Increasing Statutory Maxima: A Fine Idea In Theory

Increasing Statutory Maxima: A fine idea in theory On the 10th June 2014 the coalition government announced that it intended to increase the scale of fines issued by magistrates; the changes are noted in table 1.1. The use of fines as a Magistrates' Court sentence has therefore become subject of debate. Newspaper articles that followed the announcement spoke of speeders being fined £10,000, and those who sell alcohol to children being given unlimited fines. The applicable fine level depends on the drafting of the statute that created the relevant offence. Fine Level Current Proposed Level 1 £200 £800 Level 2 £500 £2000 Level 3 £1000 £4000 Level 4 £2500 £10,000 Level 5 £5000 Unlimited

In England and Wales the fine represents the most common sentence of courts dealing with summary offences. For the last 10 years fines have been the sentence imposed in 82% of all summary offences. Such sentences then are the 'currency of justice' (O'Malley, 2009) and have the capacity to appear little more than 'just another bill to pay' (Ibid: 108) or a 'price or payment ... buried in daily life' (ibid: 23). Examples include most minor motoring matters, speeding, careless driving, drink driving as well as more traditional non motoring offences, such as shop theft, assault, disorderly behaviour. The list is quite extensive. Perhaps, then, increasing the statutory maxima reflects a desire from the government to increase the price of offending. Indeed Jeremy Wright, Justice Minister, is reported to have said that 'financial penalties set at the right level can be an effective way of punishing criminals and deterring them from further offending.' (Guardian, 2014) A key aspect of deterrence is the desire to increase costs so that people are incentivised into compliance, but a brief overview of deterrence literature would disabuse Mr Wright of the notion that increasing the severity of punishment (the price) deters people from crime in the long term (see Nagin, 2011). Nonetheless, deterrence remains the primary justification offered for the changes, with the proposals significantly increasing the statutory maxima that can be imposed for offences; each fine level has been quadrupled. These levels had not changed since the Criminal Justice Act 1991 which perhaps suggest another impetus for change. Allowing for general inflation of 87.3% between 1991 and present, the maxima represent a significant increase in the overall maximum fine amount. In order to understand whether these increases could possibly have a deterrent effect by increasing the severity of punishment, one first needs to understand whether the maximum fine levels have much impact of fining practice. Here the evidence is problematic for the government. The relationship between statutory maxima and average fines Although the professed aim of the change was to provide an effective deterrent by increasing the severity of maximum sentences, the evidence of previous increases in maximum fine levels suggest that maxima have little to no overall effect on the levels of fines imposed. Two cases are instructive of this approach; the offence of littering and the offence of selling alcohol to person under the age of 18. Littering was first criminalised in the Litter Act 1958. The maximum fine was set at £10, a not insignificant sum at the time. This was raised in 1967 under the Civic Amenities Act to £100. It was raised again in 1982 to £200, in 1984 to £400 and in 1990 to £1000. Whilst these figures represent the potential maximum, it is more instructive to examine the average fine for these offences during these periods. Unfortunately statistics are not available for the average fine for the period 1958-1969, but they do exist from 1969 onwards. Three years after the Civic Amenities Act 1967 raised the maximum to £100, the average fine imposed stood at £5.20. By the time of the 1984 change (max £200) the average fine stood at £26 and by 1991 (max £1000) the average fine was £55. Thus changes to statutory maxima fine levels have, in the past, had little to no impact on the actual fines imposed in the Magistrates' Court. Instead, in this case, the average fine level grew roughly in line with inflation. Between 1967 and 1984 inflation was 464.77% giving an expected average fine level of £24.16 (real level £26), by 1991 that figure would have been £42.29 (real level £55). This may suggest the 1990 increase did have some impact, although with the growing focus on environmental harm during that period the effect of increasing statutory maxima may have had less of an impact on magistrates' thoughts than an increasing societal distaste for littering. A more recent offence that serves as a further warning against relying on maximum fines as an indication of magistrates practice is the sale of alcohol to persons under the age of 18. The Licensing Act 2003 replaced the Licensing Act 1964, and increased the maximum fine for the offence of selling alcohol to children from £1000 to £5000. The statistics suggest, again, that an increase in statutory maximum had little effect on the average fine level. From 1991 to 2003 the average fine was £221.29, and from 2004 onwards the average fine level is £285.80. Indeed in the first two years of the licensing act the average fine level actually decreased from £253 in 2003, to £238 in 2004 and £246 in 2005. What this demonstrates is that increasing statutory maxima for fines has little impact on the actual practice of fining in the Magistrates' Court. There is one very good reason for this: the Magistrates Sentencing Guidelines A fine guide to a financial penalty The Magistrates Sentencing Guidelines (MSG) specifies three levels of fine, Band A (50% of relevant weekly income (range 25-75%)), Band B (100% of relevant weekly income (range 75%-125%)) and Band C (125% of relevant weekly income (range 125-175%)). In arriving at a fine level magistrates must take into account two factors; the seriousness of the offence and the financial circumstances of the offender. Maximum fine levels are specified but only so that magistrates do not exceed that limit. How magistrates obtain 'relevant weekly income' is relatively straightforward. They ask each defendant to fill in a 'statement of means form' (Form MC100) which asks for the relevant incomings and outgoings of the defendant. Defendants are reminded when filling in this form that 'it is an offence: to make a false statement, and / or to knowingly fail to disclose material facts' (MC100 From). However, the author's own research suggests a significant concern from magistrates is that the completed MC100 forms are, at times, fictitious. Given the importance of 'relevant weekly income' in magistrates' fining decisions and the disbelief that magistrates felt towards a defendant's statement of income, an FOI request was submitted to the Crown Prosecution Service for data on the number of prosecutions for 'making a false statement and / or knowingly failing to disclose material facts' on an MC100 form. The reply was hardly surprising. Just one offender had been prosecuted in the last five years for these offences, and the details of that case had been destroyed. Therefore it is not possible to know whether the defendant was even convicted. Thus the extent to which Magistrates at present are imposing fines on the defendants' actual relevant weekly income is debatable. Quite what effect increasing the statutory maximum will have on defendants' honesty on the MC100 form is unknown; it would be surprising if it made defendants more honest about their income. This is not to suggest all defendants are dishonest on the means form. Nevertheless some defendants, who perhaps have been found guilty of dishonesty offences, are at present trusted that the MC100 form they have provided is not dishonest. This is an interesting state of affairs. Conclusion In summary, then, increasing the statutory maxima has to date had little impact on actual fine levels imposed in the Magistrates Court. Certainly there may be some effect for the more wealthy defendants that make it to the Magistrates Court. The successful footballer, for example Ashley Young (who was banned from driving in January 2014 for speeding) and who earns £116,000 per week, may now have to pay 8.6% of his weekly income as a fine for speeding, instead of the current 2.1%, assuming the maximum is imposed. This is clearly an improvement, but it is still nowhere near the normal 'relevant weekly income' taken into consideration with the average offender (between 50%-175%). Perhaps it is time once again to look at the thorny issue of 'day fines' which link fine levels to an offender's daily disposable income (Moxon et al, 1990). Certainly, in terms of sending a deterrent message to criminals, the evidence suggests that the message gets significantly diluted in practice. Whilst increasing statutory maxima may allow the government to appear tough in the fight against crime, in reality it is likely to have little impact on sentencing practice or indeed the behaviour that the fines seek deter. References Moxon, D., Sutton, M., & Hedderman, C. (1990) Unit fines: Experiments in four courts Research and Planning Unit Paper 59, London, Home Office. Nagin, D (2011) Deterrence: Scaring Offenders Straight In Cullen, F. T., & Jonson, C. L. (2011). Correctional theory: Context and consequences. Sage Publications. O'Malley, P. (2009) The currency of justice: fines and damages in consumer societies. Oxford, Routledge Cavendish