28 October 2008

Offender levy for victims of crime and the Law Commission

A comment on National Radio's law and order debate this morning prompted me again on the issue of an offender levy for victims of crime. First, some of the merits of the proposal are discussed in a Law Commission Discussion paper recently released, with it concluding that "there are a number of significant issues and potential problems with a levy system". > Law Commission, Compensating Crime Victims (17 Oct 2008) The full extract on this point is below.

Imposing an Offender Levy 4.73 Imposing a levy on offenders at sentencing would be a way of raising revenue that could be ring-fenced for victims’ services. It would provide some guarantee that funding would be available, although it is not clear how much. It may also be seen by some as an appropriate way of bringing home to an offender the consequences of his or her actions by imposing an additional punishment that has a direct link to the victims of crime. Those who see a levy as having a benefit of this kind have contrasted it with other sanctions such as fines and imprisonment, which generally have no apparent connection with the consequences of the offending for the victim. 4.74 Notwithstanding these possible benefits, there are a number of significant issues and potential problems with a levy system. 4.75 There is an issue about which category of offenders it should apply to. For example, should it apply to everyone regardless of penalty or should it be confined to offenders who receive particular kinds of penalty such as fines? On the one hand, it would be odd to confine it to offenders who receive fines, since whether or not a levy was imposed would then depend upon decisions unrelated to the purpose of the levy. On the other hand, if everyone, including those sentenced to imprisonment, was subject to the levy this would increase the inevitable problems with collection. 4.76 Whatever the range of offences to which it is applied, the financial circumstances of many offenders already impact on the making, amount and payment of sentences of reparation, as well as fine collection, and introducing a levy would exacerbate this. It would be possible to set the amount of the levy at such a low rate that it would not make any, or would only make a small discernible, difference to the offender’s financial situation. However, that would clearly reduce the amount of revenue that could be raised. There would be particular difficulties with imposing levies on persons who have been sentenced to long-term imprisonment. Moreover, the non-payment rate of small levies imposed on all offenders would probably be so high that the administration costs of enforcement would exceed the amount collected. 4.77 If levies of the same amount were imposed on all offenders, that would raise proportionality issues: why should an offender convicted of a very minor offence without any direct victim at all pay the same amount as an offender convicted of rape or wounding with intent to commit grievous bodily harm? 4.78 There would also be issues about whether the levy should have priority over reparation and fines or vice versa. If the levy had to be paid before a sentence of reparation, victims may feel aggrieved that their particular harm or loss was not being addressed first. In addition, if it applied to prisoners and other offenders against whom reparation was not ordered, the victim might feel aggrieved the state was paid while he or she was not. On the other hand, if priority were given to the payment of reparation sentences, the prospects of the offender paying the levy would be further reduced. Similar arguments can be advanced in relation to the payment of fines; if the levy had to be paid before a fine, it could detrimentally impact on fine collection and, if the fine had to be paid before the levy, it would be more difficult to ensure payment of the levy. 4.79 More generally, there are two core problems with using levies on offenders to fund victim services. First, it is relatively unpredictable. The level of funds would fluctuate from year to year based on decisions that are unrelated to the question of what funding should be available. While this could be adjusted by changes in government funding to make up any shortfall, any adjustment would be after the event, creating uncertainty for victims’ services which need to be able to plan their activities. 4.80 Secondly, there is an argument that earmarked funds of this sort are inherently undesirable because they bypass the normal process of government priority setting. Ordinarily, funding for core government activities and initiatives, such as policing, crime prevention, health and education, are matters for government determination. The level of funding for victim support services should equally be a matter for government determination. Earmarked funds mean that the level of funding is not decided by elected representatives but instead driven by unrelated factors. In this sense, they can be said to bypass the ordinary democratic process. 4.81 In the Commission’s view, therefore, if an offender levy were to be introduced, the proceeds from it should be paid into the consolidated fund as a contribution to the funding of victim services. Government decisions about the level of funding should not be dependent on the size of that contribution.

Q18 Should a levy be imposed on offenders? Why? Q19 If so, on what categories of offenders should it be imposed? For example, should it be imposed on traffic offenders, including those who commit infringement offences? Should it be imposed on offenders sentenced to imprisonment? Q20 Should a levy take priority over reparation and/or fines? Why? Q21 What should the money raised be used for? Do you agree with the Commission’s view that it should be paid into the consolidated fund rather than an earmarked pool?

Secondly, and the point that originally raised my eyebrows, was the fact that the Law Commission released a paper (albeit an issues paper) during the election campaign that commented on a policy held by a major political party (see National, "Policy on Victims of Crime"). I would have thought the nature and role of the Law Commission and the conventions about the neutrality of the public service agencies would have militated against releasing such a document in the pre-election period, especially when it could have readily been deferred until after the election.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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