Leading Article: Above the law or below it?

WHEN fundamental changes to the legal system are denounced by the Lord Chief Justice and prompt lay magistrates to resign, something has gone wrong. Their concerns centre on the weight given to previous convictions, and central control over sentencing. But it is the new system of 'unit fines' - produced by assigning points to the gravity of an offence, points to the income of its perpetrator, and multiplying the two to get an answer in pounds - that bothers the wider public. Tales of pounds 1,200 fines imposed on litter-bugs have driven the tabloids into apoplexy and callers to radio phone-ins into frenzy. Is it the principle that is at fault, however, or the way it has been put into practice?

At first sight, the idea of fining the rich more than the poor for the same crime sounds like a mad piece of social engineering: redistributive, not retributive, justice. If someone unemployed knows he will receive a much lower penalty than would be given to someone in work for entering a neighbour's house and stealing a video, then he has a much greater incentive to break the law - which makes a mockery of the deterrence that punishment is supposed to provide. Moreover, the Home Office itself can produce no evidence that the rich were committing more crimes under the old system than the poor.

Yet there is a case for the idea. In a society in which some have a great deal more than others, justice should mete out not equal penalties to all, but equal pain: the retribution exacted from two people who have committed the same crime must hurt both equally. That is why it is right to impose a higher fine on the owner of a brand-new Bentley parked on a yellow line than on that of a 1975 Cortina. Such an approach fits well with the concern for the poor, the reluctance to cut benefits, and the support for free medicine that Britons express time and again to pollsters. It is no coincidence that similar systems have already been introduced in Scandinavia, Australia and Germany - all of which have high tax burdens and extensive welfare states.

Alas, in Britain the system has been implemented with three flaws. First, the fine for a given offence rises too steeply, and stops rising too early. It is not salesmen on pounds 15,000 a year who are rich enough to thumb their noses at parking regulations, but millionaires. The ceiling on disposable incomes used to calculate fines should therefore be raised from pounds 100 a week to pounds 1,000. Second, the information given by defendants is not properly checked. The Home Office says that it is up to the clerks of magistrates' courts to do so; in practice, hardened criminals get away with telling whoppers on the forms they have to fill in before being sentenced. Finally, the system gives too much weight to income, and not enough to the severity of the crime itself.

Minor administrative changes could resolve all these. Afterwards, a more serious problem will persist - not with the rich who are above the law, but with the poor who are below it. Those who own nothing have too often nothing to lose from crime. No simple amendments to the formulae of sentencing can change that.