Guilty and Charged



If you’re an employee of the MoJ and/or a fan of ‘blue sky thinking’ with any policy influence, then please look away now – I don’t want you getting any ideas.

Right. It’s always worth looking at other common law countries (there’s some interesting stuff from Canada about the Victim Surcharge at the moment for example) to see how they approach their Criminal Justice System and recently National Public Radio in the USA have been running a series called ‘Guilty and Charged’.

This looks at the various ways that have been developed in the US of funding the costs of an ever-increasing justice system (the US is still king, but we are doing our best to catch up). It’s worth listening to the various pieces, but there are also transcripts of the news stories if you want to read them instead.

Creeping Court Costs

It’s noted that over time ‘users’ of the Criminal Justice System (not a great word, but better than ‘customer’ which seems to be being used more and more) are being charged for more and more parts of it.

Take the following four areas of the system as examples :

  • Electronic monitoring (tagging)

  • Probation/Licence Supervision

  • Public Defender costs

  • ‘Room and Board’ in prison

Not one single state (or DC) doesn’t charge for one or more of the above four ‘services’, and many charge for all of them. Yes, that’s right, people have to pay to be in prison.

In Washington State, for example, if you want a jury trial you have to pay for it (apparently, though I haven’t sourced it, $125 for a six person jury, or $250 if you want the full complement of 12). Or in Philadelphia there is a $100 charge to apply for parole and you have to pay $30 a month to be supervised, either as part of what would here be a Community Order or Suspended Sentence, or what would be during a period of licence or parole here. The $30 a month can we be waived in certain circumstances.

How do we measure up (at the moment)?

It’s easy to sneer, but don’t forget that we also regularly order people to pay Court Courts and whilst we don’t charge people for banging them up if they’re guilty, we’re not above charging them board and lodging if they’re innocent. Means testing for legal aid is certainly less unfair, but nothing to be proud of. We regularly impose people for non payment of fines (with about the same test as applied in Bearden v Georgia). And of course now we have the nonsense of the Victim Surcharge (at least the US federal system of manadatory fines has some discretion).

Are they coming here?

Well, you can never tell where the MoJ will go, but I wouldn’t be surprised if some of these start rearing their head. Had a minister raised the idea of a Victim Surcharge twenty years ago, wiser heads from the Civil Service and Judiciary would have had a word with him or her and pointed out the problems, after which it would have been quietly dropped.

So how about this idea? Last year there were 364,255 Representation Orders in the Magistrates’ Court (including the Youth Court). A £10 ‘admin fee’ lodged on all of them would raise over £3½ million. Not a huge amount, but every little helps as the LAA would say. But what about the admin and chasing costs? Well, they could do what Louisiana does and pass the cost on the defence. How about knocking £10 off every bill that’s submitted? Or, even ‘better’, require the £10 to be submitted with the application. That leaves the lawyer funding the application and having to get it back off the client. Invidious? Yes. Unfair? You bet. Does that stop the government? Does it hell. No doubt there will be an attempt to stymie it by not working until legal aid is granted, but the historical precedent isn’t great.

And once the principle is in, it’s in. It’s easy to add a bit to the costs, and have extra costs if the Rep Order is extended to the Crown Court, and so on and so on for example (charging an extra ten quid in the Crown Court would bring in an extra million). Would this be refundable if you’re acquitted? No.

Even with something as absurd as charging for prisons, you could see how it comes in. A few headlines about ‘millionaires Pryce and Huhne’ being banged up and calls for them to contribute to that and their supervision, and the breach is made.

With Probation being privatised, how long before they start asking for contributions as well? It would not surprise me if that was the first one of the above (other than legal aid) to come to fruition.


I’m obviously not advocating any of this – I’m just saying where I think the MoJ will be going. I am hopefully wrong, but this would be entirely consistent with this (and the last) government’s attitude towards al things CJS.

So, have a listen, and hope that this isn’t where we are going. Forewarned is forearmed after all. And beware of slight encroaches in any of these areas. Once a principle has been breached, it’s gone, and it’s very easy for the sums to increase from the nominal (see tuition fees as an example).

Or forgot all I’m saying as being scaremongering and just enjoy some good quality journalism.




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