Michael Gove is a sincere, intelligent man who is doing the right thing. And we trust him at our peril.

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.

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Who needs Donald Trump when you have Philip Davies MP?

In my time I’ve shot the breeze with some fairly rum types. The kind of cads you probably wouldn’t want to be sat next to at one of those Islington-metropolitan-elite dinner parties to which people with my views are allegedly invited. Men who’ve killed random people for sport. Parents who’ve raped their five-year-old children. Premiership footballers.

But by far the most difficult companion at my hypothetical North London soiree is the type whose views on criminal justice heavily outweigh their understanding of the facts, or indeed their comprehension of why the facts might matter. Who intends for you to hear those views. And who will be neither challenged nor corrected. The Donald Trump, if you will, of the British middle-class social milieu.

I’ve struggled to digest these Trumps at weddings, birthday parties, extended family gatherings and long, desperate nights in pubs serving unpleasantly expensive bitters named after types of roadkill. But, by and large, channelling innate national reserve, I can politely squirm my way through, distracting myself by replaying The Mask in my head and resolving to find a new set of family and friends. “Maybe…”, I’ll hum as they recount a story they read in the Mail and how it’s an outrage that prisoners get free happy endings on the NHS and how they know a friend who got locked up for speeding when a paedophile gets compensation for a breach of their cat’s human rights.

It is much more difficult to waft out Trumps, however, when they have been, astonishingly, elected as representatives of the people and, even more upsettingly, appointed to the House of Commons Justice Committee. Step forward Philip Davies, MP for Shipley, self-annointed voice-of-the-people and regurgitator-at-large of Daily Express editorials. The non-thinking man’s Richard Littlejohn. The weight of intellect for which talk radio was invented. The man, if we had a Fox News, whose framed visage would adorn the studio walls, flashing up subliminally between commercial breaks.

Not a single story on criminal justice can be reported, it seems, without Mr Davies chipping in with his own views. Views that he felt not only competent but compelled to inflict upon the press, public and Parliament, notwithstanding his own admission that, prior to August of last year, he had never set foot in a Crown Court. His views have been characterised by Peter Hitchens as “genuinely conservative”, a smear on genuine conservatives that ignores the dearth of intellect behind Shipley’s one-man Tea Party movement. A superficial rummage around Google will take you to reports of various leakages of his rhetorical diarrhoea on all manner of topics. There was his plea to abolish sex education in schools, due to the fact that some of his constituents had opined to him that “more sex education led to more teenage pregnancies”, in blissful ignorance of the statistics showing teenage pregnancies continuing to fall. He made friends and influenced people when he suggested that employers be permitted to pay disabled employees below minimum wage, as “people with a learning difficulty, clearly by definition cannot be as productive in their work”. But it is criminal justice that is the former Asda marketing manager’s forte. And it is therefore a matter of great sadness that, for someone so invested in the subject matter, every utterance he has ever articulated on criminal justice has been ill-considered, insubstantial and resplendent in its ignorance of both the evidence and the workings of the legal system.

Davies prides himself on being one of those who “puts the victims first“. By which he means he likes locking people up, regardless of evidence as to what actually reduces reoffending and, y’know, protects victims. He thinks we should do more of it, and that those who urge that we look at the evidence are “do-gooders” and “friends of criminals”. He was demanding “tougher prison sentences” long before he himself ever entered a courtroom to understand how sentencing operates in practice, and why it is that an offence reported a certain way by the press might in fact be more justly resolved – for the defendant, for the victim, for the public – by not sending someone straight to prison. (When he was challenged by Bradford’s most senior judge to actually attend court and watch sentencing in practice for a day, Davies meekly conceded that every sentence passed was “fair and reasonable”.)

In 2011, when Parliamentarians were debating replacing Control Orders for terror suspects with Terrorism Prevention and Investigation Measures, his carefully considered view on how to devise a proportionate legal mechanism that would protect the public was thus: “My first thought would be to scrap the Human Rights Act for foreign nationals and chuck them out of the country.”

In November 2012 he introduced a Private Member’s bill seeking to impose a minimum sentence of 6 months’ imprisonment for anyone using a stolen disabled parking badge – regardless of whether they knew or believed it was stolen – and, when fellow Conservative MPs suggested this may be draconian, Mr Davies responded: “I am quite happy to be found guilty of being draconian, and I seem to spend my life in Parliament asking for more draconian sentences for a range of offences. I do not mind his describing me in that way, because there are far worse things to be described as when it comes to law and order. I would sooner take the tag of being draconian than the tag of being soft on dealing with crime”.

With this in mind, it perhaps comes as no surprise that he made this observation on youth justice and lowering the age of criminal responsibility (currently 10 years):

“Criminals are becoming more precocious and police tell me that those involved in criminal activities are at a much younger age than before. People take the view that if they are old enough to commit the crime, they are old enough to take responsibility.”

The age of the would-be defendant in one of the cases to which he was referring? Three. THREE YEARS OLD.

Davies’ enthusiasm for the death penalty extended to a BBC-recorded fact-finding trip to death row at Florida State Penitentiary where he purred, “If the British people could design a prison regime, this is what they would design”. Enjoying a bounce in a real-life electric chair, he concluded: “I feel remarkably cool and confident that this is the right system of justice…I really am in favour of capital punishment in the UK.”

Chris Grayling’s doomed ban on books in prisons was defended by Davies on the speculative ground that allowing prisoners to receive books might allow paedophiles to receive porn. And, bringing us right up to date, when the Justice Committee yesterday heard evidence about the operation of the abysmal Criminal Courts Charge, Philip Davies, accepting that the Charge may well be pressuring innocent people to plead guilty, defended it by positing that it discouraged the guilty from “working the system”. For Mr Davies, justice is locking up as many people as possible, for whatever they’ve done, whether they’ve done it or not.

He brings to mind Inspector Grim from Ben Elton’s gentle 90s police sitcom The Thin Blue Line, whose prescription for justice was:

“Presume everyone in the country is guilty of something – which they are – and lock them up. The entire population. And anyone who can, to the satisfaction of a senior judge, prove themselves to be wholly and fundamentally innocent, will be released. There’d be a bit less fannying about then, wouldn’t there?”

Addressing Frances Crook of the Howard League for Penal Reform yesterday, it seemed just a matter of time before he accused her, Grim-style, of “a load of wishy-washy, diddums, half-cock, up your social worker, foldy-roll ‘blame it on society’, psycho-sicko-socio-claptrap crap.”

The tragedy is that there are real and genuine problems within criminal justice. Many barristers would agree that sentences, in particular for serious violence or sexual offending, do not attract public support, particularly when automatic release at the halfway stage applies. The underfunding of the Crown Prosecution Service means that victims are being failed on a daily basis. A politician – of whichever party – with a genuine interest in gathering evidence and prodding assumptions in the criminal system would be a vital component of a good Justice Committee.

But we don’t have that. Instead, we have Philip Davies MP, wallowing in his own ignorance,  a comic creation who, unlike Inspector Grim, is far more difficult to pause, mute or put back in his box.

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UPDATE: Philip Davies MP has, hours after my original post, propelled himself to retweet fame by calling for a debate on “men’s issues” on International Men’s Day. Women are a recurrent bugbear of Mr Davies’, who has previously complained that there is “sex discrimination against men” in criminal sentencing, and that women in prison receive special treatment, such as the fact that, unlike men, they don’t have to wear uniforms. Readers will judge from his voting record whether his concern is motivated by a genuine passion for equality.

Bozo the clown shows that the government doesn’t even understand its own grotesque Criminal Courts Charge

Do not mistake this for a witch-hunt. It is not. Rather, it is a ninny-hunt. In fact, if there was sufficient slogan space on the t-shirts that I, as a modern-day Thomas Danforth, would distribute to the villagers along with their flaming torches, it is a Legally-Illiterate-Ninny-Who-Has-Inexplicably-Found-His-Hands-On-The-Oxidated-Levers-of-Justice hunt.

Shailesh Vara MP, the under-secretary of state at the Ministry of Justice since 7th October 2013, has already reserved for himself a special place in the hearts of the Bar by marching to the media in January 2014 armed with a fistful of misleading statistics purporting to attribute average annual earnings  of £84,000 to criminal barristers (the reality being an average net income of around £27,000). Having been soundly thrashed by the UK Statistics Authority, he has not sought to pursue this line of attack, commonly falling back instead on the Ministry of Justice’s other favourite trope, the “most expensive legal aid system in Europe” fallacy.

I have previously suggested that Mr Vara is a mendacious bozo. I illustrated this considered submission as below:

Shailesh Vara on the left, the Criminal Justice System on the right

Shailesh Vara on the left, the Criminal Justice System on the right

I now recognise that this was wrong. After yesterday, I am coming round to the sad realisation that he is, in fact, merely incapable of grasping the essentials of his brief. Over promoted beyond any ability to which he might one day aspire. The milk monitor fast-tracked to deputy headteacher, dribbling through governance meetings with periodic interjections of “What about the milk?”, as the grown ups exchange raised eyebrows and nod at him with big, patronising smiles.

At Justice Questions yesterday, Mr Vara was asked, quite properly, about the ongoing impact of the appalling Criminal Courts Charge, the mandatory financial penalty that courts are now forced to impose upon defendants regardless of their means. So grotesque is this brainchild of now-ejected Justice Secretary Chris Grayling that magistrates nationwide are resigning in protest, and most Crown Court judges, in my experience, are “forgetting” to impose it, prosecuting and defence counsel complicit in a conspiracy of silence aimed at harshing Mr Grayling’s mellow.

Anyway, Mr Vara, as bozo with responsibility for such matters, engaged in the following exchange with Labour MP Kate Hollern:

T7. [901243] Kate Hollern (Blackburn) (Lab): When the criminal courts charge was introduced, Labour warned that the lack of judicial discretion would result in miscarriages of justice, with people pleading guilty to avoid additional cost. It concerns me that people may be pleading guilty to save money in the short term. That will have a longer term impact on employment opportunities. Does the Minister think that is right and fair?

Mr Vara: I very much hope that if people are innocent, they will plead innocent. It is important to remember that the charge is levied at the end of all the other charges—costs, compensation, victims’ surcharge and so on. The charge is also based on ability to pay, so if people are having difficulty, they will not be forced to pay. If they do keep to their payments, no matter how minimal they are, then after two years the rest of the sum is actually scrapped.

Putting aside the unfortunate turn of phrase “plead innocent”, betraying an understanding of criminal procedure ad idem to a belief that being a doctor involves running around a hospital ward with a stethoscope shouting “stat”, it is Mr Vara’s understanding of the operation of the Criminal Courts Charge that causes particular alarm.

Let’s, in the words of Kid Ink, break it down.

“The charge is levied at the end of all the other charges – costs, compensation, victims’ surcharge and so on.” Chronologically, Mr Vara is right. Usually, when passing sentence, the Criminal Courts Charge is the final order announced by the court. It is also right that, when it comes to collecting defendant’s court debts, other financial orders take precedence. But that is not what Mr Vara is trying to convey. He is being asked directly about the affordability of the charge, and is plainly implying that the Charge is only imposed after consideration has been given to affordability of all financial orders imposed. This is entirely false. The regulations specifically prevent the court from taking the charge into account when setting the level of sentence. It is a fixed sum, payable regardless of the level of fine, compensation or prosecution costs.

“The charge is also based on ability to pay”. As above, this is simply not true. The charge, up to £1,200, is imposed irrespective of ability to pay.  This is why 50 magistrates have resigned and judges and practitioners nationwide are despairing. It’s not because we have an inherent fondness for the lowlife we prosecute and defend. It’s because we recognise, as civilised beings, that it is abhorrent to order, under threat of imprisonment, that people pay the state disproportionate financial penalties that they plainly can’t ever meet.

“If they are having difficulty, they will not be forced to pay”. The best that can be said is that after two years the magistrates have a discretion to remit the charge, but this is contingent on the defendant having not only paid as much as possible, but also having remained “offence free” for two years. As everyone in the criminal justice system, bar Mr Vara, recognises, those hit hardest by the CCC are the penniless, shoplifting drug addicts who, even during an ultimately successful rehabilitation period, will intermittently slip and re-offend. Thus the MoJ has fashioned a splendid, and publicly-funded, revolving door in which Criminal Court Charges are imposed consecutively against petty offenders, with the prospect of the charge being remitted forever two years away.

Oh, and over that never-ending two-year period, the government has the power to charge interest. Just to make sure that that rock keeps rolling back down the hill.

I do not blame Shailesh Vara for attempting to defend the indefensible. I do it professionally on a daily basis. But if he were in court, he would have been publicly scorched by a Crown Court Judge for making submissions on a premise so removed from the facts that it is plain he has not mastered – perhaps even read – his brief.

In language that a bozo can understand – if he’s going to stand up in Parliament and talk nonsense about a despicable policy, Mr Vara could at least have the decency to try to understand it.