Gawd bless that nice Mr Gove!

Why, in only a few months he has already been fulsomely complimentary about how smashing we barristers are, has made some tremendously liberal squeaks about rehabilitating prisoners, and successfully squared up to Foreign Secretary Philip Hammond on how it’s a rum idea to offer to teach the Saudis how to dismember their own prisoners. And now, for his greatest trick – his Statue-of-Liberty-moment – he is going to make the Criminal Courts Charge disappear!

I use the word trick advisedly. Because, if we accept newspaper reports, there’s a rather pernicious small print, rendering the spectacle less David Copperfield and more Penn Jillette firing a nail gun into Teller’s crotch, only with real nails.

The trade-off, we are told, for Mr Gove mercifully scrapping the Criminal Courts Charge – the mandatory fixed financial penalty of up to £1,200 imposed upon every convicted person regardless of their ability to pay – is a Robin Hood tax on the big swinging City Dicks, Toms and Harrys raking in oodles from their commercial law practices. A one per cent levy on the turnover of the top 100 corporate firms, raising an estimated £190 million, is what Mr Gove will be forced to implement. Reason being, The Times informs us, those meanies at the Treasury, who are insisting that the financial hole of between £65m and £90m caused by abolishing the Criminal Courts Charge be plugged.

So a poll tax on the poorest is being replaced with a one per cent levy on city law firms grossing in excess of £19bn. What’s not to like about that?

Pretty much everything.

Put aside the question of whether it is fair to impose additional taxes upon a specific sector of the workforce for the purpose of funding a public service. Those paid far more than I am can argue their own corner, or at least should be capable of doing so given their hourly rates. My fear, the terror lurking at the heart of Mr Gove’s proposals, is what this represents.

Let’s dispel one myth – Mr Gove does not need to find money to bin the Criminal Charge. The Times rehashes the figures waved about in the MoJ’s laughable impact assessment, which optimistically opines that by 2017/2018 the Charge might generate a net £85m per year. The assumptions lying behind this figure are legion and unsustainable: that the number of defendants appearing before the courts will remain static (it has been falling year on year); that the collection success rate will be broadly similar to the collection success rate for collecting fines (fines are means tested and imposed on only those who can afford to pay; axiomatically there will be far more defaulters on an arbitrary penalty imposed irrespective of means); that it will cost nothing to enforce the Criminal Courts Charge (it costs £20m per year to enforce fines, and it is a safe assumption that enforcing the CCC will be at at least the same level, if not significantly greater). Indeed, when the impact assessment factors in a modest estimation of enforcement costs, it concedes that the Charge could cost the taxpayer £20m this year (2014/15) and £15m next year (2015/16).

The CCC could be scrapped immediately. The Treasury knows it is a non-starter. It was never designed to generate income – it was a blood sacrifice on the altar of the putative leadership campaign that Chris Grayling’s ego convinced him was his destiny.

No, the reason Mr Gove is happy to abandon the Charge is that it provides cover for him to do something he has wanted to do since arriving in post. Something he set out in his inaugural address to the Legatum Institute. And that is to remove the criminal justice system from the ambit of public funding altogether.

In Mr Gove’s vision, funding shortfalls in the criminal justice system – the courts, the Crown Prosecution Service, legal aid – should be remedied not by an increase in public funding, but by lawyers, whether through further, directed taxation on city firms, or by the extension of pro bono work. And the message this sends is deeply troubling. It reinforces the notion that a functioning and fair criminal justice system is a luxury not worthy of funding through general taxation. If we must have it, we’ll have a whip-round among the rich kids and see if we can scrape enough together to keep it going. Perhaps ask them to do a bit for free. Have a raffle and get an unlucky competition law associate to knock out a rape trial for a couple of days to satisfy Clifford Chance’s pro bono quota for the month.

And once something is established as a luxury, we can afford to lose it. Or at least stop caring how well it is administered.

The British criminal justice system should be, and believe it or not was once considered to be, the standard to which other jurisdictions aspire. The public should be as proud of our courts as they are of our hospitals. It should be explained, to counteract decades of false reporting and mendacious Grayling-sponsored spinning, that spending public money on ensuring despicable people have a fair trial is as worthy as spending public money on ensuring despicable people have access to medical treatment. That legal aid is not a dirty word, any more than “free healthcare” is a luxury hogged by the undesirable underclasses. That a fair criminal justice system is not the zenith but the baseline of a civilised democracy.

Michael Gove is a very clever man. He is also a proven ideologue. No doubt he sincerely recognises the justice of revoking the Criminal Courts Charge, and this, when it comes to pass, is to be welcomed. But if this does transpire to be a Trojan horse ushering a remodelled narrative of criminal justice as an added bonus to the legal system – as something that need not concern most of us in our content, suburban lives – we should be very afraid indeed.

This article first appeared in Solicitors Journal last week.

thesecretbarrister Bad Law, Politics , , , ,

One Comment

  1. “Michael Gove is a very clever man. He is also a proven ideologue.”

    That’s a pretty good summary, with one omission: Michael Gove is blessed with a very special cleverness that is equalled and opposed by his ineptitude. Further, he has only one notable political skill: he is very good at Daily Mail.

    I agree with your assessment of the Gove agenda, but I question the depth of his conviction – he is not the ‘conviction politician’ or the commissar we saw in Grayling – and it is fair to ask how an intelligent and well-educated man supports this ideology. My own view springs from an uncharitable observation: the men who welcomed Gove into their political clique are not his friends and there is a distasteful similarity between Gove and the nasty little boy who sucked up to the richest kids at school, and was rewarded for doing their dirty work by praise and the mistaken sense that he had risen in society, and that their popularity and glamour had been passed to him, as if he was their equal.

    Be that as it may, his besetting weakness is that he’s vindictive – and I would urge each and every legal professional, and every senior member of the judiciary, to seek out training in managing a hostile media campaign. You do not want a hostile cabinet minister briefing against you in the media, and you definitely do not want the hostile media to be the vindictive voice of Middle England: prepare yourselves!

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