New court fees leave decisions on the burden of proof at risk of being secondary to whether defendants can afford to plead not guilty.

It is perhaps ironic that in the year we invited dignitaries from across the globe to celebrate 800 years of the rights enshrined in Magna Carta we also dealt a life-threatening blow to the central remaining right enshrined in that charter.

Among other things, Magna Carta provided that: no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; We not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

Selling justice?

There are several strands of research together with idiosyncratic examples which suggest justice is not blind. As of 13 April 2015 we no longer suspect but know that at least one personal characteristic will be central in our ability to access the justice system. A citizen’s right to defend themself against the might of the state will be overtly linked to their ability to pay if they are unsuccessful in that defence.

We have an adversarial justice system, central to which is not the search for the truth but a presumption of innocence. That presumption is moved only when the Crown proves beyond reasonable doubt that the defendant is guilty. The system is made up of individuals who present and test the evidence, the tribunal then coming to a decision having applied their common sense and life experience to the evidence. Two different magistrates or juries hearing the same evidence could legitimately come to a different decision as to guilt or innocence.

It is that context which makes the imposition of court costs on conviction by virtue of The Criminal Justice and Courts Act 2015 so dangerous.

Defendants will inevitably have to take into account whether they can afford to defend a case notwithstanding a genuine belief in their innocence. Those advising defendants will be remiss if they fail to advise on the potential costs involved. It is disingenuous to suggest that the defendant - already scared by the very idea of going to court - may not be scared witless into a guilty plea when faced with the additional prospect of costs on conviction.

The fictitious ne’er-do-well that the legislators envisaged is not likely to be swayed or persuaded to plead guilty when faced with the difference between court costs of £900 on a guilty plea and £1,200 after a Crown court trial. A foreseeable though likely unintended consequence of the scheme is that a hardened defendant with insufficient means or possessions cannot pay either fee. As a result of the fees there are fewer reasons for not having a punt at a trial.

So, in fact, the people most likely to be adversely affected are those for whom the fees are a genuine leverage in respect of plea. This leaves decisions about the burden and standard of proof at risk of being secondary to whether the citizen can afford to exercise their right to defend the case.

I may be wrong but this this looks and sounds a lot like selling justice.

Sandra Paul is a solicitor in the criminal litigation team at Kingsley Napley LLP