Analysis of the law of Financial Penalities

Every offence was graded by way of its severity; from 1-50, this would be multiplied by the offender’s disposable income, which would be worked out via a means assessment form.

Within two years the Home Secretary did not hold the same view as the systems supporters, and the system was dropped.  This was after pressure from both magistrates and the media.  The systems implementation was not that of the pilot scheme. In the actual system, the price of units went from £3-£20 and £4-£100.  This resulted in some absurd rulings which forced the change, “One of the most farcical results was a £1,200 fine - reduced to £48 on appeal - on a man who dropped a crisp packet.”. Middle class Tory supporters were also being charged with the same fine as millionaires for speeding fines, this was due to the fact that their disposable income was over £100. The best example of the systems inconsistency can be seen when Mr Smith, a pensioner was fined £3200 for his first drink driving offence, the same magistrates fined an unemployed man, who was twice over the legal limit only £48.  Public opinion and perception was manipulated by the scrutiny and stories written by the tabloids regarding the system.  Added to this, the magistrates also resented it.

The magistrates who used the system felt that it restricted their independence.  There were several public resignations, including that of Paul Gelhart, who used the system to fine an unemployed burglar with seventeen previous convictions, £48. A survey conducted in North England six months after the system was introduced found that contrary to this, a majority of magistrates preferred the system, and that their unrest lay in its implementation.  This was even though 28,000 magistrates throughout the country had undergone long consultation and training prior to the acts implementation in October 1992.

The Criminal Justice Act 1993 bought about further reform, this allowed the magistrates more scope in their judgements; due to the new development, the court would have to consider the defendants financial circumstances while making a judgement.  The government stressed in its white paper, “Crime, Justice and Protecting the Public” that’s the abolition of the unit fine system was not a retreat from the principle that offenders should be fined according to their financial status, but that they thought that the 1993 act gave the courts leniency to reach this goal.  Gavin Dingwall writes that there was concern that leaving such discretion to the court would lead to inconsistency, though I see it as the ‘middle ground’ in the search for equality.

The current practise on fine law is set by Section 164 of the Criminal Justice Act 2003, this is a codified version of the 1993 act.  It lays out four factors that the magistrates must take into account when making a decision. These are the individuals financial circumstances, the amount of the fine should reflect the seriousness of the offence, take into consideration the circumstances of the offence.  Lastly the court has the ability to both increase or reduce the amount of the fine, depending on the offenders financial circumstances, previously with the 1993 act they could only be reduced.

This act may have only been in force since April 2005, but already there has been a government Bill on a proposed reform, of which section 43(2) suggests a unit fine style system. This opinion is also shared with professionals such as Dr Robin Moore, who suggest a new two stage system.  First, there would be a fine for a set for a specified mount of weeks, depending on the seriousness of the offence.  Secondly, this amount would be set according to the offender’s disposable income, set at a minimum and maximum amount to maintain proportionality for the offence, to allow equal impact but at the same time punish the offender.

Though not even in force yet, there has already been criticisms of the proposed new law by Lord Justice Rose, calling it”conspicuously unclear in circumstances where clarity could easily have been achieved”, he went on to say that, although barely in force, that provisions of the Criminal Justice Act 2003 had been “bought into force prematurely before appropriate training could be given”.  Surely the government should have learnt from its mistakes of poor implementation on this law in the past, and should make every effort to bring clarity to it.

The law fines may not always be clear, though it is there for magistrates to interpret and implement as they see fit.  However, there seems little point in using the sentence if it can not be enforced.  Between 2000-02 the average payment rate across England and Wales was 59%, £57.9 million were written off and £90.4 million were cancelled.  There are several reasons for this high amount, but there seems to be two categories of none payers, those who can not pay, and those who will not pay.  Until recently, if you did not pay your fine, for whatever reason, you would be sent to prison; this view has changed in recent years, making it that this sentence is now used, only if all the other alternatives have failed.

Recent Home Office reports have cumulated in three sanctions that the court must carry out while using the sentence, these are enabling, ensuring and enforcing the fines.

Enabling methods include allowing the offender to pay the fine in series of instalments, these instalments normally run for the period of a year; however, as decided in Olliver, it can be for a longer period in exceptional circumstances.  While allowing these circumstances, Lord Lane C.J. made it clear that “one of the objects of the fine is to remind the offender that what he has done is wrong”.  Section 85 also enables the magistrates the option of remission, to void all or any part of the fine, if there has been a change of circumstances since his conviction.

The court can also ensure that they get the fine by taking the offenders money before it even gets into theirs hands.  An attachment of earnings order  allows the court to take the money directly from the offenders wages, the court can take the money directly from the offenders income support.  The courts also has the power of the Money Payments Supervision Order, allowing the offender to be searched for money.

The magistrates have the most powers to enforce the fine, these range from a driving disqualification to having the fine increased by 50%.  This scheme has been piloted in several areas around the UK, and also gives the offender an incentive to pay the fine early, as it would be reduced by 50%.  The enforcement measure vary depending on whether your classified as a “can’t payer” or a “won’t payer”.***

Case law has shown that the courts are increasing favouring these alternatives to sending the offender to prison.  In Oldham Justices, Simon Brown LJ said that prison should only be used if “no sensible alternative presents itself”, a point that was echoed in St Helen’s Justices, which stated that prison could only be used if all other enforcement methods had been attempted or used first.

Statute law followed the cases lead and the Criminal Justice Act 2003, though not fully in force yet, states in section 300, that instead of a prison sentence, the offender can be ordered to comply with unpaid work or a curfew order with electronic monitoring.  This does not aid the court in getting more of the fines, and although the systems will use the tax payers money to implement, it will not be as much as the £120 a day that it costs to imprison an offender, it’s submitted that this is a step in the right direction.

Therefore it can be seen that with the modernising of the law, the ways of enforcing it have followed the trend.  The one aim that has always been there is that of equal impact, as mentioned above.  Obviously a £80 fine is going to have little effect on a millionaire, but a major effect on somebody on benefit, in the same way, the thought of a short prison sentence may be acceptable by some and not by others.  This point was bought to the attention of the courts by the Home Office Advisory Group, stating that people with prison experience, high fines and family support would normally just accept a few days in custody to avoid paying the fine.  Similarly, should someone be punished if they “can’t pay” the fine in the same way and someone who just “won’t pay” the fine.

One suggestion on how to tackle this system again comes from Dr. Robin Moore who suggests a multi dimensional approach

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