beg to move.

[Lord Woolf]

My Lords, it may be appropriate if I speak now to Amendment 177DAA, which is in my name. Your Lordships will see that the amendment is supported by a trio of very distinguished names. Perhaps I may say a word about the right reverend Prelate the Bishop of Liverpool, who cannot be here today. Unfortunately, he has been ill but I know he was very anxious to be here to support the proposal in any way he could. The other distinguished name which I mention with deference is that of the noble Lord, Lord Hurd. He is the president of the Prison Reform Trust, and I am proud to indicate that I am its new chairman. The Prison Reform Trust and the Restorative Justice Council are very enthusiastic about these proposals.

I was grateful for what the noble Lord, Lord Ponsonby, said in regard to his own amendments because I certainly endorse what he said about their virtues. He also indicated that my amendment perhaps goes a bit further. That is true but although I claim no credit for this, because others more able than I played a part in it, I draw attention to the fact that the amendment proposes, first, to give the court discretion as to whether it remands,

“the case in order that the victim shall be offered the opportunity to participate in a process”.

Because I know that the issue of costs will be high in the minds of those who appear on behalf of the Government, I also draw attention particularly to the proposal that the,

“court may not remand the case for the purpose specified … unless it is satisfied that arrangements for a process of restorative justice can be or have been made in the area where the offender will reside”.

This proposed new clause is really meant to cover the situation which I believe we are in.

The virtues of restorative justice are becoming more widely known because of the hard work that has been done by various organisations in different parts of the country. I was pleased to hear what the noble Baroness said about the Government's intention on restorative justice. I am of course aware that the Minister has also spoken in its favour. Regarding this amendment, I urge that it can do something very positive. It can put the stamp of approval on restorative justice into a statutory form. It can then allow the process that has already started to continue, and as and when the positive aspects of restorative justice can be brought into practice in different areas, arrangements can be made. In this way, there can be a growth of the use of restorative justice which is in keeping with the nature of the exercise.

In appropriate cases, it very often has a most markedly positive effect, first of all upon the victim. When we are dealing with criminal justice, it is important that we should not neglect anything that might be positive for the victim, and I am sure that the Government do not intend to do so. The other aspect is that it helps the process that, as I understand it, the Government propose to adopt and will ease the exercise that needs to be performed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Ponsonby of Shulbrede and Lord Woolf

Tuesday 7th February 2012 Lords Chamber

[Lord Woolf]

I would be bold beyond my own abilities to be bold if I were to try to attribute responsibility between the various players in our society as a whole. I think that we all contribute to the present situation. Judges cannot hide behind the media; magistrates cannot hide behind the media; and I certainly would not have sought to shirk the responsibilities I had by hiding behind the media. Nothing would please me more than if the media could learn the wise lesson that the noble Lord, Lord Judd, was suggesting that they should learn.

The noble Lord is absolutely correct. Sentencing is a lonely business. When you are put under considerable pressure in trying to determine the right sentence, you try to put out of your mind what you read daily in the media, but sometimes it is a very difficult thing to do. But it can just make the difference that I have said is so important between taking the decision of imposing a short sentence and taking the much more sensible course of imposing a positive sentence—one of the sentences that the noble Baroness, Lady Linklater, wants the courts to be aware of—which can so much better be imposed of service in the community.

[Lord Ponsonby of Shulbrede]

My Lords, I had not intended to intervene in this debate but it has been so important that I felt that I really had to.

Some noble Lords may know that I sit as a magistrate so it is with some trepidation that I follow the noble and learned Lord. I sit as a very junior magistrate in central London and I sit on a probation liaison committee. That committee is of huge importance, both to me personally and to all my colleagues. Of course, we become aware of the sentencing options. It is a training event that happens regularly—it happens every Thursday as well as more substantial training events—and I and my colleagues regard it as extremely helpful to be brought up to date on a continuous basis with all the community sentence courses that are available.

I very much support the first amendment of the noble Baroness, Lady Linklater. It is of huge importance. It is particularly important that it is on a statutory basis because that will recognise the importance of that work in giving magistrates confidence in the community sentences so they can go ahead and issue them. That is an absolutely central point, about which I can talk from my own experience.

I also take the point made by the noble Lord, Lord Ramsbotham, about programmes sometimes being too long to fit in with the length of the community sentence. I have come across this issue several times. One needs to have a real faith and trust in the probation reports that one is given in order to come up, if you like, with the minimum time realistically to achieve the elements within those sentences. Again, that comes down to a question of professional trust between the different elements in any court.

Even though I agree with the general views on minimum sentences, I am rather less enthusiastic about the noble Baroness’s second amendment which concerns them. In my experience, some 90 to 95 per cent of the short-term sentences that I have given have been for people who have broken their community orders. I understand that that is not an attractive argument but that is the reality of my sentencing experience here in London. Of course we constantly look at the alternatives. No one wants to give short-term custodial sentences. I understand that they are very often ineffective, but the reality is that very often the people to whom one gives those sentences have already failed on their community orders.

[Lord Woolf]

My Lords, does the noble Lord not think that the amendment clearly covers that case? It allows a short sentence to be imposed when there is no other appropriate way of dealing with the offender. If you have imposed a sentence and the offender has not complied with it, surely that is a classic example of a situation where there is no other appropriate method of dealing with the offender. I say that with diffidence because I appreciate how difficult it is for magistrates to deal with the sort of offender the noble Lord has just described.

[Lord Ponsonby of Shulbrede]

The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.