Judge goes off piste … and pays ‘fine’ of man he’s just sentenced

Introduction

The story of the Judge who paid the £1 fine that he had just imposed for a sentence of theft was all over the papers today. What’s that all about?

Facts

It seems that Daniel Northridge appeared before District Judge Devas for two offences of theft. He was sentenced to a six month community order for stealing two Christmas cards. He then ordered a financial penalty to be paid of £1 (upon hearing that Mr Northridge had no means of support and could not realistically afford to pay anything), and then paid it himself.

The Daily Mail (above) said that this was a compensation order (whilst the headline called it a fine), the Telegraph reported it as a Victim’s Surcharge. We’ll go with that as it quotes a source from the Judicial Communications Office and it would seem to fit the facts.

Victim’s Surcharge and Compensation

We have covered Compensation Orders before. The Victim’s Surcharge was the brainchild of the last Labour government introduced in the Domestic Violence, Crime and Victims Act 2004 (introducing a new s161A-B Criminal Justice Act 2003). The idea was to make every offender pay a ‘surcharge’ (effectively a fine in all but name).

Originally this applied only when a defendant was fined. As of 1st October 2012 however, this is extended to every offender. The amount to be paid depends on the sentence – from £15 for a Conditional Discharge, up to £120 for life imprisonment.

This means that in a case like the one we reported on yesterday, Tony McCluskie, if he were to have been convicted of a crime that was committed after 1st October, he would have been ordered to pay £120 on top of the life sentence with a tariff of 20 years.

Isn’t £120 a bit insulting for someone who’s just lost a loved one?

Well, that was a genuine concern when they introduced it. We will have to wait for it to ‘bed down’ before knowing. But the comment from Javed Khan from Victim Support quoted above may indicate that the government didn’t think it through properly

Still, at least it’s bringing in a load of money for the government?

Ah. Well. That’s not exactly clear at this point. We do know that earlier this month the total of money ordered to be paid to courts that has not been totals £600 million. It is unclear exactly how much of that relates to unpaid victim surcharges, but it may be a fair few. This will almost all relate to surcharges added to fines. It is likely that the payment rate will be lower in relation to have been sent to prison.

Does the Judge not have any discretion?

No. But there may be a way round it if the Judge wants to bend the rules. Looking at the s161A Criminal Justice Act 2003:

   (3)Where a court dealing with an offender considers

     (a) that it would be appropriate to make a compensation order, but

     (b) that he has insufficient means to pay both the surcharge and appropriate compensation,

                 the court must reduce the surcharge accordingly (if necessary to nil).

This would appear to apply to a situation where someone steals £200 and a Judge would wish to make a compensation order to the victim. He passes a Community Order and assesses the defendant’s means, concluding that he only has £220 available. He should impose a surcharge of £60 (the amount that is triggered by a Community Order), but he can order compensation and reduce the surcharge to £20.

A sneaky Judge could consider that a defendant has no money to pay any order. In those cirucmstances, ordering a surcharge to be paid is a waste of time and would cost the public more money to attempt to enforce than it could ever recover. What if he then ordered compensation of a nominal amount, say £1? On one reading, this may allow him to reduce the surcharge to nil. It is a strained reading, but is one that introduces a welcome area of pragmatism into an otherwise mandatory system.

Is this what DJ Devas did in this case?

It seems to us that this is probably what he did. Creative thinking on his part certainly. Arguably he was wrong in law, but it is unlikely that the CPS would challenge this. Paying the £1 was perhaps a gesture, but it ensured that Mr Northridge’s file was closed and he could leave the court with the matter having been concluded. Good for him, but also good for the public as it saved money in the long run.

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

9 thoughts on “Judge goes off piste … and pays ‘fine’ of man he’s just sentenced

  1. awkeogh

    “Good for him, but also good for the public as it saved money in the long run.”

    Let us assume, as you have (and it is a fair assumption) that DJ Devas did set out to achieve the outcome in the way described above, not because it was correct as a matter of law, but because DJ Devas simply wished for that outcome.

    It is good for the defendant. I am not however sure it is good for the public as it would simply demonstrate that a Judge who has sworn to uphold the law chooses when he sees fit to ignore it. The raison d’etre of the judiciary is to uphold the law, not usurp the role of parliament when he or she sees fit. If what appears to have happened in this case did in fact happen then it is a poor day for the rule of law.

    Reply
  2. Lyndon Harris

    I think you have a very good point there Andrew.

    I suspect Dan was talking more in the short term and that, for the public, from a financial perspective, the course that the DJ took was a pragmatic and cost-effective one. After all, what purpose is served by imposing a financial penalty that the judge is satisfied the defendant is not able to meet?

    I am sure you would agree that there is certainly a place for pragmatism in the criminal justice system, however in this case is does seem that the judge’s actions went beyond mere pragmatism and strayed quite boldly into disregarding his judicial oath. In that regard I would agree with you.

    I’d be interested to hear Dan’s view. Perhaps it would have been more acceptable if the judge had reduced the surcharge and his counsel/solicitor had offered to pay the sum? I have heard of counsel paying nominal confiscation orders in the past!

    Reply
  3. Dan Bunting Post author

    That’s a fair comment Andrew. I was focussing more on the cost of the victim surcharge and the way it will inflate the amount of unpaid fines.

    I’m not a huge fan of Parliamentary sovereignty which is, after all, a Judge made rule of the Common Law which can be unmade by Judges – but I accept it is not for a DJ to do it in these circumstances!

    I guess the question is whether what the DJ did was merely ‘creative’ or was actually unlawful. If the former, then I still think that he was entitled to do it to ameliorate a poor law, if the latter, then I agree. It does send out the wrong message.

    @Lyndon – I think the days were solicitors or counsel will put the hands in their pockets are long gone! I have a slight feeling that it would be contrary to the Solicitors Code of Conduct even?

    It would certainly help if the exact facts could be clarified by the MoJ …

    Reply
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