New court charges will have ‘significant impact’ on low-income protest defendants

From today, people who plead guilty in or are found guilty by a Crown Court or Magistrates’ Court will face an additional fee – on top of any fines and other costs – of up to £1200 towards the running of the court.

Introduced days before the dissolution of Parliament and without consultation, the new Criminal Court Charge is neither means-tested nor linked to the severity of a defendant’s sentence. Those who plead guilty in a magistrates’ court face paying an automatic additional £150 for court costs.

However, if a not-guilty plea is entered, a trial goes ahead and the defendant is subsequently convicted, this extra cost rises to £520 for a summary offence (one heard by magistrates without a jury) and £1000 for an ‘either way’ offence (one where the defendant can then either consent to be tried by the magistrates or opt for trial by jury at the Crown Court).

In a Crown Court, the extra cost following a guilty plea is £900, increasing to £1200 after conviction following a trial (see a full table of costs here).

Both the Law Society and the Magistrates Association have expressed concerns that the charge may encourage low-income defendants to plead guilty rather than risk the possibility of extra substantial costs. This prospect is made more likely by cuts to legal aid, with a falling number of legal aid funded criminal trials at magistrates’ courts and a survey published in January showing that one in five defendants seen by magistrates are representing themselves.

For protesters, the Criminal Court Charge will have a significant impact on anyone arrested, tried and convicted. An individual defending a public order charge of affray, for example, will face extra costs of £1000 to £1200 if convicted – on top of their sentence and other (probably substantial) prosecution cost orders.

However, it is at the lower end of the scale that the charges are likely to become most disproportionate. A person arrested for aggravated trespass, for example, may face a fine of between £200 and £300, but also a flat fee of £520 for a magistrates’ court trial if convicted. The new charge therefore places a potentially large financial burden on anyone who chooses to part in non-violent civil disobedience (like climbing onto the roof of an Elbit arms factory to protest against Israeli arms sales, for example where arrest for aggravated trespass is inevitable).

For the majority of protesters, the thought of facing criminal charges and a trial is extremely stressful, even if they have a good defence and a belief that their arrest was unlawful. The outcome is always uncertain and, inevitably, defendants are more likely to choose to fight their cases if they know they can afford to pay fines and costs if they lose. We suspect that once the impact of the Criminal Court Charge becomes clearer, it may discourage some, especially first time and low-income campaigners, from taking part in certain protests where intentionally aggressive policing raises the risk of arrest – a demonstration at an anti-fracking drill site for instance.

However, whilst the legal profession has focused largely on the pressure these charges place on defendants to plead guilty, Netpol believes it may also lead to changes in police behaviour and tactics. We plan to monitor whether it leads to an increasing confidence in the highly indiscriminate and controversial use of mass arrests and, in particular, whether that in turn leads to more resultant criminal charges. Currently few of all these arrests ever make it to a court: of the 182 Critical Mass cyclists arrested on the eve of the London Olympics in 2012, for example, only nine people were prosecuted and only four of these were ultimately convicted. We will wait to see whether a greater expectation that protesters will plead guilty encourages the police to press charges and bring protesters to court more often and on less certain evidential grounds.

Ultimately, the best way to ensure that individuals arrested during a protest do not feel forced into making a hasty decision, based on worries about money and about how to cope with a court appearance, is to ensure that they are not left isolated. The work of Netpol member Green & Black Cross in organising protest defendants’ support groups has been vital to ensuring this. So too is the invaluable evidence gathered by legal observers, which has repeatedly helped to undermine misleading police testimony and secure not-guilty verdicts.

The potential impact of the new Criminal Court Charge is one more reason why campaign organisers need to ensure they ask for legal observer support at their protests – and why, if you can help, we need more people to train and volunteer to carry out this important supporting role.

Contact GBC Legal at gbclegal [at] riseup.net for further details about future legal observer training.