Why this 75p Mars bar shows we should abolish magistrates

If there is one positive to be derived from the Criminal Courts Charge (about which see here), it is that the creeping media attention is starting to shine a low-wattage torch on the grubby underside of the criminal justice system – the magistrates’ courts.

Enormous credit must be extended to Frances Crook and colleagues at the Howard League for Penal Reform for their just and righteous campaign against the Criminal Courts Charge, Chris Grayling’s final stinking dump on the criminal justice system before Mr Cameron mercifully took him out of service and put him out to what one hopes is his final political pasture before a deserved finale at the glue factory.

By retweeting local media reportage of cases where this new mandatory financial penalty has been imposed upon the very poorest in society to cruel and perverse effect, the Howard League has piqued social media interest, and one reported case, and one injudicious judicial comment in particular, has found its way into the Twitter crosshairs.

On Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

Delicious £328.75-y goodness

Delicious £328.75-y goodness

What caught the eye, however, was this reported remark attributed to the chairman of the bench, who said: “We do not readily accept you go into a shop to steal just for being hungry.”

Read that again. And once more, please.

Now let’s get a few things clear. The Halesowen News does not report the full context of those sentencing remarks. It may be that the Defendant had resiled from that feature of her mitigation, allowing the magistrates to readily dismiss it. It may be that, in accordance with the Court of Appeal authority of R v Newton Cr.App.R. 13, having doubts as to the veracity of the defendant’s account the magistrates invited her to give evidence on oath, and, she having either done so unimpressively or having refused, the bench felt able to safely reject her explanation.

But, if they are of the same disposition and temperament as some of the magistrates in front of whom I have appeared, I cannot rule out the possibility that they instantly rejected a prima facie plausible strand of mitigation because the colour didn’t fit into the limited spectrum cast by the dispersive prism of privilege through which they view the world.

There is no doubt that there are some good magistrates. But those who volunteer with open minds and honourable intentions are, in my experience, stymied by colleagues whose collective common faults can be reeled off rote by any solicitor or barrister who has spent an afternoon holding back tears of frustration before a lay bench.

They are slow. They will take an hour to deal with a hearing that will take a professional District Judge a couple of minutes. They are entirely unrepresentative of those in respect of whom they sit in judgment, in age, social background, culture, ethnicity and class. They are predisposed to accepting prosecution – in particular police officers’ – evidence, where juries tend to analyse with a greater, deserved degree of scepticism. They will variously misunderstand, misapply or ignore basic principles of law, such as the presumption of innocence. The decree of the Queen of Hearts presiding over the trial of the stolen tarts – “Sentence first – verdict afterwards” – acts as the adopted motto of much magistrates’ court justice.

I could go on. In future posts I will. Because to those outside the system, the dictum of the Mars Bar magistrates  probably strikes as an anomaly. Whereas those inside the system know that such sentiments are expressed, distilled and formulated into sentences of up to a year in prison every single day, in every magistrates’ court in the land. 95% of criminal cases are dealt with by the magistrates’ court, by volunteers with no legal qualification and an invariably skewed perspective on social matters. And I can say without hesitation that the gravest instances of injustice I have witnessed in my career have all occurred at the hands of lay benches.

The problem, in my humble view, is not the magistrates in this case. The problem is a system that allows people to self-select as arbiters of justice, when justice would be far better served by increasing the number of professional District Judges sitting in the magistrates’ courts. None of the above would have happened with a District Judge. And I would bet £328.75 that a DJ would have dealt with Louisa Sewell with at least a smidgen of humanity.

The ballad of Steak Pants Man and the Criminal Courts Charge

This week brought forth a shimmering example of the perfect insanity of former Justice Secretary Chris Grayling’s parting gift to the criminal justice system.

Insanity for which you, the taxpayer, are going to pay.

In his last weeks in office, Mr Grayling snuck in through the legislative back-door secondary legislation giving effect to the Criminal Courts Charge – a mandatory fixed fee of up to £1,200 to be paid by any defendant convicted of a criminal offence committed after 13th April 2015.

A policy that was presumably the product of a focus group comprised of Mail Online commenters and the man behind John Major’s Cones Hotline, the Criminal Courts Charge is designed to Make Criminals Pay Their Way. Or rather, to allow Mr Grayling to proudly tell The Sun that he is Making Criminals Pay Their Way, while in fact invoicing the taxpayer for his vanity.

Because the Criminal Courts Charge (CCC) doesn’t make criminals pay their way. It graduates from the school of political thought that wonders, in all sincerity, why homeless people don’t just get a job. Or why heroin addicts don’t get their act together and stop being so silly with all the drugs and that.

It is a monument to infantilist politics at its most depressing.

A wholly sensible policy

A wholly sensible policy

And my trial this week of a man with a fillet steak in his underwear shows the crass stupidity of this policy in action.

Before that, however, a quick primer. Prior to the introduction of the CCC, any financial penalties related to criminal proceedings – prosecution costs, compensation, legal aid contributions – were all means-tested. The only exception was the “Victims’ Surcharge”, a charge of up to £120 attached to every criminal offence, notionally to go into a fund for victims of crime. Courts can, however, get round imposing the Victim Surcharge by awarding compensation directly to the victim, if the defendant cannot afford to pay both.

Means-testing fines, costs and compensation is self-evidently sensible. No good can come of chasing people for debts they simply cannot and will not ever pay. It’s a complete waste of state resources. The state pays the cost of chasing the debt, the cost of enforcing the debt in court, and ultimately the cost of locking up defaulters. The reality is that most people before the criminal courts have very little money. And so financial orders for significant sums are rarely made.

Which brings us back to Fillet Steak Pants Man. I was prosecuting his trial this week, at which he forgot to attend, in contravention of his court bail. He rocked up at court moments after the jury returned with the inevitable guilty verdict, citing by way of explanation for his tardiness a “diary mix-up”. By virtue of his non-attendance, he had committed the offence of failing to surrender to custody contrary to section 6 of the Bail Act 1976. In such situations, the court will put the charge to the defendant immediately, and, barring a very good reason for not attending whilst on bail, the defendant will normally plead guilty. There will then be a nominal additional sentence for this offence, although a fine or conditional discharge will frequently be ordered where, as in this case, a defendant surrenders late on the same day.

But here’s where the fun with the CCC kicks in. The shoplifting offence for which he had been tried and convicted was several years old, and so no Criminal Courts Charge applied, and due to the defendant’s impecuniosity no prosecution costs or other financial order was appropriate. However the offence of failing to surrender to custody was committed after April 13th 2015, and so the charge did apply to this offence. And, following the table of charges through to its immutable conclusion, the despairing Judge was forced to order, for a guilty plea at the Crown Court, a charge of £900.

Nine hundred pounds.

This defendant, you may not be surprised to learn, is a heroin addict. He has no money. This is why he steals fillet steak from Asda and hides it in his pants. What little money he has goes on heroin. That may not attract sympathy, but is a fact of life. He has historic court debts running to four figures. He is never going to pay this £900.

And he is not alone. Far from it.

And so when the Ministry of Justice triumphantly predict that the CCC will bring in £85 million per year to contribute towards the administrative costs of the courts, they are being at best naïve, at worst abominably dishonest. When one considers that the court is specifically prohibited from considering at any stage the defendant’s ability to pay the CCC (for example, the court cannot reduce a fine to take into account the impact of the CCC on a defendant), the MoJ starts to look sadistic.

If you’re looking for a paradigm of fallacious reasoning, the Impact Assessment signed off by the MoJ is worth reading. Perhaps the most astonishingly bird-brained assumption lying behind the policy is that the percentage of people who will actually pay the charge will be broadly similar to the percentage of people who currently pay court fines. Forgetting, of course, that fines are imposed at a level adjudged by the court to be payable. The MoJ’s logic is thus: As 49% of fines deliberately set at affordable levels are paid, it follows that 49% of charges arbitrarily set at high levels regardless of an individual’s ability to pay will be paid.

It is logic such as this that thus sees Fillet Steak Pants Man notionally burdened with £900 of state debt. You will pay for the court hearings to try to enforce it. You will pay for the bailiffs to force their way into his squat to seize nothing at all of value. And you will pay, ultimately, for his prison cell.

He is but one example. As offences committed post-April 2015 start to crawl before the courts over the coming months, there will be more Fillet Steak Pants Men and Women. And you will pay for all of them. And all so that Chris Grayling, before he was defenestrated, could tell the red tops that he was a hard man.