Criminal court fees
The 13th April 2015 marked the commencement of The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015. Depicted as having been ‘snuck through’, the regulations came into force as a result of a clause in the Criminal Justice and Courts Act that was introduced in the final days of the last UK parliament.
The legislation means that defendants who are convicted will have to pay a fee, which varies depending on the type of crime:
- A guilty plea in the magistrates’ court, for a summary offence, will cost a defendant £150; whereas, if the defendant pleads not guilty, but after trial is convicted, will cost £520.
- For an either way offence, a guilty plea will cost £180; whereas, a conviction after a not guilty plea will cost £1000.
- In the Crown Court, those admitting guilt will be charged £900, while those convicted after a trial on indictment will have to pay £1,200.
Ex-Justice Secretary Chris Grayling said the new charges would ensure that criminals ‘pay their way’. However, Max Hill QC, criminal barrister and leader of the south eastern circuit, said that ‘these measures could ratchet up the pressure on individuals to plead guilty. There will be cases where individuals are so worried about the financial ramifications they feel under pressure to plead guilty’.
With a significant difference between the charge for a guilty plea, to that of a not guilty plea, especially for summary and either-way offences, it can be seen why defendants may feel pressured into pleading guilty. Max Hill QC goes on to explain that, ‘an ordinary person charged with an offence of dishonesty, for example, might have a genuinely triable issue in their case and this places them under more pressure to plead guilty’.
Nick Bano, pupil barrister at 5 Pump Court, stated: ‘Typically, lawyers only have a few minutes to advise their clients on plea at a first appearance: to assess the strength of the evidence and decide whether the prosecution’s case can be made out. A person charged with an offence will now have to think carefully about whether they can afford to stand trial. The financial impact of a conviction on the defendant’s family will hang oppressively in the air’.
Additionally, the fees are in no way means tested. Therefore, they apply to all defendants equally, regardless of income. This has led lawyers to question whether convicted defendants — many of whom are on state benefits — will even be able to pay the new court fees. For the poorest, the new fees are likely to contribute towards the vicious cycle of debt, which often leads to further crime being committed. In light of such, Mr Grayling’s view, that ‘criminals should pay for their crimes’, soon begins to lose favour.
Civil court fees
The Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015, which came into force on the 9th March 2015, amended The Civil Proceedings Fees Order 2008 to significantly increase the fees payable to commence proceedings within the civil courts of England and Wales. Significantly, fees for claims valued at £10,000 or more will now incur a fee of 5%, capped at £10,000. To claim £200,000, prior to the changes, the court fee was £1,515. That fee is now £10,000.
The new fees, which represent an increase of up to 622% for claims worth £180,000 and above, will deny justice to those who need it most. Court proceedings, in personal injury cases, can help clients whose lives have been irrevocably damaged through injury or negligence to obtain redress. If those proceedings don’t happen because fees are unaffordable, innocent victims will be prevented from receiving their rightful compensation; which is a clear erosion of justice. Lord Pannick stated that ‘for litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries… Unscrupulous debtors will be far less likely to pay up if they suspect that their creditor cannot afford the court fees.”
The fee increase will also damage London’s reputation as a centre of excellence for resolving disputes. Court fees are a decisive factor in the decision as to which jurisdiction in which to resolve disputes; as evidenced by the British Institute of International Comparative Law’s research. As London’s reputation for legal services directly impacts the UK economy, the increased fees will jeopardise London’s attractiveness as a global legal centre. International clients will take lucrative business away from UK law firms, which will have knock-on effects for the wider economy. The most senior judges in England and Wales, headed by Lord Thomas of Cwmgiedd, have expressed fears that the increases could drive work away. To illustrate this, they said that, ‘the fees proposed are 25 to 100 times greater than those payable in New York. A real concern will be uncertainty over future fee increases and the possible imposition of daily hearing charges putting major litigators off London, particularly as commercial cases can take years to develop’.
Moreover, the Order’s premise, Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, which sanctions the Lord Chancellor to prescribe fees above cost, is a direct contravention of clause 40 of Magna Carta. Moreover, it is a blatant violation of Article 6 of the ECHR. Strasbourg held in Kreuz v Poland (2001) that a court fee of 6-7% of the value of the claim was disproportionate. Additionally, in R v Lord Chancellor, Ex parte Witham , the court declared a similar Order increasing court fees ultra vires. Lord Pannick told the House of Lords that: ‘Now for his finale before the general election Mr Grayling is undermining basic access to justice in the courts, by seeking to make money from small businesses which simply want to enforce their contractual rights and from victims of personal injury seeking to obtain compensation from the wrongdoers. That is not a legal heritage of which anyone could be proud. If you wrap yourself in Magna Carta, as Mr Grayling sought to do last week at the Global Law Summit, you are inevitably and rightly going to invite scorn and ridicule if you then throw cold water over an important part of our legal heritage.’
In defence of the fee increases, Lord Faulks said that ‘litigation is very much an optional activity. Before suing, you need to be pretty sure you will win and that the defendant will pay up. If the claim is successful, court fees will be paid by the defendant’. However, The Lord Chief Justice stated that ‘fees of £7,500 on a claim of £150,000 were likely to have a disproportionately adverse impact on small and medium enterprises and litigants in person. Litigants would have to pay the money up front. In cases where damages were not specified in advance, including some personal injury claims, the maximum fee of £10,000 would be payable, even though that sum might be completely disproportionate to the damages ultimately recovered’.
LLB (Hons) (1st)