Last reviewed 4 May 2015
Tim Ridyard, road transport regulatory lawyer at Woodfines LLP, outlines details of a new charging system introduced into all criminal courts in April, and explains its possible impact on commercial drivers and operators.
With effect from 13 April 2015, Criminal Courts charging came into force for the very first time. This follows the introduction of significant increases in other Civil Court and Employment Tribunal fees over the last year.
Criminal Courts charges were announced somewhat abruptly on 23 March, just before Parliament was dissolved for the election. They are introduced through the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015.
When can the charges be imposed?
This charge imposed on any defendant is not discretionary but has to be ordered in the Magistrates’ or Crown Court, unless certain specified exemptions apply, which will not pertain in most cases.
The charge does not apply if the Prosecution withdraws or discontinues its case or if the Defendant is acquitted after trial. However, in all other situations the charge is imposed, ie on a guilty plea or after a guilty verdict at trial. It should be noted that the Criminal Courts charge is imposed in addition to other court powers (eg fines, orders for prosecution costs and the ”victim surcharge” that is imposed in every case), regardless of type of offence or seriousness.
The justification for charges is extremely contentious, but ostensibly they have been introduced by the Ministry of Justice on the basis that no charges paid by the Defendant currently cover the cost of administering a criminal court case and the rationale that those who commit crime should contribute towards the cost of their court cases. Opponents of the charges argue defendants pay society through the sanctions imposed by a court, eg through fines quite apart from the unfair encouragement of guilty pleas entered for financial expediency, when it is for the prosecution to bring and prove its case beyond reasonable doubt.
A brief summary of the charges is as follows:
Guilty plea by post or in person for summary offence
Guilty plea by post or in person for either way offence
Conviction for summary offence after trial
Conviction for either way offence after trial
Guilty plea (any offence category)
Guilty verdict after trial (any offence category)
Failed appeal against conviction or sentence
There are clear anomalies in that a long sentencing hearing attracting a charge of £150 or £180 may take many hours to conclude. Conversely a summary or either way offence trial might be very brief and yet attract a charge of £520 or £1000. A Court dealing rapidly with a large number of guilty pleas by post could recoup huge charges very swiftly. The charges may in practice bear little relation to actual court time.
In the Magistrates’ Court, which handles most cases, the amount of the court charge therefore depends on whether the offence is summary or either way and whether the Defendant pleads guilty or is convicted after trial.
Categories of criminal offence
Criminal offences can be divided into three categories:
Summary offences — these are matters are ordinarily dealt with entirely in the Magistrates’ Court. In broad terms, these are the less serious offences ( including most road traffic offences), although some are imprisonable (maximum 26 weeks custody) and the highest fine level (Level 5 offences) is now unlimited, the £5000 limit recently being abolished. Examples of summary offences relevant to road transport operators and drivers are:
drink/drug driving offences
tachograph/drivers hours offences
operator licence offences
death by careless driving
construction and use offences, eg brake, tyre defects, mobile phone misuse.
Either way offences — these are capable of being dealt with by either the Magistrates’ Court or the Crown Court. They are dealt with in the Magistrates’ Court unless sent to the Crown Court due to their seriousness or complexity or where the Defendant elects Crown Court trial. Some examples of either way offences relating to road transport are:
falsifying drivers’ hours records, fraud, false instruments
fraudulent use of operator licences or vehicle discs
main health and safety offences
environmental law offences, eg no permit for waste operations
offences of dishonesty generally, including duty evasion.
Indictable offences are the most serious ones that must be committed or transferred to the Crown Court, eg murder, manslaughter, conspiracy.
Impact of these charges on operators and drivers
The impact of the Criminal Courts charges may not be great for cases where very significant fines are imposed as they might only amount to a small proportion of the total penalty. In many other cases, not least those of smaller operators and drivers, the impact may be very significant indeed. The charge imposed after unsuccessfully contesting a charge could well be greater than the fine imposed for the offence itself, even taking into account the fact that fines imposed after trial are greater than for guilty pleas by about a third.
The major controversy surrounding the Criminal Courts charge relates to defendants deciding whether to plead guilty or not guilty and the financial pressure that may be put on them. A defendant may have a very strong incentive to plead guilty when facing a massive charge imposed on top of any fine, prosecution costs and victim surcharge. The argument here is that this compromises the principles of equal access to justice, equality of arms and a level playing field in the criminal justice system. Unless the Regulations are reversed in the meantime, there are no plans to have a statutory review of the charge for three years.
The impact on road transport operators and drivers is this: they may have an entirely reasonable defence as a matter of law or of fact but must decide whether to pursue a Not Guilty trial, with the risk of receiving a hefty criminal court charge or whether to plead guilty as a matter of expedience.
An example of this dilemma might relate, say, to a drivers’ hours offence where there is a dispute as to the driving/rest calculations or where there is a dispute as to whether a journey is within or outside EU drivers’ hours rules — matters that on conviction must be reported to the Traffic Commissioner and affect the operator’s licence. This can be a very complex area where there is a fine dividing line between guilt or innocence. In such a case a Defendant might very well be minded to take the cheapest route out when there is an entirely reasonable and arguable defence.
There are limited exemptions where these court charges are not permitted. The one area which is most likely to apply in commercial vehicle cases is where a court imposes an absolute discharge This means no sentence is regarded as necessary or appropriate — this is often used by a court for construction and use (C&U) offences relating to vehicle defects such as brake issues or wheel loss where the driver and/or the operator could not have known of their existence. In such cases the Court is forbidden from imposing penalty points and often issues an absolute discharge (this follows a case called Hart v Bex). The Regulations seem to acknowledge that lack of culpability should be recognised by no court charges.
The criminal court charges also come on the back of an unfortunate development relating to defence costs that came into being in October 2012. Since that date it has not been possible for limited companies to recoup any defence costs if the case is withdrawn or they are acquitted after trial. Individuals (that includes sole traders, partners of a business) can recover only a fraction of their costs.
The net effect of all of this is that, if convicted after trial, the criminal court charges now apply but even if a Defendant is acquitted they have to pay all, or almost all, their own defence costs, regardless of the merits of the prosecution case being bought against them. An entirely hopeless or misguided prosecution could be brought by a prosecuting agency — eg DVSA, Environment Agency, police — with impunity but the defendant can recoup little or nothing for having to defend him/herself under this regime referred to by some as a tax on innocence.