The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 continue to drive judicial despair and resignations from the lay bench. Lucy Plumpton addresses an issue which raises the prospect of further injustice for Defendants.

Which charge should apply when a Defendant pleads to a summary-only offence in the Crown Court?

My client had been initially charged with one either-way offence (affray) and three summary only offences.

At his preliminary hearing in the Crown Court he indicated willingness to plead to the lesser, summary-only, offence under s.4 Public Order Act 1986 (intending fear or provocation of violence) as an alternative to affray.

A few months after this hearing, the Crown discontinued the three summary-only offences, and agreed to accept the s.4 POA 1986 plea.

At sentencing, the Crown Court judge queried which charge should be applicable under the Criminal Courts Charge Regulations, that relevant to the Magistrates’ Court or the Crown Court? In financial terms, the difference is great. The charge will be either £150 or £900 depending on how the Regulations are interpreted.

There is arguably a built-in conflict in the Regulations in this very situation, where a Crown Court finds itself sentencing for a summary-only offence where there has been no committal for sentence from the Magistrates’ Court.

Arguing for a lesser sum

On the one hand, this sentencing exercise could be viewed as analogous to a conviction in the Magistrates’ Court on a plea with a committal to the Crown Court for sentence. The only count on the indictment which prevailed was a summary-only offence. My client could well have been dealt with entirely in the Magistrates’ Court had this been the charge from the outset.

Regulation 3(2) and (3) require a Crown Court to charge the lesser CCC of £150 when sentencing on committal from the Magistrates’:

“The charge the Crown Court must order to be paid is the amount … which corresponds to the amount the magistrates’ court would have had to order had P not been committed to the Crown Court for sentence.”

The above passage seems to (fairly) reflect the fact that the Crown Court’s sentencing powers for a summary-only offence are limited to those available in the Magistrates’ Court.

It would surely be illogical and unfair if the Criminal Courts Charge were to be applied at the higher rate where a summary-only offence comes to be dealt with by the Crown Court only by virtue of the offence classification effectively being ‘downgraded’ partway through proceedings.

The risk of the top rate

The alternative reading of the Regulations leads to a much tougher result for the Defendant. The Schedule to the Regulations separates out charge levels for pleas to (i) summary-only offences and (ii) either-way offences dealt in the Magistrates’ Court (£150 and £180 respectively).

But the relevant Crown Court entry simply reads “Conviction by the Crown Court on a guilty plea: £900“. Therefore on a literal reading there is no distinction in charge between the different classifications of offence on a plea in the Crown Court.

This leads to the highly undesirable possibility faced by my client: to plead to a summary-only offence and be whacked with a £900 charge for the fact of that plea being entered in the Crown Court.

The Regulations favour the harshest penalty

The only source of (indirect) guidance in the Regulations suggests that if there is a choice or conflict, the court should opt for the largest sum. Regulation 3(5) and (6) say:

“Where more than one entry in column 1 of the table applies… [e.g. there is more than one applicable category in the Schedule, perhaps on account of convictions for both summary-only and either-way offences within the same proceedings] … The charge the court must order to be paid is the amount in column 2… which results in the highest amount.”

Common sense and general fairness should win the day

As was successfully argued in my client’s case, the classification of the offence should really govern the level of charge as a priority over the simple fact of the venue in which a Defendant enters a plea. He would never have been convicted in the Crown Court had the case against him started on the summary-only footing that it finished on.