Debt Advice Handbook (13th edition)Chapter 13: The magistrates’ court 2. Financial penalties
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2. Financial penalties
A fine is the most common penalty imposed by magistrates’ courts in criminal cases. Magistrates can also impose ‘victim surcharges’, and make costs orders and compensation orders (see here). These are all known as ‘financial penalties’.
When setting financial penalties, the court must take the seriousness of the offence and the offender’s financial circumstances into account.1If no information is available, the court is entitled to assume a weekly income of £400. The court can remit all, or part, of the fine if the client subsequently provides evidence of her/his means: ss164 and 165 Criminal Justice Act 2003. If the client is on a low income (including benefits), s/he is currently deemed to have a weekly income of £110. The penalty is reduced if the client pleads guilty.
For offences committed on or after 13 April 2015, the client may have been ordered to pay a charge in respect of the court’s costs (known as the ‘criminal courts charge’). This is enforceable in the same way as a financial penalty. In the magistrates’ court, this charge could range from £100 to £1,000. The criminal courts charge was abolished from 24 December 2015, but clients on whom the charge was imposed before that date remain liable to pay it. For details of the different treatment of the criminal courts charge in bankruptcy and debt relief orders, see here and here.
The client may be required to complete a means enquiry form (available from the court office), although many clients who plead guilty and ask the court to deal with the matter in their absence do not provide information about their means. HM Courts and Tribunals Service has its own statement of means form (Form MC100), which can be downloaded from gov.uk/government/collections/court-and-tribunal-forms.
Costs are at the discretion of the court, but are usually ordered and fixed at the time.
If a client cannot afford to pay both a fine and compensation, the magistrates should order the client to pay compensation rather than impose a fine as well.
If the offence was committed after 1 April 2007 and the client is ordered to pay a fine, or a fine and compensation (in either case with or without costs), s/he may also be ordered to pay a ‘victim surcharge’, currently set within a range of £32 to £181. This is used to fund services for victims and witnesses. If the client does not have the means to pay both the compensation and the surcharge, priority is given to compensation and the surcharge can be reduced to nil, if necessary. If the client does not have the means to pay both a fine and the surcharge, the fine should be reduced to enable the surcharge to be paid.
 
1     If no information is available, the court is entitled to assume a weekly income of £400. The court can remit all, or part, of the fine if the client subsequently provides evidence of her/his means: ss164 and 165 Criminal Justice Act 2003. If the client is on a low income (including benefits), s/he is currently deemed to have a weekly income of £110. »
Compensation orders
A magistrates’ court can impose a compensation order alongside a fine or other sentence and must give reasons for not making an order in cases in which it is empowered to do so.1ss1(1) and 35(1) PCCA 1973 A compensation order is intended to be a simple way for the injured party in a criminal case to get compensation without having to sue in the county court. Compensation orders are often made in cases involving criminal damage or petty theft. They are collected by the court and paid to the victim.
The powers to remit a fine (see here) do not apply to compensation orders. The only circumstances in which a compensation order could be changed are if:2s37 PCCA 1973
    •a client appeals against either the conviction or the compensation order. A solicitor is needed for this and there are strict time limits; or
    •subsequent civil proceedings demonstrate that the loss in respect of which the order was made was less than that stated in the order; or
    •a compensation order is made for stolen goods which are later recovered; or
    •the client has experienced a substantial reduction in her/his means, which was unexpected at the time the order was made, and they seem unlikely to increase for a considerable period.
Compensation orders are difficult to change. If a client is appearing in a criminal court on a charge that might result in a compensation order, you should advise her/him to take a clear statement of means with her/him. A representative should also be prepared to argue that, in view of the client’s other debts, s/he should not have a compensation order awarded against her/him. The court must consider a client’s financial statement and debts when making a decision.3s35(1)(a) PCCA 1973
Costs awarded with a fine or compensation order are treated in exactly the same way as the compensation order – ie, they cannot be remitted by the court.
 
1     ss1(1) and 35(1) PCCA 1973 »
2     s37 PCCA 1973 »
3     s35(1)(a) PCCA 1973 »
Payments
When imposing a financial penalty, the court can order:
    •immediate payment; or
    •payment within a fixed time; or
    •payment by instalments.
Magistrates’ courts are discouraged from inviting applications for time to pay and usually ask the client how much can be paid immediately. The court can search the client for any money that could be used to meet the financial penalty, but this power is rarely used.
Guidance to magistrates’ courts from the Sentencing Council is that financial penalties should normally be capable of being paid within 12 months. That also applies to payment of compensation orders, although in exceptional cases it may be appropriate to allow payment over a period of up to three years.1R v Olliver and Olliver [1989] 11 Cr App R (Sentencing) 10 If the client is unable to pay, this might be because there has been a change of circumstances since the penalty was imposed or that it was fixed without adequate financial information. In either case, consider asking for all or part of the financial penalty to be remitted – ie, totally or partially written off at a means enquiry (see here).
However, when applying for further time to pay or a remission, bear in mind that financial penalties are a priority debt and that they were imposed as a punishment, and this affects the court’s attitude to their recovery. Non-payment of a fine can be viewed as an attempt to avoid punishment.
The current fines enforcement scheme attempts to remove the need for hearings by giving fines officers the power to decide on the level of instalments and the enforcement step(s) to be taken. Once the fine has been imposed, therefore, a hearing before the magistrates is only likely to take place if the client appeals against the fines officer’s decision or if the fines officer refers the matter to the magistrates following a number of unsuccessful attempts to enforce the fine.
Payments are applied by the court in the following order:
    •compensation orders;
    •costs;
    •fines.
If the client defaults on payment, this affects any term of imprisonment s/he is also ordered to serve. However, if the magistrates’ court is collecting a Crown Court fine, the Crown Court will already have fixed the term of imprisonment the client must serve for defaulting on the payment of the fine, but not of any costs or compensation. Although the sentence can be reduced proportionately by part payment or remission, the magistrates have no power to vary the actual sentence.
Problems can arise if a client has more than one fine or compensation order. Courts do not always make it clear to clients how their payments will be applied, which can lead to enforcement action being taken on one matter, even though regular payments are being made in respect of another. Financial penalties can be paid either:
    •consecutively, with the client allowed to clear the oldest first with no enforcement action taken on later ones; or
    •concurrently, with payments credited to each outstanding financial penalty.
The client should be advised to request whichever method is in her/his best interests.
Debt advisers are likely to be concerned with the client’s difficulty in paying financial penalties after they have been imposed, rather than with the conditions attached on the day of sentence. You may, therefore, have to negotiate with HMCTS staff or bailiffs (enforcement agents) about unpaid financial penalties.
Fines (except parking or other fixed penalty offences) can be paid online using a debit or credit card. The client must have the letter giving notice of the fine to pay in this way, as it contains the relevant references.
 
1     R v Olliver and Olliver [1989] 11 Cr App R (Sentencing) 10 »
Transfer of fines
If a client moves to a different magistrates’ court’s area but still has a financial penalty to pay at the magistrates’ court in the area where s/he used to live, it may be advisable to apply to the original court for a fine transfer order to the new local court.1s89 MCA 1980 This should make payments easier to arrange.
 
1     s89 MCA 1980 »
Remitting fines
If the client’s circumstances have changed since the fine was imposed, the court can remit (ie, cancel) all or part of the fine.1s85 MCA 1980 There must be a means enquiry (see below). The court can also remit a fine that was imposed in the absence of information about the client’s means and, as a result, was set too high.
You should always argue for full remission of a fine if a person is on benefit or in serious debt (although the court may take into account the client’s financial position at the time the financial penalty was imposed and any other resources available to her/him). The magistrates should be urged to consider full or partial remission if the guidelines on the time for payment of a financial penalty have not been observed (see here).
The magistrates do not have the power to remit costs or a victim’s surcharge (see here) and can only remit compensation orders or the criminal courts charge in limited circumstances.
 
1     s85 MCA 1980 »
Lodging fines
If a client is serving a prison sentence, s/he can apply to the magistrates’ court to ‘lodge’ (link) any outstanding fines to the prison sentence (including where the client is serving a sentence for non-payment of a magistrates’ court fine). This has the effect of writing off the fine so that the client is no longer required to pay it following her/his release. Prison staff can provide clients with the necessary forms.
If the client has not dealt with the fine while serving her/his sentence, following her/his release s/he can attend a ‘fines clinic’ at the magistrates’ court and apply for the fine to be remitted (s/he will need to provide details of the fine and her/his release papers).
Means enquiry
Before the court can remit a fine or take certain types of enforcement action (see here), there must be a hearing (a ’means enquiry’) at which the client is present and which looks at the client’s ability to pay the financial penalty and reason for her/his default. The client can be questioned by the magistrates’ clerk or magistrates.1R v Corby Metropolitan Council ex parte Mort, The Times, 12 March 1998
Magistrates may have little knowledge of the benefits system and of many items of ordinary expenditure, and you should ensure that a full financial statement is prepared and given to the magistrates, even if this means adding considerably to the court’s own form. This should include an explanation of any essential expenditure that you believe may be questioned by the court. In addition, magistrates may not take into account items of expenditure that the client has prioritised over payment of the financial penalty, but which the magistrates regard as non-essential. Magistrates usually take account of expenditure on housing (including fuel), clothing and food for the client and her/his dependants, water charges and council tax. However, there is no consistent approach and you should establish local practice.
Information should also be made available about the reason for any non-payment, the client’s financial position at the time of the previous order and her/his future prospects, as appropriate.
 
1     R v Corby Metropolitan Council ex parte Mort, The Times, 12 March 1998 »
Fixing a return date
Following a means enquiry, magistrates may order payment of the amount due by a certain date or fix an amount to be paid periodically and give a date when the client must return if s/he has not paid either the amount due or all the instalments. If the client fails to appear, a warrant of arrest can be issued. You should try to ensure that the order is one with which the client can realistically comply with or, if s/he defaults, that s/he can show this was not due to her/his ‘wilful refusal’ or ‘culpable neglect’ (see here).
Varying and setting aside a financial penalty
A magistrates’ court may vary, or even rescind, a sentence or other order it has made (but not a sentence or order made by the Crown Court) if it appears to be in the interests of justice to do so.1s142 MCA 1980, as amended by CAA 1995 Although this is a discretionary power, it could be a quick and effective way of cancelling or reducing a financial penalty that has been wrongly imposed or is demonstrably too high. There is no time limit on making the application and the client does not have to show any change of circumstances since the financial penalty was imposed. Note: this provision cannot be used as a way of asking the court to take back a warrant of control from bailiffs (enforcement agents) (but see further here).
In addition, if the case was dealt with in the client’s absence and s/he had no knowledge of the summons or the proceedings, s/he can make a statutory declaration to this effect. Since 7 October 2019, a declaration can be made before an assistant justices’ clerk or other nominated officer and the client does not need to be sent off to a solicitor. This results in the conviction being rendered void and the financial penalty being set aside. There is a new hearing and so this option needs to be carefully considered.2s14 MCA 1980 The statutory declaration must be delivered to the magistrates’ court within 21 days of the proceedings first coming to the client’s knowledge. There is discretion to extend the time limit if the court decides it was not reasonable to expect the client to comply with it.3See G Skipwith, ‘Consultancy Corner’, Adviser 148
If either of these options is being considered, the client should be referred to a solicitor. If neither of the above applies and the client maintains her/his innocence of the offence(s), s/he should be referred to a solicitor for a possible appeal or application for judicial review. There are short time limits.
 
1     s142 MCA 1980, as amended by CAA 1995 »
2     s14 MCA 1980 »
3     See G Skipwith, ‘Consultancy Corner’, Adviser 148 »
Registration of the financial penalty
The financial penalty is registered in the Register of Judgments, Orders and Fines. This means that if the client defaults, information about this is available to credit reference agencies and may affect her/his ability to obtain credit. The entry must be cancelled if:
    •the financial penalty is paid within a month of its being registered;
    •the client’s conviction is set aside or reversed;
    •the financial penalty has been remitted in full;
    •five years have elapsed since the date of the client’s conviction.