Wednesday, 5 February 2014

Making crime pay? Thoughts on defendant contributions to criminal justice costs

On seeing the Lord Chancellor's announcement today that convicted offenders will pay a contribution towards the costs of running the courts, my mind wandered back to fieldwork I conducted last year with criminal defence lawyers at the 'Justice For Sale' meeting. One of the questions posed in the survey I distributed asked whether convicted defendants should pay a contribution towards their legally aided defence. Interestingly, a majority (64%) said 'yes', with only 31% disagreeing. Whilst the two proposals - a contribution to court costs and a contribution to legal aid - are not the same, they both share the same underlying principle ('make the offender pay') and relate to costs drawn from the same pot.

Some of the reactions so far - primarily on Twitter and comments on news articles - have criticised the proposal. One might be led to believe that the idea of the defendant making a contribution is therefore not supported by those within the legal profession. However, the response in my fieldwork suggests that the idea of a convicted client paying for the costs of prosecuting them (in some form) is not opposed as strongly as one might think. Indeed, in their response to the 'Transforming Legal Aid' consultation, the South East Circuit of the Bar proposed the very same idea now announced by the Lord Chancellor.

The criticisms levelled at both the Lord Chancellor's proposal and my hypotethical one (by respondents to the survey) are similar. Foremost among them is the practicality of enforcing such orders against defendants who cannot afford to pay or may have to be chased for payment. The former problem renders such proposals redundant - if a defendant has no money, the order is meaningless. In the event that enforcement costs more than the amount sought, the latter problem means that such proposals are a false economy. Ultimately, both problems risk making a farce of such orders.

This would not, of course, be universally true. The South East Circuit paper presents arguments suggesting that enforcement could be achievable in an economic way. It has also been pointed out that enforcing such orders against wealthy offenders - who have benefited financially from their crimes - could be more realistic. However, this is not without issues. There currently appears to be a discrepancy between costs/surcharges ordered by courts (e.g. confiscation orders) and their actual enforcement - in short, only a small proportion of the proceeds of crime are actually being reclaimed. Adding more orders to the bill seems pointless.

In addition, one could argue that wealthy offenders are more likely to be able to 'hide' assets; a protection not so readily available to indigent offenders. This infers that such proposals could disproportionately penalise those with fewer assets. These defendants are also likely to be of a lower cost to the system than wealthy ones, who may be involved in complex and costly trials for fraud or drug offences, for example. Moreover, one might argue that certain costs (e.g. legal representation) could be paid for by wealthy offenders from their own assets, rather than freezing those assets and compelling an application for legal aid - which must then be recouped by the state at a later stage.

In general, the addition of another cost for offenders to pay - in addition to the existing victim surcharges and prosecution costs - seems needlessly complex and bureaucratic. It may well be that administering such orders will cost more than they are worth. If, as proposed in the fieldwork, a legal aid cost were also added, the system would seem rather ridiculous. Perhaps all of these costs could be rolled into a single order, distributed later on. Maybe, in practice, this is the reality; maybe to do so would also be costly, since some authority would have to be responsible for pursuing and distributing the money reclaimed amongst the beneficiaries. Perhaps the proceeds of this 'single order' should be returned straight to central funds, with the increased income allowing for increased funding to the CPS, HM Courts and Tribunals and legal aid providers, with an automatic payout to victims. One suspects that the individual beneficiaries would object, on the basis that they would never see the money.

A last thought. Since the courts service - including the payment of staff, running of the estate, etc. - exists in perpetuity and regardless of whether a defendant is convicted or not, is it really fair to charge convicted offenders for its operation? Those who are acquitted after a trial get equal use from them. They exist as a public service for the good of society, whether people are engaged with the system or not. In contrast, were a defendant to plead not guilty, obtain the benefit of legally aided defence representation, and then be convicted, he or she would have created a cost that would not have existed had he or she pleaded guilty. In this circumstance, it seems fair to ask for a contribution towards the cost of a service. Then again, the same scenario means electricity, heating and staff costs which could have been avoided.

Clear opposition to the Lord Chancellor's proposal amongst the legal profession would contrast with the responses in my fieldwork. This might be regarded by cynics as stemming from self-interest: convicted clients can pay for my costs but not those of the courts. This is probably unfair and inaccurate. No respondents expressed the view that costs should specifically benefit them - merely that contributions could help fund the justice system. Moreover, the contribution would likely be so small as to make little direct difference to the income of individual providers.