REMISSION - TERM OF IMPRISONMENT FIXED - THE FURTHER HEARING - THE POWERS OF THE MAGISTRATES' COURT
In response to an application for the issue of a warrant of commitment by the charging authority, the justices carried out inquiries into the chargepayer's means and as to the reasons for his failure to pay outstanding community charge amounts, totalling £715.99, in respect of liability orders issued in March 1991, November 1991 and September 1992.
The court found that failure to pay was due to culpable neglect, and a term of imprisonment of 28 days was fixed. The issue of the warrant of commitment was postponed, however, on condition that payments of £10 per week were made until the full amount was paid.
The chargepayer failed to make payment as ordered, and he was required to attend the court to show cause why he should not be committed to prison. At this second hearing, the justices had regard to his personal and financial circumstances, including the fact that he was no longer in employment, and decided to remit the sum of £365.99. They then fixed a term of imprisonment af 25 days, postponed on condition that he paid the balance of £350 at the rate of £10 per fortnight.
The charging authority appealed against this decision on the basis that the justices had no power to make an order to remit once a term of imprisonment had been fixed.
The opinion expressed by the magistrates in the case stated, that they had "power to invoke an inherent common law power to remit where there had been a change in circumstances of the debtor", was rejected by Harrison J, who emphasised that the only power to remit is that contained in the statute and that that power cannot be exercised after a warrant of commitment has been issued or a term of imprisonment has been fixed.
The appeal by the charging authority was allowed, and the matter was remitted to the justices for reconsideration.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS - THE RIGHT TO LIBERTY AND SECURITY OF PERSON - THE RIGHT TO A FAIR HEARING - ENTITLEMENT TO REPRESENTATION IN PROCEEDINGS
In this case, eight chargepayers were the subject of separate proceedings in magistrates' courts in respect of unpaid amounts of community charge. It was established in each instance, to the satisfaction of the justices, that non-payment was due to either wilful refusal or culpable neglect, and commitment orders were made and each chargepayer was committed to prison. Legal aid was not available at that time, and the eight individuals were not legally represented before the various courts.
The chargepayers were all released from prison on bail after applying for judicial review before the High Court, and each applicant ultimately obtained an order quashing the magistrates' decision in his or her case. The eight chargepayers subsequently lodged applications with the European Commission on Human Rights, on various dates in 1994 and 1995, alleging breaches of article 5, paragraphs 1 and 5, and article 6, paragraphs 1 and 3 . of the European Convention on Human Rights. The Commission declared the applications admissible in 1997.
In its submissions to the European Court of Human Rights, which were considered in June 1999, the United Kingdom Government invited the Court to hold that there had been no violation of Article 5. It accepted, however, that there had been violations of Article 6 in respect of all eight applications in that the applicants were not legally represented before the magistrates and they had not had a right to legal aid in those proceedings, though it emphasised that this omission was remedied, by a change in the law, from 1 st June 1997.
The applicants submitted that, in each of their cases, the magistrates' courts had acted in excess of their jurisdiction and, therefore, unlawfully. It was contended that the decisions quashed by the High Court were not merely the result of errors of fact or law, and that the magistrates had failed to comply with necessary preconditions to support their jurisdiction to order warrants of commitment.
It was particularly argued in respect of Mr Perks that the magistrates had failed to enquire as to whether there had been a change of circumstances between the fixing of the term of imprisonment and the subsequent issue of the warrant at the further hearing. It was maintained that a proper inquiry at the resumed hearing, after the postponement of a warrant, was just as much a condition precedent to the magistrates' jurisdiction as was the initial requirement to carry out an adequate inquiry into the debtor's means and conduct.
In six other cases (one applicant having withdrawn on the particular issue], it was submitted that the jurisdictional error was that the magistrates had failed to consider and then reject alternatives to imprisonment. This, it was said, should have done before the discretion to commit was exercised, and the failure to do so was in excess of jurisdiction and not in accordance with a procedure prescribed by law.
The UK Government disputed the applicants' allegation that the magistrates' decisions ordering their imprisonment had been in excess of jurisdiction and were unlawful under domestic law. It was argued that so long as the two conditions as to the conduct of the means inquiry and the finding of wilful refusal or culpable neglect are satisfied, the issue of a warrant of commitment is not subject to any other express statutory condition precedent.
)It was pointed out for the Government that, in the case of Mr Perks, there was no requirement in the relevant regulations for the carrying out of a further inquiry at the second hearing. The magistrates' decision in that case, it was stressed, was quashed only because of their failure to take into account a consideration relevant to the exercise of their discretion, that being the chargepayer's health problems.
With regard to the other six cases, the Government maintained that considering alternatives to imprisonment was a question of the exercise of discretion and not a jurisdictional issue. It was contended that the basis of the High Court's judgments quashing the commitment orders in those cases was that the magistrates had a discretion vested in them but that its exercise was flawed.
The European Court found that it could not be said with any degree of certainty, in respect of the seven applications, that the judgments of the national courts quashing the magistrates' imprisonment orders were to the effect that the magistrates had acted in excess of jurisdiction within the meaning of English law. The court did not find it established that the imprisonment orders were invalid or that the detention which resulted from them was unlawful under national law.
The Court made the following findings:
by a majority of five to two, that there had been no violation of article 5, paragraph 1, of the Convention in respect of Mr Perks;
unanimously, that there had been no violation of article 5, paragraph 1, of the Convention in respect of any of the remaining six applicants;
unanimously, that there had been a violation of article 6, paragraphs 1 and 3[c1, of the Convention in respect of each of the eight applicants;
by a majority of five to two, that this latter finding of a violation in itself constituted sufficient just satisfaction in respect of seven of the eight applicants, that is other than Mr Perks;
unanimously, that the United Kingdom Government should pay to Mr Perks, for non-pecuniary damage, the sum of £5,500, and that the sum of £28,000 be paid to the applicants for costs and expenses;
unanimously, that the remainder of the applicants' claims for just satisfaction be dismissed.
TWO AMOUNTS INCLUDED IN ONE APPLICATION FOR A WARRANT OF COMMITMENT - TWO CONSECUTIVE TERMS OF IMPRISONMENT IMPOSED - SECOND TERM QUASHED
The case
The ratepayer was the occupier of a cafe and adjoining living accommodation which were separately assessed for rating. Two amounts of rates were owing in respect of each of these, and the rating authority made two commitment applications to the magistrates' court, each one relating to two debts, one arising from each hereditament.
The justices made two orders in response to the authority's applications, the first of which imposed two consecutive terms of three months' imprisonment on the ratepayer, one being in respect of the first amount due on each property. The second order imposed two terms of imprisonment of six weeks for the two second amounts due, these latter terms to run concurrently with the first two terms of three months and with each other.
The ratepayer sought an order of certiorari to quash the decision of the justices to commit him to prison for the second period of three months, on the following grounds:
that the justices' order was wrong in law, there being no power on one application for a warrant of commitment to impose more than one term of imprisonment;
that, if not wrong in law, the order amounted to an abuse and an excess of jurisdiction of the magistrates' court in that the commitment for three months bore no reasonable relation to the sum concerned, particularly considering the provisions relating to the reduction of the term of imprisonment in proportion to amounts paid; and
that the court had failed to make adequate inquiry as to whether the ratepayer's failure to pay was due either to his wilful refusa l or to his culpable neglect.
The ratepayer's contentions above were not fully pursued before the High Court in view of an indication given to counsel as to the court's sympathy with the first submission. Cooke J said that there seemed to be no answer to counsel's contention that the justices' order for three months' imprisonment followed by a consecutive period of a further three months was in direct conflict with the then relevant provision of section 102(5) of the General Rate Act 1967 [equivalent to the provisions set out above].
Cooke J concluded that the second period of three months' imprisonment should be quashed. It followed from that, he said, that the concurrent periods of six weeks' imprisonment imposed on the second application need not be considered, since the first three months' term of imprisonment had already been served and the concurrent terms of six weeks would, in consequence, also have been served.
An order of certiorari to quash the magistrates' order for the second period of three months' imprisonment was issued.
ALTERNATIVE METHODS OF RECOVERY - CULPABLE NEGLECT - THE CONDUCT OF THE AUTHORITY
The applicant was the subject of three liability orders for unpaid community charges for the years 1990-91, 1991-92 and 1992-93. The magistrates' court ultimately found non-payment to have been caused by the chargepayer's culpable neglect, and a committal order for a term of 30 days imprisonment, to reflect concurrent sentences of 30 days, 14 days and 30 days for the three years in question, was imposed in October 1992.
The case before the High Court concerned two applications for judicial review, and the chargepayer's representative there submitted that the charging authority ought to have accepted an offer, made in March 1993 and repeated in June 1993, to have payment of the arrears met by way of deductions from income support. It was advised that the chargepayer had lost his job by the time of the committal, and it was suggested that this would be an appropriate way of dealing with the debt since he was then unemployed and on income support.
Brooke J, in the High Court, asked whether the chargepayer had been putting money aside from his income support, from the time the offer was made in March 1993, by way of good faith, but it was advised that his solicitors were without instructions on that point. The matter then proceeded without evidence as to that issue.
Counsel for the charging authority pointed out that the power to make deductions from income support after the making of a commitment order had, by then, been statutorily removed, and he asserted that once a committal order had been made, the justices were bound by it. The chargepayer's representative, in response, referred to passages in the community charge regulations which provided for the reduction of a term of imprisonment where the debt is subsequently paid in part or in full.
Brooke J found that the submissions made for the charging authority were well founded, and he said that the justices had made the commitment order on the basis of the chargepayer's culpable neglect to pay and that there were no grounds on which the High Court should interfere with their decision, He determined that the chargepayer, who had been on bail from October 1992 to the time of the High Court hearing in July 1993, should serve the sentence imposed on him.
Leave to apply for judicial review of the authority's decision to take no action with regard to the offer of payment by way of deductions from income su pport was refused, Brooke J saying that it could not possibly be said that the authority's refusal to exercise its powers was such as would warrant interference by the High Court. He further recognised the point made for the authority that payment of the arrears (by then, in excess of £8001 by this means would take "a very very long time".
FOUR LIABILITY ORDERS FOR FOUR SEPARATE PERIODS - ONE MEANS INQUIRY - FOUR ORDERS OF COMMITMENT - THE FURTHER HEARING
The taxpayer was the subject of four liability orders relating to amounts of unpaid community charge and, then, council tax for the years from 1991-92 to 1994-95. Against the total amount of £1,469 payable on those orders, she paid only £40 for the second year and £10 for the third year.
The billing authority made application for the taxpayer's committal to prison in respect of the unpaid amounts and, in June 1995, the justices made four separate orders that she be committed to prison for a period of 45 days, these being postponed on terms as to payment of £20 per fortnight. This decision was ultimately the subject of the application for judicial review.
The billing authority, in due course, informed the magistrates' court that the taxpayer had failed to pay the amounts ordered, and the justices proceeded, at a further hearing in April 1996, to issue the warrants of commitment in her absence, three of these being for 41 days' imprisonment and one for 31 days' imprisonment. It subsequently transpired that the notice of that further hearing had been returned undelivered, thus the hearing had proceeded without the taxpayer having been given an opportunity to attend to show cause why the warrants should not be issued. The justices accepted, after the event, that that was reason enough for the warrants they had issued to be quashed.
As for the decision of June 1995 to make the orders, the High Court considered the fact that the taxpayer was present at the first hearing before the magistrates, and that she was represented by a duty solicitor. The affidavit of the chairman of the justices showed that it had been established in the course of the inquiry into the taxpayer's means and conduct that she was a single mother with two teenage children, that she earned £200 per week, and that she was also in receipt of family credit of £53 per week and child benefit of £25 per week.
The applicant's outgoings were listed as covering mortgage repayments, community charges, gas and electricity charges, council tax, food, water rates, bus fares, other incidental expenses, and hire purchase payments, and the affidavit indicated that the justices recognised that she had a balance of available income of the order of £132 per week. It was said that she had made an offer to the court to pay her community charge and council tax arrears at the rate of £2 per fortnight, and that she had confirmed that her means and circumstances had been similar to those stated throughout the whole of the period during which the arrears had accumulated.
The justices found that the applicant's failure to pay had resulted from her culpable neglect and, after considering and rejecting all the alternative methods of enforcement, decided that it would be right to make the postponed commitment orders.
The taxpayer, in her affidavit, said that she had other debts at the material times, though the justices had not been told about these. She said that, at the time of the High Court hearing, she had arrears of rent from previous accommodation, arrears of water rates, gas charges, community charges and council tax, arrears of money due to a finance company and mortgage arrears. She added that a suspended possession order had been made, in this last respect, in March 1995.
Before the High Court, the taxpayer's representative acknowledged that justices' could not be criticised if they failed to take into account debts of which they were not informed at the time of the means inquiry, but he argued that the justices had failed to make a separate means inquiry in relation to each individual period during which default in payment had led to the making of a liability order. He cited, in support of this contention, the judgment in R v Leeds Justices ex parte Kennett (1995] [see this section], in which a warrant of commitment was quashed because one order was made in respect of the amounts due under three separate liability orders.
McCullough J, however, distinguished the facts in the present case from those in the Kennett case. He pointed out that the applicant in the present case had never been unemployed, she had lived in the same house and had the same job throughout, and that she had told the magistrates that her financial position was much the same over the four years in question. These circumstances were quite different from those of the applicant in the Kennett case, who had had several periods of unemployment, though the dates on which he was unemployed were not ascertained, and who was said to have obtained £17,000 at some stage, though it was not determined when that money had been received.
McCullough J did not accept that in circumstances such as those existing in the present case it was necessary for the justices to address individual questions relating to individual years. Had they done so, he said, they would have been given, effectively, the same answers four times over. He found that the justices could not be faulted for failing to ask any more questions than had been asked, and he could see nothing to suggest that the means inquiry was less than was required or that the finding of culpable neglect in relation to each individual period could be impugned.
The decision of the magistrates of June 1995 to make the orders was upheld, and the later decision of April 1996 to issue the warrants of commitment was quashed in view of the fact that the notice of hearing had not been received by the taxpayer.
INQUIRY INTO MEANS AND CONDUCT - WILFUL REFUSAL - CULPABLE NEGLECT - INSUFFICIENCY OF INQUIRY
Warrants of commitment were issued by the magistrates' court in respect of a balance of rates unpaid by the previous occupier of a motor service station, the term of imprisonment being for a total of 75 days. Application for judicial review of these decisions of the justices was made, this being based upon an assertion by the ratepayer that the magistrates had failed to carry out the necessary inquiries into his means and conduct.
The magistrates said, in their affidavit, that the ratepayer had been given the opportunity of explaining the reasons for his failure to pay, and that he had been invited to explain his circumstances at the time. They had learned by this process that he was a married man, that he was employed and earning £18 per week, and that he considered that he was only able to pay the arrears at the rate of £5 per month.
Lord Parker CJ, in the High Court, said that the above appeared to comprise the whole of the inquiries that were made by the magistrates, since their affidavit then went on to say that they had concluded, after hearing the rating authority's evidence as to previous arrangements that had failed and as to the "very many previous approaches" that had been made, that there was evidence of wilful refusal or culpable neglect.
The justices gave, as reasons for arriving at their conclusion, that the ratepayer had
ignored demands, letters and summonses; failed to honour a previous undertaking to pay;
continually neglected his financial affairs; and failed to make any substantial offer to the court.
Lord Parker found that it was impossible to say that the evidence demonstrated wilful refusal, and that the most that could be said was that there was some evidence of culpable neglect in that the ratepayer had failed to explain how he had fallen down on his undertakings to pay. He went on to say, however, that was "thin evidence" upon which to send the ratepayer to prison for 75 days.
The High Court found that there had been an insufficiency of inquiry, in that
the original position as to why the ratepayer failed to pay the rates as they became due had not been deal with;
no inquiry was made as to the ability of the ratepayer to pay, whether in the past or in the future;
there was no inquiry as to his income or capital;
there was no inquiry as to how the undertakings to make regular payments had failed.
The warrants of commitment were quashed, and it was ordered that the ratepayer be brought before the justices again, on the same application, so that there could be a full and proper inquiry before a decision as to the issue of warrants of commitment was made.
RATEPAYER WITH CAPITAL ASSETS BUT LITTLE INCOME - WILFUL REFUSAL/CULPABLE NEGLECT - OFFER TO SELL PROPERTIES TO COUNCIL ALTERNATIVE REMEDIES - BANKRUPTCY
An order committing the ratepayer to prison was made by the magistrates' court in July 1987, and a term of 90 days imprisonment fixed, in respect of an outstanding liability of £4,340. The warrant of commitment was postponed on condition that payment was made at the rate of £40 per week.
Payment was not made as ordered, and the warrant was issued at the second hearing in October 1987. The ratepayer applied for judicial review of the orders of the magistrates after serving 14 days of the term of imprisonment.
The High Court firstly considered whether the terms "wilful refusal" and "culpable neglect" were mutually exclusive. This point fell to be dealt with because the justices had come to the conclusion that both had been present in this case, and it was determined that there could be situations where the justices could properly come to the view that both had occurred.
The ratepayer was the owner of five properties, one of which he lived in himself, and he asserted that the income from the others hardly met the outgoings, quite apart from the payment of the rates.
The magistrates' affidavit dealing with the facts of the first hearing indicated that the ratepayer's solicitor had offered payment at the rate of £40 per week, and that this formed the basis of their order. The affidavit of that solicitor, however, included a denial that any such offer had been made, and said that if an offer had been made it could only have been in terms of payment of £2 or £3 per week.
It was accepted by the High Court that there must have been some misunderstanding over this point, but Woolf LJ said that it could not have been within the solicitor's understanding of the capabilities of his client to make an offer of £40, given his financial circumstances.
The magistrates had also been made aware of correspondence from the ratepayer's solicitor to the rating authority, in July 1987, in which he had said that his client was prepared to sell three of the properties he owned to the council for £32,000, and that he would settle the rates out of that sum.
That matter had not been pursued by the time of the second hearing, and the magistrates then arrived at the conclusion that the ratepayer had disregarded their order as to payment. They consequently issued the postponed warrant of commitment.
Woolf LJ made a point of emphasising that the imprisonment of the ratepayer would effectively prevent the recovery of any of the rate, and he added that imprisonment would mean that "the pressure on the already overcrowded prisons is increased by his being sent to prison and the public has to bear the expense of his being sent prison".
The decisions of the justices were quashed on the grounds that they had not taken account of all material considerations, specifically that
the ratepayer had possibly substantial capital assets but very limited income;
the matter could have been resolved by way of the offer to sell properties to the council;
alternative civil proceedings could be resorted to;
the sale of property could have been enforced by way of bankruptcy proceedings.
THE REQUIREMENT TO DISTRAIN
The High Court quashed the decisions of a magistrates' court to fix a term of imprisonment of 14 days and postpone the issue of a warrant of commitment because of uncertainty over whether a valid attempt to distrain had been made.
During the first hearing of the application for the issue of the warrant, an officer of the charging authority gave evidence that distress had been attempted but" no or insufficient goods had been found". This statement went unchallenged.
The chargepayer ultimately failed to pay the amount of £10 per fortnight ordered by the magistrates, and the case was brought back to the court for the further hearing. Sworn evidence was again given by the authority as to the unsuccessful attempt to levy distress and, again, the chargepayer did not contest this evidence. The warrant of commitment was then issued.
The chargepayer made application for judicial review and stated in his affidavit that no sworn evidence had been given to the magistrates "with regard to the steps that had been taken to allegedly attempt to levy distress", He further pointed out that officials of the authority twice visited his home, the implication being that neither event amounted to an attempt to levy distress.
In a later affidavit, the following statement of the Leader of the Council, made during a public interview, was presented as evidence
"It does not give me any satisfaction to be sending people to jail for non-payment. However, we have hesitated to send the bailiffs in to seize goods. Consequently, we have missed that avenue simply because we really did not want to take it."
The High Court was not prepared to interfere with the decision of the magistrates taken in the light of the sworn evidence as to distress having been carried out. The order was nonetheless quashed, however, because the later evidence suggested that it was realistically possible that the authority may not have levied distress or, as Judge J put it, "that the steps which they believed amounted to levying by distress may not be properly so described in law".
ALTERNATIVE METHODS OF RECOVERY - THE PURPOSE OF THE POWER TO COMMIT
The case
In November 1992, a warrant of commitment was made in respect of the chargepayer and postponed on condition that £10 was paid each week against arrears of £354 for the year 1990-91, and a term of imprisonment of 30 days was fixed. Nothing was paid, and the magistrates issued the warrant of commitment at the further hearing in March 1993.
The decision of the magistrates' court was then subject to an application for judicial review, which was refused by the High Court in November 1994. Turner J, in refusing the application, granted leave to appeal to the Court of Appeal, and this appeal was heard in November 1995.
The circumstances leading up to the chargepayer's imprisonment were that, just prior to the further hearing in the magistrates' court, his solicitors ha d formally requested the authority to "withdraw the summons to attend the magistrates' court in favour of an attachment to his [their client's] income support'".
The authority did not withdraw its application, but the magistrates were advised, at the hearing, of the power by which income support deductions could be sought, and of the appropriate deduction (then £2.15 per week for a single person!.
The magistrates, having no reason to believe that the chargepayer's circumstances had changed from the time the order of £10 per week was made, and having been given no satisfactory explanation for his non-compliance with the requirement to pay those amounts, considered that the postponed order had not, as intended, acted as an encouragement to pay. They consequently implemented the order as to imprisonment.
The Court of Appeal found that the justices had demonstrated that they recognised the coercive emphasis of orders of commitment. Imprisonment, it was said, is the last resort, "but a last resort that is within the magistrates' discretion to impose where they judge that coercion has failed".
Henry LJ said "there must come a time when the court can, and should, resort to the punitive, because if the coercive regime is seen to have no teeth, then it will lose its coercive force".
With regard to the question of whether income support deductions might have been used as an alternative to commitment action, the Appeal Court accepted the position of Turner J, as expressed in the judgment in the High Court, that the length of time it would take to recover through income support deductions was a material factor which the justices were entitled to consider. It was stressed that the regulations do not require every other method of extracting payment to have been exhausted before commitment can properly take place.
The chargepayer's appeal against his imprisonment was dismissed, though the period of imprisonment was reduced by the Court of Appeal from 30 days to 14 days.
INQUIRIES INTO MEANS AND CONDUCT - WILFUL REFUSAL/CULPABLE NEGLECT - TWO LIABILITY ORDERS - SEPARATE CONSIDERATION
The chargepayer was committed to prison, in 1995, for consecutive periods of 9 days and 80 days in respect of community charge arrears for the years to 31st March 1992 and 31st March 1993 respectively. She served 12 days in custody, and was then released on bail upon making application for judicial review of the decisions of the magistrates' court.
The affidavits provided to the High Court by the clerk to the justices and by one of the three justices who made the decisions showed that the court had determined that the chargepayer's failure to pay was due to her culpable neglect, and they indicated that this conclusion was arrived at on the basis of evidence she gave at the hearing as to her income and expenditure,
Before the High Court, counsel for the chargepayer submitted that the justices had erred in law in failing to conduct properly the inquiries required under the community charge regulations. The chargepayer's affidavit suggested that she had been prepared to explain to the magistrates that her expenditure was, in a number of areas, greater than had actually been stated at the hearing but that the hearing had been curtailed and she was not able to do so,
In the High Court, Harrison J said that it should have been obvious to the justices that the applicant had more expenses than were recorded as being mentioned by her at the hearing, and he concluded that, for whatever reason, the inquiry into her means was not adequately completed. He drew attention to the fact that she was aged 22 and suffered learning difficulties, and that she had not been legally represented at the magistrates' court.
Harrison J said that, in his view, it was incumbent upon the justices to ask more about the chargepayer's expenditure, since, as it was recorded, it was "obviously lacking in respect of a number of fairly obvious items". He concluded that there had been an inadequate means inquiry and that the magistrates' decision should be quashed on that ground.
It was counsel for the applicant's second contention that there had been no inquiry by the magistrates' court as to whether non-payment was due to wilful refusal or culpable neglect in respect of each of the amounts and periods for which liability orders had been made. He referred to the judgment of the High Court in R v Leeds Justices ex parte Kennett (1995] [see this section] in which it was found that each liability order had to be considered separately and that there had to be a decision, in respect of each, as to whether wilful refusal or culpable neglect was shown.
Harrison J accepted counsel's assertion that there was no evidence that the magistrates had considered the chargepayer's expenditure during either of the periods in question, though he acknowledged that the justices had the purpose of extracting payment rather than of punishing in mind, and that they had considered, though rejected, the alternative of postponing the warrant of commitment.
The High Court granted an order of certiorari to quash the decision of the magistrates.
REFUSAL OF APPLICATION FOR ADJOURNMENT - THE MAGISTRATES' DISCRETION TO ADJOURN - THE AUTHORITY'S DECISION TO APPLY FOR THE WARRANT - THE STATUTORY PRE-CONDITIONS TO BE MET
This application concerned a decision of the magistrates' court, in December 1991, to fix a term of imprisonment of 14 days in respect of the chargepayer, for unpaid community charges, but to postpone the issue of the warrant of commitment so long as specified payments were made. However, just days before the hearing of the application for judicial review in relation to the commitment proceedings, in February 1992, the chargepayer made application for leave to move to quash the earlier decision of magistrates in issuing the liability order, a decision made in September 1991. That application was rejected by the High Court on the grounds that
the application had not been made promptly,
there was no explanation for the delay in making the application, and
to allow so late a challenge would be detrimental to good administration,
The application regarding the issue of the warrant of commitment was considered by the High Court in February 1992, and there it was established that the charging authority had instructed a firm of bailiffs with a view to levying distress on the chargepayer. The bailiff had attended the property in question and had ultimately made a return to the authority to the effect that there were no or insufficient goods on which to distrain, though it was accepted that the bailiff had not actually entered the premises. The charging authority proceeded to make application for the warrant of commitment on the basis of the bailiff's return, and the magistrates then made a finding that non-payment was due to the chargepayer's wilful refusal and fixed a term of imprisonment but postponed the issue of the warrant.
In the High Court, counsel for the chargepayer asserted that the magistrates ought to have granted an adjournment when requested, and that the pre-conditions for the making of a warrant of commitment had not been satisfied by the charging authority.
As to the first of these points, Mann LJ said that the position was that the chargepayer had requested an adjournment, during the hearing of the committal application, so that he might obtain legal representation, and had explained to the justices that he wished to pursue a legal argument about the method of distress employed by the authority. The magistrates, after consideration, had concluded that the chargepayer had sufficient opportunity to seek legal advice, and they refused his request.
Mann LJ emphasised that the justices have a statutory discretion to adjourn at any time, and he said that the High Court would be prepared to strike down the exercise of that discretion if there had been a perverse use of it. He considered, however, that the decision of the magistrates to not grant an adjournment in the present case was taken for a sensible reason, and he found the assertion that they were at fault in this instance to be without substance.
The second issue before the High Court was the submission made on behalf of the applicant that a warrant of commitment could only be validly made where certain pre-conditions [those set down, now, in regulation 4711] for council tax and regulation 16(1] for non-domestic rates - see above] are met, that the justices must be satisfied on admissible evidence that they have been met, and that, here, there was no evidence that they had been met.
Mann LJ took the view that the charging authority's decision to apply did not have to be justified before the magistrates, though he pointed out that such a decision could be open to separate chaLLenge in proceedings for judicial review. He considered, however, that there was no merit in the contention that the statutory preconditions had not been met, since the justices had been aware that
the authority had sought to levy distress, the debtor was an individual, and
it had appeared to the authority that there was an insufficiency of goods on which to distrain.
Mann LJ, in dismissing the application, rejected the view that an insufficiency of distress could only be found during the process of actually distraining.
INQUIRIES INTO MEANS AND CONDUCT - CULPABLE NEGLECT - TWO LIABILITY ORDERS - SEPARATE CONSIDERATION
The case
Application for judicial review of the findings of the magistrates' court was made by the chargepayer in respect of his commitment to prison for failing to pay community charge. The first of those findings was that non-payment of community charge for the years 1990-91 and 1991-92 was due to his culpable neglect and that a postponed warrant of commitment for a term of imprisonment of 90 days should, in consequence, be made. The second finding was that the warrant should be issued, and that the chargepayer should be imprisoned for a period of 83 days (being the adjusted term after payment of part of the original debt! on account of his failure to pay the weekly amounts ordered by the court.
The decisions made by the magistrates were challenged on the following grounds
that no proper inquiry as to the chargepayer's means, as they then were, was carried out at the first commitment hearing in 1994;
that no proper inquiry had been made at that hearing as to the charg epayer's circumstances leading to the making of the liability orders;
that the justices erred in fixing the term of imprisonment that they did when the case was not the most serious of its kind; and
that the justices erred in not ensuring that the applicant received proper notice of the further hearing, in that the notice was not served by recorded delivery.
In relation to the first of these four grounds, the applicant's affidavit indicated that the magistrates enquired about his circumstances as they were at the time of the hearing [in 19941 but that they made no reference to his situation at the time that the liabilities arose [in 1990-91 and 1991-921. The notes of the clerk to the justices had apparently been lost, but it was the evidence of the charging authority that the magistrates had considered the financial circumstances in 1994 and had also sought an explanation as to why payment had not been made when the chargepayer had been in full-time employment until February 1991 and in receipt of income support and sickness benefit at various times thereafter. It was observed that 75% of the amount owing related to a period when the applicant was in fulltime employment.
Dyson J found that, despite counsel for the applicant's assertion that no proper inquiry had taken place, there was no evidence that the inquiry that was carried out was incomplete, and that there was a proper inquiry into the chargepayer's means as they were at the date of the hearing. He added that it had been open to counsel to give evidence of the aspects of the chargepayer's means that had not been enquired into, but he had not done so.
Insofar as the second of the applicant's grounds was concerned, it was found that the affidavit of the charging authority did not show clearly what inquiries the justices actually had made. There was no evidence as to the level of the applicant's income while he was employed or after that time, and nothing was said at all about his expenditure.
The authority's evidence did not disclose what explanation the applicant gave as to his non-payment, or whether any explanation that had been given was believed by the court, or if the justices considered any explanation given to be insufficient. Moreover it was not clear that the justices gave separate consideration to the two years concerned [see R v Leeds Justices ex parte Kennett (19951 - this section].
On this second ground of the application, Dyson J said that he could not be satisfied that sufficient enquiries had been carried out before the conclusion as to culpable neglect was arrived at, and he held that, in those circumstances, the application must succeed.
The third point made by counsel for the applicant, that the term of imprisonment of 90 days was excessive, was not accepted by Dyson J, who took the view that the justices were at liberty to impose a maximum term of 90 days in respect of each of the two liability orders concerned, since the hearing was, in reality, concerned with two non-payments in relation to two distinct liability orders. It was concluded that there was no reason to fault the method of service of the notice of hearing by the authority, nor was there any reason to suppose that the applicant had not received it, service having undeniably been effected at the address given by the applicant as his abode, being a property of which he was the sole tenant.
The decisions of the magistrates' court were quashed on the basis of the second ground only and, in view of the fact that the applicant had served ten days in prison, the matter was not remitted to the justices for further consideration.
EXTENDED PAYMENT ORDERS
A term of three months imprisonment was fixed and the warrant of commitment postponed on condition that the ratepayer paid £1 per week against arrears of £432.98. The warrant was quashed by the High Court because it would take over eight years for the debt to be discharged and for the risk of committal removed.
The means inquiry apparently took the form of the consideration of a report by a probation officer, which included a suggestion that the magistrates might feel it appropriate to remit all or part of the amount in question.
A further report by the probation service incorporated a recommendation that, if there was a need for something to be paid, £1 per week would be the most that the ratepayer could afford.
The affidavit of the magistrates indicated that, in making an order that £1 should indeed be paid each week, it was not their" expectation or desire that the order should extend for 8.5 years".
Nolan LJ said that "it would be a very rare case indeed in which a defaulting ratepayer could properly be ordered, on pain of a sentence of imprisonment, to make payments in discharge of the arrears for a period anywhere near approaching 8 years", and added that "with great respect to the justices, unless they were confident that she could pay it off more quickly they should not have made the order in those terms."
THE CHARGING AUTHORITY'S CONDUCT IN SEEKING THE ISSUE OF POSTPONED WARRANTS OF COMMITMENT WHEN THERE WAS UNCERTAINTY AS TO THE AMOUNTS OWING
The applicants in this case were aged 74 and 80, and both were in a poor state of health. Upon the hearing of applications for the issue of warrants of commitment, the magistrates' court remitted part of the amounts due.
The justices then fixed a term of imprisonment of 28 days in each case, and postponed the issue of the warrants of commitment on condition that each of the charge payers paid £2 per week against the balances for the years 1990-91 and 1991-92.
After the orders of the court were made, the chargepayers arranged to pay £8 per week, and this, and sometimes more, was paid. These payments were, however, applied by the authority to amounts outstanding for the year subsequent to those which had been the subject of the commitment application. Payment eventually stopped, with the chargepayers asserting that the magistrates' order had been complied with and the council insisting that only the amount payable for 1992-93 had been cleared.
Despite subsequent correspondence, there was no agreement as to how much of the arrears remained to be paid, or which years the balances related to, and the council proceeded to make application for the issue of the warrants of commitment. Letters from the council advising that this course of action was imminent had been returned undelivered and uncollected, and the chargepayers had refused to open the door to allow personal service.
The chargepayers did not attend the further hearing but, since the council made the court aware of a prominent local newspaper article they [the chargepayers) had originated on the subject of their dissatisfaction, the magistrates took the view that they had been adequately notified of the proceedings, and it was decided that the applications would be heard in their absence.
The magistrates enquired of the council's representative whether there was any possible alternative to commitment, and it was submitted to them that there was not. The warrants of commitment were subsequently issued.
The application for judicial review claimed that the council had acted unlawfully in crediting the payments made against the amount due for the year after the two years which were the subject of the application for the warrants of commitment, and that it acted unlawfully and/or unreasonably in applying for the commitment to prison of the chargepayers. It also maintained that the magistrates had failed to make adequate inquiries before committing the applicants to prison.
Auld J made a declaration in the High Court that the council's conduct in persisting with its application for commitment was unlawful and unreasonable having regard to the uncertainty as to whether the chargepayers were in default of the magistrates' orders and to their ages and ill health.
He also found that the magistrates, in acceding to the submission of the council's representative as to the options to commitment, acted unlawfully in denying themselves the discretion which they had.
The decision to issue the warrants of commitment was quashed, but a claim for damages against the council in negligence was rejected since, as Auld J put it, "much of the applicants' problems in this matter resulted from their own uncooperative and aggressive behaviour".
POSTPONEMENT OF THE ISSUE OF A WARRANT OF COMMITMENT - THE FURTHER HEARING - THE DUTY TO PROVE NON-COMPLIANCE - CONSIDERATION OF CHANGES OF CIRCUMSTANCES - THE PURPOSE OF THE POWER TO COMMIT
A term of imprisonment of 30 days was fixed and the warrant of commitment postponed, and an order was made that the chargepayer pay £10 per fortnight.
Upon the court being advised, later, by the charging authority that nothing had been paid, the justices' clerk sent a notice to the debtor stating that if payment was not made, and if no application, with supporting grounds, was made to the court, the matter would be considered by a justice who would either "refer it to the court for further consideration or dismiss the application and issue the warrant" .
The warrant was issued, at a second hearing, in the absence of the chargepayer. The High Court quashed the warrant of commitment because
the chargepayer had not been given notice of the date and time of the further hearing;
the court had a discretion to issue no warrant and was bound to allow the debtor to address it prior to the exercise of its discretion as to whether or not the warrant should be issued;
although the lady in question did not clearly dispute her indebtedness, or allege clearly any change of circumstances, she was a lady of 67 years and suffering from a number of handicaps which would inhibit her clarity of expression.
It was said, further, that the debtor "is entitled to put the authority to proof of non payment" and that there must be "an inherent power in the court to vary its own order in a case where, since the [original] decision was made, the debtor has become incapable of earning, for instance by reason of an accident".
The word 'sole' was not accepted by Stuart Smith LJ in R v Felixstowe, Ipswich and Woodbridge Magistrates' Court and Ipswich Borough Council ex parte Herridge (1993) [see this section], who felt it necessary to stress that, in his view, the encouragement of payment is the "predominant" purpose, not the "sole" purpose, of the power to commit.
POSTPONEMENT OF THE ISSUE OF A WARRANT OF COMMITMENT - THE FURTHER HEARING - CONSIDERATION OF CHANGES IN CIRCUMSTANCES ALTERNATIVE ENFORCEMENT PROCEDURES - THE PURPOSE OF THE POWER TO COMMIT
A term of imprisonment was fixed and the warrant of commitment postponed on condition that the chargepayer pay £10 per week.
The debtor paid £10 for each of three weeks, then he reduced his payments to £2 per week, pointing out, at the time, that he had voluntarily ceased to work and had commenced to receive income support. The warrant of commitment was subsequently issued by the magistrates' court in full knowledge of the debtor's change of circumstances
The decision of the justices was upheld by the High Court, who found that the magistrates had not erred in arriving at their decision since
it was not necessary for the magistrates in every case to inquire whether an alternative enforcement procedure was available;
the magistrates had taken the view that the applicant could pay £10 per week, and an application by the council for income support deductions, which would provide some £2 per week, was not an alternative;
where a warrant of commitment had been postponed on conditions as to periodic payments, such an order would be "totally emasculated" if the court could not commit where there has been a breach of those conditions;
the relevant time for determining whether the failure to pay was due to wilful refusal or culpable neglect was the period between the date of issue of the demand notice and the date of the liability order; [Note, as for rates but not as for council tax];
it was not necessary for the second court (which considered the failure to pay £1 0 per week) to review the finding of the first court (which postponed the issue of the warrant and ordered that payment);
the second court must be satisfied that the debtor had the ability to pay the amount ordered and had failed to do so;
if the debtor was, in fact, unable to pay through change of circumstances, it would not be right to issue the warrant of commitment;
the justices had to bear in mind that commitment would result in the eradication of the debt and the predominant purpose of obtaining payment would be frustrated;
although the predominant purpose of the legislation is to coerce the defaulting ratepayer into making payment, that is not its sole purpose;
the court must have the ultimate sanction of actual commitment for nonpayment if the debtor has had the ability to pay;
it was not for the High Court to substitute its view as to whether £10 per week was appropriate in the circumstances at the time.
REQUEST FOR ADJOURNMENT OF HEARING OF APPLICATION FOR THE ISSUE OF A POSTPONED WARRANT OF COMMITMENT
The magistrates' court issued a previously postponed warrant of commitment at the further hearing, putting into effect a term of imprisonment of 14 days. This was as a consequence of the applicant's failure to make periodic payments, which was a condition of the postponement of the warrant at the first hearing.
The chargepayer did not appear at the further hearing, but submitted a letter stating that he was unable to attend because of illness and that he had been told by his doctor that he should be exempt from the charge because he was on sickness benefit. This was supported by a letter from the doctor, who said th at his patient was suffering from agoraphobia, had seen a psychologist in the past, and "needs to be exempt". The applicant's letter did not specifically request an adjournment.
The Chairman of the Bench provided an affidavit for the High Court, and this indicated that the magistrates gave consideration to the suggestion that the chargepayer should not pay because of exemption or because of his financial position, but concluded that those issues should have been dealt with at an earlier stage, at least at the first hearing.
The affidavit went on to show that the magistrates had noted that the Letter from the doctor excused the debtor from attending work but did not excuse him from attending the court hearing, and that there had been no mention of a medical condition at the time the chargepayer attended at the first hearing.
The High Court concluded that the magistrates ought to have taken the chargepayer's letter to the court as being a request for an adjournment, and it quashed the decision of the magistrates to issue the warrant of commitment since, it was said, there was otherwise a risk of unfairness.
An application for costs against the local authority was made by the applicant's representative, but this was rejected on the grounds that the costs claimed did not arise as a result of anything for which the authority had been held by the court to be in any way blameworthy.
THE PRINCIPLE OF PROPORTIONALITY - THE DISTINCTION BETWEEN WILFUL REFUSAL AND CULPABLE NEGLECT
A decision to fix a term of imprisonment of 90 days and to postpone the issue of the warrant of commitment was quashed by Laws J because
the means inquiry was "not merely short but perfunctory", and it led to an imposition of the maximum which the magistrates had power to impose;
the more serious the case, whether in terms of the amount outstanding or the degree of culpability or blame to be attached to the ratepayer for his non-payment, the closer will any period imposed approach the maximum;
the criminal law principle of "proportionality" was as important for the court to consider in a case such as this as it was in a case of "punishment" properly so called;
the finding that the applicant had failed to pay by reason of culpable neglect was implicitly a finding that there had been no wilful refusal;
wilful refusal represents a more serious state of affairs than neglect, even culpable neglect; and
it was important that the magistrates should have the principle of proportionality in mind while adhering to the law that the purpose of exercising the powers was not to exact retributive punishment but to encourage payment.
NOTICE OF FURTHER HEARING - CLARITY OF WORDING - CONSEQUENCES OF NON-PAYMENT - SERVICE BY ORDINARY POST - NO PROOF OF SERVICE - NO EVIDENCE THAT NOTICE SEEN
A warrant of commitment for arrears of community charge was made in respect of the chargepayer in April 1992, but the order was postponed by the justices on condition that he made periodic payments against the amount outstanding.
Payments were not made as required, and a letter was then sent to the chargepayer, in August 1992, to notify him of the further hearing. This was sent by ordinary post, and it contained the following statement
"Regular payments have not been made and I therefore hereby give you notice to appear before Hyndburn Magistrates' Court on 25th August 1992 at 2pm to show good cause why the order committing you to prison should not be implemented. If the order is implemented, further costs of £40 will be payable."
The chargepayer did not appear at the hearing, and the commitment warrant was duly issued by the magistrates' court. He was subsequently given leave to seek an order of certiorari to quash the warrant, after serving 12 days of the term of imprisonment imposed.
Before the High Court, it was firstly submitted that the notice of the further hearing was not in sufficiently clear terms to let the applicant know that there was a risk of his being sent to prison. Counsel argued that it might merely have been thought that there was nothing more at stake than the possibility of incurring a further £40 costs.
Jowitt J rejected that contention, and took the view that, whatever the notice said, the justices must have made it clear at the original hearing what the consequences of non-payment would be. He said that it might have been expressed in more simple terms that the magistrates could send the chargepayer to prison, but he did not think that there could have been any real misunderstanding over the matter.
Counsel's second point was that there was no proper evidence of service of the letter upon the chargepayer. The affidavit of a council officer showed that it had been sent to the last known address of the applicant, as notified to the court when the postponed order was made, but it transpired that he had subsequently left that address, and it was asserted that the document had not been received.
Jowitt J found that the details in the applicant's affidavit suggested that the letter was never seen, and he took the view that it was impossible to say that it had been shown that the applicant knew of the hearing date. It was found, in consequence, that there was no sufficient proof of service.
It was concluded that the applicant was entitled to succeed, and the order of certiorari was made to quash the warrant of commitment.
ONE TERM OF IMPRISONMENT ORDERED IN RESPECT OF AMOUNTS DUE UNDER THREE LIABILITY ORDERS
A term of imprisonment of 42 days was fixed, and the warrant of commitment was postponed on condition that the total amount owing (£9661 in respect of three liability orders for three consecutive years was paid by a specified date. The chargepayer had said at the hearing that he was due to receive commission of £8,000, and the magistrates had some reason for accepting that payment would be made from that sum.
In consequence of the chargepayer's failure to pay as ordered, the warrant of commitment was issued, in his absence, at the further hearing.
It was established in the High Court that the magistrates had determined that there was evidence of culpable neglect in that the debtor had had money (said to be in excess of £17,0001 from re-mortgaging his home, but that he first took a holiday, and he then settled other outstanding bills but not his arrears of community charge.
There had been no separate inquiry by the magistrates for each of the three years' liabilities, neither had they established during the first hearing precisely when the sum of more than £17,000 had become available.
Also, certain assertions were made that the debtor had been unemployed, and possibly entitled to benefit, during periods in each year, but the magistrates did not pursue this issue and did not permit an adjournment for the matter to be investigated
The High Court quashed the decision of the magistrates and the warrant of commitment, and made a finding that each liability order had to be considered separately and that there had to be a decision, in respect of each, as to whether wilful refusal or culpable neglect was shown.
R V LIVERPOOL JUSTICES EX PARTE LANCKRIET (1976)
INQUIRY AS TO MEANS AND CONDUCT - WILFUL REFUSAL/CULPABLE NEGLECT
The case
The ratepayer in this case was the subject of distress warrants for unpaid rates for the years 1975-76 and 1976-97. Bailiffs had been unable to recover the outstanding amount, and the warrants were returned to the rating authority on the basis that the debtor had insufficient goods upon which to distrain.
The authority made application for warrants of commitment in respect of the two years' liability and, at the hearing, the chairman of the bench asked the ratepayer if she was able to pay. She responded that she could not, and the court, without further inquiry, issued the warrants and ordered that she be sent to prison for a term of 90 days.
The ratepayer sought an order of certiorari in respect of the decision of the magistrates' court, with a view to having the warrants of commitment quashed. In the High Court, Lord Widgery referred to the provisions of sections 102 and 103 of the General Rate Act 1967 [the provisions equivalent to those shown above in relation to council tax and non-domestic rates], and said
"What is obviously contemplated there, because the words are too clear for argument, is that before the final sanction of committal to prison takes place, the magistrates' court must be satisfied that there has been wilful refusal or culpable neglect justifying the making of such an order".
)As to the ratepayer simply being asked by the court whether she could pay, Lord Widgery said that something a great deal more elaborate than that was clearly contemplated by the legislation in the way of "the sort of elementary means test which the situation might call for". He said that it was clear that no proper inquiry took place in this case.
The warrants of commitment were quashed by the High Court, and the matter was remitted to the justices with an order that the ratepayer be brought before the magistrates' court on the same application, for a full and proper inquiry to determine if warrants of commitment should be issued.
THE INQUIRIES INTO MEANS AND CONDUCT - CULPABLE NEGLECT
The decision of a magistrates' court to issue a warrant of commitment and fix a term of imprisonment of 90 days was quashed by the High Court because the inquiry which the magistrates carried out was directed to finding an answer to the wrong question, namely the applicant's current means rather than whether the failure to pay had been due either to his wilful refusal or his culpable neglect.
In quashing the warrant of commitment (in September 19861. the High Court found that the inquiry carried out by the magistrates had disclosed that there was no question of the ratepayer having willfully refused to pay the rates. The justices had come to the conclusion that there had been culpable neglect only on the basis that the ratepayer had declined to take his accountant's advice to close down his business and become bankrupt.
Webster J said that the failure to take that advice had nothing whatsoever to do with his failure to pay the rates - there was no causal connection between rejecting the advice of the accountant and the non-payment of the rates.
Since the absence of wilful refusal had been established, and the decision as to culpable neglect was flawed, it followed that there was no power to imprison.
FINDING OF CULPABLE NEGLECT - ISSUE OF WARRANT OF COMMITMENT MISUNDERSTANDING BY MAGISTRATES AS TO TIME WHEN LOAN TAKEN OUT REASON FOR FAILING TO ATTEND FURTHER HEARING
The applicant in this case was the subject of a liability order for outstanding community charges and costs totalling £267.98, this being issued by the magistrates' court in January 1991. Over six years later, in February 1997, she appeared before the justices upon an application for her commitment to prison in respect of a total sum, including costs and charges, of £323.78. The court then made a finding that non-payment was due to culpable neglect, and a term of imprisonment of 14 days was imposed but postponed upon an ordered payment of £2.50 per week.
The necessary payments of £2.50 per week were not maintained, and the chargepayer was consequently required to again appear before the magistrates in September 1997. She did not attend on that occasion, however, and though a letter explaining the financial circumstances of the chargepayer and her husband was considered by the court, she was ordered to be imprisoned for a reduced term of 8 days. The chargepayer served two days in prison, but was then given bail by order of the High Court.
Application for judicial review of the magistrates' decisions was made on the grounds that the justices had failed to conduct a proper inquiry and were wrong to find that there had been culpable neglect. It was argued, moreover, that the justices were wrong in law to fix a term of imprisonment postponed, effectively, for a period of over two and a half years, since this would result in the chargepayer being subject to the threat of imprisonment over an extended period of time.
Tucker J, in the High Court, considered an affidavit from the chairman of the justices which included a reference to the chargepayer and her husband having purchased a motor car worth £5,000, by means of a loan, at some point in the period April 1990 to January 1991 "rather than make payments towards the community charge", This further stated that the court had concluded that this factor was evidence of culpable neglect.
The chargepayer, however, in her own statement to the High Court, denied that she had said that the car was purchased in 1990-91, and she asserted that the loan was taken out in 1987. She went on to stress that this occurred some three years before the community charge liability arose.
Tucker J said that it was clear that the matter of the loan had an impact on the minds of the justices and it seemed that it was that which had persuaded them to make the order that they did, He felt that the magistrates had been mistaken as to the true position and that they should not have made the finding as to culpable neglect since, as he put it, "once the question of the purchase of the car was removed from the picture, it would have been quite wrong for such a finding to have been made".
As for the chargepayer's failure to attend the further hearing before the magistrates' court, Tucker J took account of the reasons set out in her statement. This contained the explanation that a close friend had died during the night before the hearing and that she had simply overlooked the fact that she was to be in court the following day. The magistrates were apparently informed of this situation in the afternoon of that day, by which time they had already made their decision to issue the warrant of commitment.
Tucker J found that it was not the case that the chargepayer had deliberately chosen not to attend the hearing, as the magistrates had thought, and that they should not, in any event, have ordered a committal in her absence. Had she been in attendance, or had the magistrates issued a warrant to secure her attendance, he said, the necessary explanation would have been given and it would have been apparent that she had not deliberately chosen not to attend.
The finding of the magistrates court as to culpable neglect was quashed, as was the committal order
POSTPONED WARRANT OF COMMITMENT - THE FURTHER HEARING - THE STANDARD OF PROOF - WARRANT ISSUED FOR WHOLE PERIOD OF IMPRISONMENT - FAILURE TO GIVE WEIGHT TO CHANGE OF CIRCUMSTANCES
The applicant appeared before the magistrates' court in July 1993 on an application for a warrant of commitment for arrears of community charges due for the years 1990-91 and 1991-92. The justices, on that occasion, satisfied themselves that non-payment was due to culpable neglect, and they fixed a term of 56 days imprisonment but postponed the warrant on condition that the arrears be paid at the rate of £6 per week. At a further hearing in December 1993, the justices varied the condition as to payment from £6 to £4 per week.
The chargepayer did not maintain the ordered payments of £4 per week, and he appeared again before the magistrates in November 1994. The justices heard his evidence as to various changes in his circumstances since the previous hearing, and they then issued the warrant of commitment and put the 56 day term of imprisonment into immediate effect.
This last decision of the magistrates was the subject of an application for judicial review and, before the High Court, the changes in the applicant's circumstances between the hearings in December 1993 and November 1994 were set down, by affidavit. These were that
his home was repossessed, and he and his wife were rehoused as homeless in October 1994;
his car, with which he carried out his business as a taxi driver, was repossessed;
he became unemployed, and he commenced to receive income support in January 1994.
The chargepayer said that he had told the magistrates about his changed circumstances, and that he believed that they were also aware of the ill health of his wife. He had pointed out that he had been unable to arrange his budget so as to pay the £4 per week ordered and that he was willing to have the arrears dealt with by way of deduction from income support, though he recalled the clerk to the justices saying that it was too late for that to be done.
Laws J, in the High Court, said that there seemed to be no dispute, in the magistrates' court in November 1994, that the applicant's circumstances had greatly changed since the previous hearing in December 1993, at which latter time he was understood to be in work and had not, then, been evicted. He went on to say that the primary argument was whether or not the decision of the magistrates to put the warrant of commitment into effect in November 1994 was, in the Light of this changed situation, perverse and one which no reasonable bench of magistrates could arrive at.
The role of the magistrates' court at a further hearing was clarified as being only to consider the circumstances that had occurred since the warrant of commitment was postponed and to decide whether to issue it, to postpone it further or to make some other order. Laws J said that the justices, at this stage, had no power to revisit the decision made by the court when wilful refusal or culpable neglect had been found.
Laws J concurred with the view of Smedley J in R v South Tyneside Justices ex parte Martin (1995] [see this section] on the question of the standard of proof to be adopted in committal cases, and said that he was satisfied that if it was the conclusion of the magistrates that the chargepayer be imprisoned at once, they must only so conclude if they have applied "either the criminal standard of proof or a high civil standard that is perhaps, in reality, identical to the criminal standard in relation to any evidence before them and any factual issue before them". A person is not, he said, to be imprisoned by any court on "a mere probability".
The representative of the chargepayer submitted to the High Court that it must have been wrong, in the circumstances, for the bench to issue the warrant at all. Laws J said that he was not sure that he was persuaded of that, but he was certainly persuaded that no reasonable bench of magistrates, faced with the unchallenged evidence of the applicant at the November 1994 hearing, could properly have issued the warrant for the whole period of 56 days. For them to have done so, he said, led to a conclusion that they had simply failed to give any weight to the evidence of the chargepayer's changed circumstances.
Laws J accepted the assertion of the magistrates that they had had regard to all the relevant material, but he said that they had imposed a sanction which was no less severe than might have applied if the applicant had remained in work throughout the period since the hearing of December 1993 and had simply refused to pay.
The magistrates were found not to have exercised their discretion properly or lawfully, and an order of certiorari was made to quash the issue of the warrant of commitment.
COMMITMENT WITHOUT POSTPONEMENT - ALTERNATIVE REMEDIES - THE PURPOSE OF THE POWER OF COMMITMENT
The charge payer in this case was the subject of an application for the issue of a warrant of commitment in respect of unpaid community charges. The magistrates found that he was in default, and they accordingly committed him to prison for a term of 50 days.
Leave was given for the chargepayer to apply for judicial review of the magistrates' decision, and Schiemann J, in the High Court, acknowledged that the magistrates had power to find as they did and to impose the term of imprisonment that they did. He pointed out, however, that they also had power to adjourn or to consider income support deductions as an alternative means of securing payment.
Counsel for the chargepayer contended that, in committing him to prison at the first hearing, the justices had failed to have proper regard to the purpose of the power to commit, namely that it is to be used as a weapon to extract payment rather than to punish. It was submitted that there was no evidence before the justices that the threat of a postponed order would not have induced the applicant to pay.
It was also argued that where there were alternative means of collecting the sums due, either by postponing the issue of the warrant or by adjourning to enable the arrears to be deducted from income support payments, the justices were obliged to adopt such a course.
It was submitted that the justices' approach was flawed, in that they misdirect-ed themselves in finding that, having determined that the applicant had willfully refused to pay, there was no reasonable alternative but to commit the applicant to prison.
Schiemann J considered that the legal position supported the propositions made on behalf of the chargepayer. In quashing the decision of the magistrates, he said
"However wilful the applicant's behaviour might have been, if on the day of the hearing he indicates that he is, however foolishly, without resources, then the right course for the justices is to consider whether or no to make these orders. Indeed, in the absence of compelling reasons (none of which appears in the affidavit sworn by the chairman of the justices on the present occasion] one of those alternatives must be pursued rather than imprisonment".
By an amendment to the 1982 Act by the Criminal Justice Act of 1991, it is the duty of the court to state, in open court, why it believes that no other method of dealing with the juvenile would be appropriate.
No evidence was submitted by the magistrates in this case to show that they felt, on the facts presented to them, that no method other than imprisonment was appropriate, neither was there any indication as to any reasons they might have had to support such a view.
It was said that it was quite clear that other courses of action were open to the magistrates; they might have accepted an offer, made by the chargepayer, to pay at the rate of £5 per week and postponed the making of an order to see whether it was paid; they might also have adjourned the application to allow deductions from income support to be made.
Laws J said that "given the availability of these other courses of action and the fact that there is clear authority to show that the powers of enforcement - are primarily intended to coerce payment rather than inflict punishment", it was quite impossible for the court to conclude other than that the magistrates did not have proper regard to their statutory responsibilities under the (community charge) regulations and Part 1 of the Criminal Justice Act 1982.
PERSONS AGED UNDER 21
The case
A decision to commit a chargepayer to a term of imprisonment of 28 days was quashed because magistrates did not have proper regard to the requirements of Part 1 of the Criminal Justice Act 1982.
The magistrates were not represented in the High Court, and they submitted no documents for consideration.
The power to imprison a person who is under the age of 21 is only to be exercised if the court is of the opinion that no other method of dealing with him is appropriate.
ALTERNATIVE REMEDIES - THE PURPOSE OFTHE POWER OF COMMITMENT
The case
The chargepayer was the subject of two separate applications for her commitment to prison in respect of arrears of community charge for the years 1990-91 and 1991-92. The magistrates found that non-payment was due to culpable neglect, and warrants of commitment were made but postponed on conditions as to payment by weekly amounts.
)In view of the chargepayer's continued failure to pay, these matters were brought before the magistrates' court at a further hearing. The warrants of commitment were then issued for terms of imprisonment of 14 days and 17 days, to run concurrently.
Leave was given for the chargepayer to apply for judicial review of the magistrates' decisions, and she was granted bail.
Before the High Court, counsel for the chargepayer sought an order of certiorari to quash the decisions of the justices on the grounds, as he asserted, that steps ought to have been taken to arrange for deductions to be made from his client's income support. It was claimed that this procedure had been requested of the charging authority on a number of occasions.
In the affidavit provided by the justices, it was said that the chargepayer had failed to appear before the court on four occasions, and that the view had ultimately been taken that she "had made no effort to make any payments during the whole of the two-year period but expected others to make arrangements to discharge her liabilities", The justices considered that the payments that had been ordered (firstly £2, then £1, per week) were within her means.
The justices further stated that they were satisfied that a request for income support deductions to be made was "not made until after the court proceedings had commenced, rendering such arrangements impractical".
In support of his submission that the justices should have given further consideration to other options, counsel for the chargepayer referred to the predominant purpose of the power of commitment, namely that of persuading the debtor to pay rather than to punish, as established in Re Smith (A PI 1989 [see this section],
Pill J then drew attention to the fact that during the periods concerned in this case there was nothing to prevent an authority from seeking deductions from income support during the course of an application for the issue of a warrant of commitment. That position was changed for community charge on 1 st April 1993 so that income support deductions were no longer an option in these circumstances from that date.
Dealing with the question of whether there is an obligation to consider other methods of recovery before resorting to commitment action, Pill J said that, in his judgment, Parliament had not sought "to limit the power to commit to prison to those cases in which every other possibility has been exhaustively explored".
Pill J pointed out that the justices retained a discretion, and he said that "there will almost certainly be cases in which defendants receiving income support can properly be committed". He emphasised that the justices, in exercising their discretion, must keep in mind the predominant purpose of the regulations and the other means of enforcement that are available.
It was found that the justices were entitled to reach the conclusion that they did with regard to the chargepayer's failure to pay, but it was held that they had misdirected themselves when they took the view that it was not practicable to make arrangements regarding deductions from income support.
The charging authority's affidavit indicated that it was believed that it was not open to the authority to consider deductions because the commitment order had already been made by the time of the request, but it was, in fact, apparent that such action was available at the material time. The justices ought to have considered that possibility as being relevant to the exercise of their discretion.
In view of the justices' error in not taking account of the possibility of making arrangements for deduction from income support as an alternative to commitment action, their decisions to issue the commitment orders were quashed.
POSTPONED WARRANT OF COMMITMENT - MEANS INQUIRY - EXTENDED PAYMENT ORDERS - REMISSION - NOTICE OF FURTHER HEARING
The chargepayer was the subject of commitment proceedings in respect of unpaid community charges for the years 1990-91 to 1992-93, and the magistrates' court found that his failure to pay was due to his culpable neglect. A term of imprisonment of 14 days was fixed on that occasion, and the warrant of commitment was postponed on terms that payment against the arrears be made at the rate of £5 per week.
The chargepayer did not maintain the payments ordered by the court and a further hearing was arranged. The notes made by the justices' clerk, as produced in evidence to the High Court by the chargepayer's solicitor, indicated that the notice of further hearing was issued to the chargepayer at his last known address and that, in his absence at the hearing, the magistrates reviewed his situation and decided to issue the warrant of commitment for a reduced term of 11 days imprisonment.
Before the High Court, the decisions of the justices at both of the hearings were challenged, firstly on the basis that they had misdirected themselves with regard to the inquiry that ought to have been carried out into the question of whether the failure to pay was due to the chargepayer's wilful refusal or culpable neglect. The justices submitted no evidence to the High Court, and Latham J concluded, again from the notes supplied to the chargepayer's solicitor by the justices' clerk, that no enquiry had been made in relation to the chargepayer's ability to pay.
The decision of the magistrates on the first occasion was found to be unlawful on the basis that the initial condition for the making of a warrant of commitment had not been satisfied. Two further issues were considered, however, one concerning each of the orders of the magistrates at the two hearings, as submitted by the chargepayer's solicitor.
The first of these two additional contentions was that, because it was the original order that £5 per week be paid against a total debt, then, of over £900, the court was effectively imposing a threat of imprisonment lasting in excess of 3 years. Reference was, in this context, made to the judgment in R v Ealing Justices ex parte Cloves 119911
The second issue concerned information that the chargepayer had moved to other accommodation before the date on which the notice of further hearing was issued by the court, and that that document may not, in consequence, have come to his attention. Reference here was made to R v Hyndburn Justices ex parte Woolaghan 1994 [see this section].
Latham J found that the magistrates should not have contemplated making a postponed committal order on terms which would lead to the threat of imprisonment lasting for such an extended period, and he took the view that the approp riate course of action, in circumstances where the debtor is of limited means, would be to remit such part of the arrears as would reduce the total sum to a level whi ch could be met by the instalments envisaged within a reasonable period. The first decision of the magistrates was found to be unlawful in this respect.
As to the second point, Latham J said that it was the responsibility of the justices to ensure that the notice of further hearing had come to the attention of the chargepayer and that, in view of his acknowledged poor health, they should have made enquiry to ensure that he "was not suffering from one of his periodic illnesses". It was found that the magistrates' decision on the second occasion was unlawful on account of their failure to pursue this matter, notwithstanding that it was, in any event, of no effect because of the finding that the decision at the first hearing was unlawful.
The application was allowed, and the decisions of the magistrates' court at both of the hearings were quashed.
THE FURTHER HEARING - THE DUTY TO PROVE NON-COMPLIANCE - CONSIDERATION OF CHANGES IN CIRCUMSTANCES
A term of imprisonment of 90 days was fixed in respect of the chargepayer in response to his failure to pay an amount of arrears of community charge and costs. The issue of the warrant of commitment was, however, postponed on condition that payments of £10 per week were made thereafter.
The payments continued for a period then stopped, and the chargepayer was served with a notice advising him that a further hearing would be held at a specified date and time.
The chargepayer did not appear before the court for the second hearing, and the magistrates proceeded to consider evidence as to the service of the notice of hearing and as to the non-payment of the balance of the arrears.
The magistrates formed the opinion that the demands of natural justice had been met, in terms of adequate notice having been given to allow the chargepayer to appear and of the authority proving non-compliance with the order of the cou rt, and they duly issued the warrant of commitment for a revised term of 80 days.
Proceedings for judicial review of the magistrates' decision were then commenced and, at the hearing of that application, it was argued that a second inquiry into the current means of the chargepayer should have been carried out, in his presen ce (as was required in relation to the first hearing!, and that, since it was not, the decision of the magistrates' court should be quashed.
The High Court dismissed the application, and the chargepayer appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal on the ground that there is no requirement that the magistrates must inquire, in the debtor's presence, as to his current means at the time of the further hearing following a failure to comply with the conditions attached to a postponement of a warrant of commitment.
It was, further, said that it would have been open to the magistrates to consider any change in circumstances which the debtor chose to explain at the second hearing, and for the magistrates to vary the condition as to payment and to continue the postponement of the issue of the warrant. In view of the chargepayer's failure to appear, however, the magistrates' court was justified in issuing the warrant.
An order of magistrates to dismiss an application for commitment and to remit an amount of outstanding rates was quashed by the High Court because their reason for doing so was a wholly unjustifiable basis upon which to exercise their discretion.
The magistrates' decision was based upon the fact that the rateable value of the property had been increased after the ratepayer had been advised of a lower figure. The ratepayer paid an amount she had calculated on the basis of the lower value, and the magistrates took the view that it was unjust that she should be expected to pay the difference.
Magistrates are required to make inquiry as to whether failure to pay was due either to wilful refusal or culpable neglect, and if they conclude that neither is the case, they have no discretion and they may not make a committal order. In this case, however, the magistrates, concluding that the ratepayer had been misled by the rating authority, made no such inquiry.
Donaldson LJ said that a committal order is only to be made if payment can be made and there is no other way of inducing the ratepayer to do so, and that the power of remission is intended to be exercised solely where there is an inability to pay, whether by the sale of property or by the use of savings or earnings.
The magistrates never considered whether this was such a case and their decision to remit the payment of the rate arrears could not, therefore, be justified.
POSTPONEMENT OF THE ISSUE OF WARRANT OF COMMITMENT - THE FURTHER HEARING - THE DUTY TO PROVE NON-COMPLIANCE - CONSIDERATION OF CHANGES IN CIRCUMSTANCES
A term of imprisonment was fixed and the warrant of commitment postponed in consequence of an order that the ratepayer wouLd pay £50 per week. The warrant was issued when the payments stopped, but this was quashed by the High Court on the grounds that there ought to have been a further hearing before the decisi on was taken to issue the warrant.
It was adjudged to be incumbent on the rating authority to Lay before the magistrates evidence that the condition as to payment had not been complied with, and in those circumstances there must be an opportunity to be heard.
Further, it was suggested that a change in the debtor's circumstances could be considered at the second hearing, this view stemming from an earlier case in which it was said that "The offender may have been ill or may have lost his job in the meantime. If that be the case, the court may well think it just not to issue a warrant. But how can it even consider that question unless notice is given to the offender, so that he can then draw the circumstances to the attention of the court ?"
THE INQUIRIES INTO MEANS AND CONDUCT - CULPABLE NEGLECT
The case
Decisions of the magistrates' court to issue a commitment warrant and to fix a term of imprisonment of 30 days were quashed by the High Court because the view taken by the magistrates that non-payment was caused by the debtor's culpable neglect, since he had the potential to earn money, was wrong.
Potts J said that
the material time for assessing whether the applicant's failure to pay the charge was due to wilful refusal or culpable neglect was the period between the service of the demand and the making of the liability order
the material time for assessing the debtor's means was the date upon which the application was heard;
in certain circumstances, a failure on the part of the debtor to work and put himself in funds might constitute culpable neglect, but before such a finding could be sustained, at the very least there would have to be dear evidence that gainful employment, for which he was fit, was on offer to the debtor and that he had rejected or refused that offer.
This case was followed by consideration by the European Court of Human Rights of the questions of whether the chargepayer should have been entitled to compensation for "wrongful detention" and whether a local taxpayer is entitled to legal aid in defending an application for commitment to prison.
The judgment of the European Court was given on 10 June 1996, and it was held that there had been no violation of the Convention in relation to the chargepayer's detention for non-payment of the community charge, since it could not be said with any degree of certainty that the judgment of the High Court was to the effect that the justices' error in committing the debtor to prison was "so grave as to deprive them of jurisdiction within the meaning of English law". The question of an enforceable right to compensation was, in consequence, held to be not applicable.
The Court also considered that where deprivation of liberty was at stake, the interests of justice, in principle, called for legal representation, and found that the denial of legal aid at a hearing before magistrates of an application for commitment was a breach of the Convention.
POSTPONEMENT OF WARRANT - ALTERNATIVE REMEDIES - THE PURPOSE OF THE POWER OF COMMITMENT
The applicant in this case was the subject of a liability order issued by the magistrates' court in respect of unpaid community charges. Because of her continued failure to pay, and since requests for financial information had been ignored, the charging authority ultimately made application for the issue of a warrant of commitment.
The justices carried out the necessary inquiries at the hearing, and concluded that non-payment was due to the chargepayer's culpable neglect. They consequently issued a warrant of commitment, specifying a term of imprisonment of 14 days, but postponed the warrant on conditions as to weekly payment.
Application for judicial review of the magistrates' decision was made, this being based upon an assertion that the decision was wrong in law since other methods of enforcement (e.g. attachment of earnings and deductions from income support! had not been attempted. It was clarified to the High Court that the applicant did not seek to challenge the decision of the charging authority in laying the complaint.
At the hearing before the High Court, information provided in the affidavit of the chairman of the justices indicated that the debtor's solicitor had requested an adjournment so that arrangements could be made for deductions to be made from income support. The justices had declined to adjourn, however, since the payment of income support was being made to the applicant's partner for the benefit of the whole family.
It was contended before the High Court that, in the light of previous decisions of that court, it had been established that it was an improper exercise of the power to commit if all other methods of obtaining payment had not first been tried and exhausted.
In support of this view, counsel for the applicants referred to selected parts of the judgments in a number of previous cases dealing with commitment applications. Turner J, however, approved of the judgment of Pill J in R v Sandwell Metropolitan Borough Council ex parte Lawn (1994! [see this section], and in particular the following passage
"In the circumstances, the charging authority were not bound to seek deduction from income support to the exclusion of applying for a warrant. Application for deduction from income support is not invariably a condition precedent to an application for a grant of a warrant. A decision to apply for a warrant could, in this case, rationally be made by a charging authority whose purpose was to extract payment rather than to punish",
In the present case, Turner J concluded that "The justices had a discretion on the evidence available to them what order they could properly make, They were not obliged in the proper exercise of that discretion to exhaust all possibilities of recovery otherwise than making a suspended committal order before making such an order", He added, however, "that they should have regard to other methods of enforcing payment before actually committing a debtor to prison is another matter" .
THE AVAilABILITY OF ALTERNATIVE METHODS OF RECOVERY - THE CONDUCT OF THE AUTHORITY
An application for the issue of a warrant of commitment was made on 4th January 1993 in respect of unpaid community charge, but proceedings before the justices were stayed when leave to apply for judicial review was granted on 5th March 1993.
)The grounds on which the application for judicial review was made were that the council had failed to have regard to what has become accepted as being the predominant purpose of the legislation, namely "to be used as a weapon to extract payment rather than to punish" [lord Jauncey in Re Smith (A P) (1989) - see section "Bankruptcy"], and that it ought, instead, to have sought deductions from income support.
The chargepayer said that she had asked the council to seek deductions from income support on a number of occasions, but that they did not, in fact, take this action until September 1993. She also referred to a statement allegedly made by the chairman of the council's finance committee on 4th March 1994 to the effect that the council would not take commitment action wherever it was known that a debtor was on income support.
Evidence was presented by the charging authority that four letters had been served on the chargepayer, at different stages, all of them urging her to make arrangements to pay, but no such arrangements had been made.
The council's recovery officer also said, in evidence, that, in his experience, applications for commitment were a help rather than an impediment to recovery, and that it was his practice to draw the attention of the magistrates to their power to postpone the issue of warrants of commitment.
In dismissing the application for judicial review, Pill J said that, in his judgment, the council's decision to seek a warrant of commitment was neither unlawful nor irrational. The decision was taken in the knowledge that, at the hearing, the court would enquire as to the chargepayer's means, that the court had a discretion as to whether to issue a warrant, and that the court had power to postpone the issue of the warrant on conditions.
In the circumstances of the case, where letters had been ignored and nothing had been paid, it was considered that the council was not bound to seek deductions from income support to the exclusion of applying for a warrant, and a subsequent decision to apply for such deductions, given the continued absence of payment and the delay occasioned by the application for judicial review, did not render the earlier decision irrational.
The statement of the chairman of the finance committee, made a year after the application for the warrant, could not, it was said, retrospectively create an expectation that the applicant would not be made subject to an application to commit.
SEPARATE CONSIDERATION OF SEPARATE LIABILITIES - PROPER CONSIDERATION OF MEANS - PROPER ANALYSIS OF HOW WEEKLY PAYMENT ASSESSED - CONSIDERATION OF REMISSION BEFORE QUESTION OF IMPRISONMENT EXTENDED PAYMENT ORDERS - CULPABLE NEGLECT - WILFUL REFUSAL
The applicant in this case was the subject of three decisions of the Sheffield Justices, in the years 1997, 1998 and 2000, in respect of various amounts of outstanding community charge and council tax, which eventually culminated in his being committed to prison for a term of 45 days.
Three liability orders had been made up to the time of the hearing of the first commitment application on 4th March 1997, these covering the years from 199192 to 1995-96, and the justices found that the failure to pay the then outstanding total of £2,257.87 {including costs and penalties! was due to the applicant's culpable neglect. They then made an order committing him to prison, but they postponed the warrant of commitment on terms as to payment at the rate of £8 per week.
The weekly payment of £8 was later reduced to £5 per week, at a second hearing on 12th March 1998, and the warrant of commitment was ultimately put into effect at the third hearing on 20th March 2000. The applicant, in fact, only served 3 days of the 45 day term before being released on bail.
At the third hearing. the magistrates also considered applications in respect of four further council tax liabilities. and their decision to commit the applicant to prison at that time therefore extended to a total of nine amounts, which included the first five that were the subject of the postponed orders of March 1997.
Before the High Court, the decision of the justices on 4th March 1997 was challenged, firstly, on the ground that no separate findings and inquiries had been made with regard to the separate liabilities arising under the three liability orders. Gage J, in this context, referred to part of the judgment in R v Warrington Borough Council ex parte Barrett (1999! [see this section], in which it was held that separate findings must be made in respect of separate periods of liability and that this consideration should take place before any determination as to wilful refusal or culpable neglect is arrived at. This view itself relied upon the judgment in R v Leeds Justices ex parte Kennett (1995! [see this section].
Gage J went on to concur with the view of counsel for the applicant that the affidavits provided by the magistrates only demonstrated that they had looked at the applicant's financial situation in relation to the whole amount of the debt, and that they had failed to make the necessary separate findings in respect of each of the liabilities. He said that this particular failure was sufficient to justify his quashing the order for the applicant's commitment, but he was prepared to deal with further matters raised by counsel.
These further matters concerned the assertions that
the magistrates' court could not have been satisfied that the applicant could discharge his liabilities at the rate of £8 per week,
the magistrates should have considered remitting part or all of the sum due, and that that consideration should have taken place before the magistrates dealt with the question of commitment, and
at the rate of the original order of £8 per week, it would have taken more than five years to clear the debt, and that period was too long.
As to the first of these issues, it was explained in the affidavit of the chairman of the bench that considered the matter on 4th March 1977 that, having taken account of the applicant's circumstances from 1991 onwards, the court had given him advice as to how to adjust his finances so as to enable him to meet his liabilities, for example by requiring his son to pay more board and by reducing his catalogue payments. The High Court found, however, that there was no apparent justification for arriving at a figure to be paid of £8 per week, and it was held, in consequence, that was a decision which no reasonable bench of magistrates could have made.
The question of remission was next reviewed, and the statement of the chairman of the bench that "only where enquiry is made and no warrant is issued can the court then consider to remit all or part of the appropriate amount" was noted. Counsel for the applicant suggested, however, that the court is required to consider the question of remission before it considers whether or not to commit. As to this, Gage J said that, "not without some hesitation, and without the benefit of argument on the other side", he accepted that this latter submission was a correct and logical construction of the regulations.
And finally, in relation to the order made at the first hearing, it was accepted by the High Court that in the light of the judgments in R v Ealing Justices ex parte Cloves (1991] and R v Newcastle upon Tyne Justices ex parte Devine (1998] [see this section for both of these cases] the magistrates should not have contemplated making an order as to payment over a period as long as five years. Gage J later observed that reducing the ordered amount from £8 per week to £5 per week at the second hearing simply extended the payment period to eight years, and that was far too long.
The order of the magistrates on 4th March 1997 to make the warrant of commitment was quashed, as was the further order as to the commitment of the applicant on 20th March 2000. The later order also referred to subsequent amounts of liability that arose after the year 1995-96, and was quashed, in these respects, on the grounds that the justices had made similar errors to those that had occurred at the first hearing.
The reasons for quashing this last order also included a finding that the magistrates were in error in concluding that the applicant's failure to pay was due to his wilful refusal. Gage J said that there was no positive indication that the justices, in their enquiries, had considered matters which would amount to anything near the standard of proof required to show a wilful refusal to pay.
Counsel for the applicant, in closing, sought to argue that Gage J should, in the circumstances, vary the committal order so as to impose a sentence of three days, this being the period of imprisonment actually served before the applicant was released on being granted bail. In view of the fact that there remained a substantial amount outstanding, however, Gage J chose to remit the matter back to the magistrates for further consideration as to the orders that should have been made had the proper procedures been employed.
THE REQUIREMENT TO DISTRAIN
The High Court refused applications for leave to apply for judicial review in respect of decisions of the magistrates' court that a warrant of commitment be issued in respect of arrears of £373 plus costs, and that the chargepayer be imprisoned for a term of 60 days.
The High Court found that
having instructed the bailiffs and received the bailiffs' certificate, the authority was entitled to form the view that insufficient goods could be found on which to levy;
the authority had "sought to levy" by instructing bailiffs, and the evidence of the instruction and report was called before the magistrates;
sufficient evidence had been produced, and there was no requirement to call for the bailiff to appear in order to give the magistrates jurisdiction;
the authority was not in breach of duty in seeking a warrant of commitment without first seeking an attachment of earnings order;
the magistrates' invitations to the applicant to give information as to his means were a sufficient enquiry as to his means, even though the debtor declined to respond to them;
the magistrates were entitled to conclude that the applicant's failure to pay was due to his wilful default;
there was no merit in the contention that 60 days was an unreasonab le period of imprisonment for the magistrates to impose since
it was only in exceptional cases where, for example, punishment was so far outside the normal limits that it amounted to an error of law that the court will intervene on the level of punishment imposed; and
the term imposed was below the statutory maximum and the terms imposed under this regulation around the country had varied enormously.
THE INQUIRY INTO MEANS - CULPABLE NEGLECT - THE STANDARD OF PROOF
The applicant was the subject of two postponed warrants of commitment, made in April and July 1993, in respect of arrears of community charge for the years to 31 st March 1992 and 31 st March 1993. A term of imprisonment was fixed in each case, and the warrants were postponed on conditions as to weekly payment.
In view of the failure of the chargepayer to maintain the payments ordered by the court, a further hearing took place in May 1994. Both periods of liability were considered together on that occasion, and the postponed warrants of commitment were issued. The chargepayer, who did not attend the hearing, was sent to prison for terms of 53 days and 47 days, these reduced periods reflecting amounts paid against each of the two liabilities.
Application for judicial review of the decisions of the justices was initially made on the following grounds
that there had been no means inquiries, or that the means inquiries were inadequate, at the two committal hearings in 1993;
that there ought to have been an inquiry into the applicant's means before the making of the first liability order in 1991;
that the power of remission ought to have been exercised in view of the ill health of the chargepayer; and
that the eventual issue of the warrants of commitment was unreasonable.
The chargepayer was later allowed to add a further ground relating to the standard of proof necessary in community charge recovery proceedings, this point only arising when the justices' clerk responsible for the first hearing provided his affidavit to the High Court. This emphasised that he had advised the magistrates that, before granting a warrant of commitment, it would be necessary for them to find, on the balance of probabilities, that the failure to pay which led to the making of the liability order was due to the defaulter's culpable neglect or wilful refusal.
The affidavit of the chairman of the justices included the following statement
"We found on the balance of probabilities that his failure to pay, leading to the issue of the liability order, had been due to his culpable neglect. We concluded that apart from committal to prison no other method of disposal would be appropriate. However, we still wished to facilitate collection of the sum owed. Accordingly, we decided to fix a term of imprisonment and suspended it on condition that the applicant pay £5 a week. The rate of payment was based on his current income and expenditure. The hearing of this application lasted approximately 20 minutes."
It was the evidence of the justices' clerk that the magistrates determined that the chargepayer was in receipt of sickness benefit of £41.20 per week, of which he provided £15 per week for the maintenance of his child, leaving an available balance of £26.20 per week.
As to the second period of liability, the clerk to the justices on that occasion said that it was established that the chargepayer was, by then, in receipt of sickness benefit of £42.70 per week, of which £5.60 was paid in rent, £7.50 was needed for loan repayments, £7.00 was for electricity charges, £5.00 was for previous community charge arrears and, now, only £5.00 was paid for the upkeep of his child. This, she pointed out, left a balance of £12.60 per week.
The affidavit of the chairman of the justices on the second occasion was similar to that of the chairman at the first hearing, but the following was added
"We would not expect a defaulter on state benefit to pay the amounts stated by the applicant as being paid to his child and the loan company. We would expect a nominal payment only in respect of a child and for a defaulter to renegotiate the terms of a loan to pay a lower amount over a longer period to facilitate payments of a priority debt."
With regard to the further hearing, the then clerk to the justices advised that a notice had been sent to the chargepayer's last known address and, in his absence, the two warrants of commitment were issued. The magistrates made no finding as to the relationship between the two terms, but the warrants were issued by the clerk to run concurrently.
Smedley J, in the High Court, sought to address only the two issues of whether the means inquiries were conducted in a sufficient form and whether the justices applied the correct standard of proof. He found that, in the event, the other points raised in the application did not need to be pursued.
Counsel for the applicant posed the question as to whether the justices were right in law, acting on their clerk's advice, to reach their opinion that the applicant was guilty of culpable neglect to pay by considering the evidence only on the balance of probability. He contended that the correct standard of proof was 'beyond a reasonable doubt', the standard in criminal process. Alternatively, he said, if the civil standard was appropriate, then a 'bare probability' would not suffice and a high degree of probability is required before the necessary opinion can be reached.
Smedley J acknowledged that there was authority for the view that the enforcement process for local rates, prior to the introduction of community charge, was not a 'criminal cause or matter', but he said that commitment to prison was the most direct possible interference with personal liberty and was indistinguishable from the effects of criminal process. He added that, in his judgment, justices who have reached the point of entertaining an application for non-payment of community charge are entertaining criminal process and that the process had both a coercive and a retributive aspect.
Smedley J considered that justices had to be sure that the debtor's failure to pay had been due to wilful refusal or culpable neglect, or that, alternatively, given
what was at stake for the individual, only the highest standard of probability was commensurate with the exercise of the power of committal. He said that the justices in the present case applied neither standard and that a bare balance of probability was not a sufficient standard.
Regarding the means inquiries carried out by the magistrates, Smedley J noted that the justices at the hearing in April 1993 had not enquired into the question of food, shelter or clothing, or as to the need to retain some income "in order to keep body and soul together". There was a fuller inquiry at the hearing in July 1993, he said, but it stopped short of establishing how much of the debtor's income was left and whether the residue was such that it was right to be satisfied that the applicant could have paid and was wilfully refusing or culpably neglecting to do so.
It was concluded that no apparent consideration had been given, in July 1993, to the fact that the chargepayer had less than £2 per day with which to feed and clothe himself, and that any savings which he might have made by paying less than £5 per week for his child, or by renegotiating his loan repayments, might well have been needed for his own subsistence and could not necessarily be pledged to paying his community charge.
It was found that the first inquiry into the chargepayer's means was 'too perfunctory', and that the second was not capable of being the basis for a finding of culpable neglect to pay. The decisions of the magistrates to fix a term of imprisonment and to postpone the issue of warrants of commitment at each of the hearings in 1993 were quashed, as were the magistrates' subsequent orders of May 1994 to issue those warrants.
APPLICATIONS FOR JUDICIAL REVIEW OF COMMITMENT ORDERS - MADE FOUR YEARS AFTER WARRANTS ISSUED - NOT PROVEN THAT IMPRISONMENT UNLAWFUL - DETRIMENTAL TO GOOD ADMINISTRATION TO ALLOW - APPLICATIONS DISMISSED BY HIGH COURT - APPEAL TO COURT OF APPEAL - FAILURE TO SATISFY THE BURDEN OF PROOF - APPEALS DISMISSED
The chargepayers in this case were each the subject of commitment procedures in the magistrates' court in respect of unpaid amounts of community charges for the year 1990-91. Warrants of commitment were made, in respect of Mr C for a term of imprisonment of 14 days in December 1991 and, after an initial postponement, in respect of Mrs D for a term of 42 days in March 1992. These terms we re served in full.
In February 1996, both chargepayers sought Leave to move for judicial review to quash the orders of the magistrates made in 1991 and 1992 respectively. Mr C cited as his reason for not applying earlier that he had not sought or been given any legal advice about appealing until three years after his commitment, when he had heard of others having had terms of imprisonment quashed, and Mrs 0 said that she had believed there was nothing she could do about her imprisonment until friends persuaded her to challenge the matter and she took legal advice in 1995.
The appellants were given Leave to move in July 1996, and their cases were heard together by the High Court in October 1997. The applications indicated that damages for malicious prosecution were sought against the billing authority, and it was submitted that the commitment warrants should first be quashed because the justices had no power to act as they did.
The grounds presented by both parties before the High Court were, in broad terms, that bailiffs had made no entry to the premises concerned for the purpose of levying distress, hence they had no grounds for certifying that they had been unable to find any or sufficient goods on which to Levy, and that the magistrates' court had made no enquiries as to the appellants' means before making the warrants of commitment.
)The clerk to the magistrates' court deposed that, with the exception of the court registers, most court papers relating to community charge proceedings in 199192 had, by the time of the High Court hearing, been routinely destroyed. and each of the magistrates involved in the case swore affidavits to the effect that they had no recollection of the cases concerned. They also made the point, however, that did not mean that they accepted the appellants' versions of what transpired at the original hearings. The billing authority filed evidence from their computer records and confirmed that the proceedings in question were carried out in accordance with the appropriate regulations.
In the Court of Appeal, Henry LJ recognised the difficulty that had faced the judge in the High Court in seeking to determine whether a fair trial of the content and conduct of committal proceedings could be conducted so long after the event. Citing as an example of the problem, he had pointed to the inability of Mrs 0 to produce any evidence to support her recollection that no means inquiry had been carried out.
The High Court judge had concluded, in the end, that the appellants had failed to discharge the burden of proof which lay upon them, and he dismissed the applications. He said in particular that, in view of the length of time that had elapsed, he was not prepared to make a finding on the question of whether the procedure carried out by the bailiff in relation to Mr C's liability was adequate, though Henry LJ, in the Court of Appeal, did say that he would have dismissed that particular ground of challenge as misconceived in that he considered it perfectly proper for a bailiff who failed to gain entry to make a return nulla bona.
With regard to Mr C's assertion that there had been no, or no proper, enquiry as to his means, the judge had held that he would not accept an affidavit asserting a breach" of the standard required of magistrates" after a delay such as had occurred, and he was not prepared to find that a factual basis for the complaint had been established;
In the case of Mrs D, the judge considered that the assertion that there was no enquiry into her means was unsupported by other evidence, but he found that there was evidence in the justices' clerk's notes of the occasion when the postponed committal order was made in December 1991, and that this pointed to the likelihood of there having been such an inquiry. The hearing at which Mrs D was ultimately committed to prison must, he said, have focused on what had prevented her paying the amounts ordered, and there was, in addition, the protection of the duty solicitor in this instance.
With regard to Mrs D's assertion that the bailiff had failed to establish that no or insufficient goods could been found, the judge noted that although the authority's records showed that the bailiff had supplied a certificate of 'no effects' in August 1991, the bailiff's own records did not show that. They only recorded that a visit had been made, that no entry on the premises had taken place, that a 'van notice' had been left and that "unsigned walking possession" had been taken.
The judge in the High Court concluded that it appeared that, in the case of Mrs D, there was likely to have been evidence before the magistrates of an "empty distress", and he found that he could not, in the circumstances, say that the magistrates had behaved in an unreasonable way.
In the Court of Appeal, Henry LJ said that the principle of the burden of proof was a necessary protection to ensure that cases were not decided on guesswork, and he said that when the judge, after reviewing the evidence, concluded that the appellants had not made out their case, he was bound to so find. This was parti cularly so where proper investigation of what happened was impossible because of evidence "lost in the years of silence" before the appellants made their complaint.
Henry LJ said that there was nothing here to suggest that the judge had erred in his approach, neither was the conclusion he reached manifestly wrong. The judge, he said, was entitled to hold that neither applicant had discharged the burden of proof on them, and he found favour with the judge's view that it would have been detrimental to good administration to allow the applications, since that would have led to many other applications being made at times when it would be impossible for proper and necessary checks to be made.
The appeals against the decision of the High Court to refuse judicial review were dismissed.
R V TEESSIDE JUSTICES EX PARTE GOMER (1996)
INQUIRY INTO MEANS AND CONDUCT - SEPARATE LIABILITIES - THE FURTHER HEARING - NOTICE OF HEARING - SERVICE BY ORDINARY POST
The applicant was the subject of a liability order for arrears of community charge of some £720 for the three year period 1 st April 1990 to 31 st March 1993. The billing authority commenced commitment proceedings in view of his continued failure to pay, and he duly appeared before the magistrates' court on 29th July 1994.
The outcome of the commitment hearing was that a term of imprisonment of two months was fixed, and the issue of a warrant of commitment was postponed pending payment at the rate of £10 per week.
The chargepayer made payments totalling some £200 in response to the magistrates' order but, in due course, the billing authority informed the court that the payments had not been maintained, and a further hearing was arranged. A notice of that further hearing was served by first class post, to the chargepayer's last known address, on 25th September 1995, and the hearing proceeded in his absence on 2nd November 1995.
The warrant of commitment was issued at the further hearing, and the chargepayer was sent to prison for 43 days in respect of the outstanding balance of the arrears. The decisions of the justices were then the subject of applications for judicial review.
The affidavit of the chargepayer, before the High Court, indicated that he was on income support at the relevant time and that he had told the magistrates that he would be unable to make payments of more than £5 per week against the arrears. He said that he regarded this as an offer made "under the threat of imprisonment" and that it was made in the knowledge that he would not be able to afford such payments.
The chargepayer went on to say that the justices had ordered him to cancel any credit agreements he had entered into and to use the money which would otherwise have been spent to pay the community charge arrears. He submitted that no details of expenditure on food, clothing, heating or other essential items were asked for at the hearing, and no enquiry was made as to his circumstances at the time leading up to the issue of the liability order. He said that he agreed to the payments of £10 per week ordered by the court knowing that he would not be able to meet them, and that the hearing lasted no longer than 5 minutes.
The affidavits of the justices described a somewhat different situation. They said that they carried out an inquiry into the chargepayer's means and conduct and that they determined the level of his income and expenditure, which included board and lodging, payments to a catalogue company and payments of £6 per week for a music system, which had been purchased at a cost of over £600 some two months before the committal hearing.
The justices stated that they were aware that the council was able to seek deductions from income support but that they were of the view that the chargepayer could pay a sum in excess of the amount which could be taken by those means, They said that the chargepayer offered £5 per week, but they felt that he could afford much more, particularly since he had purchased the music system and had paid nothing against the community charge liability in a period of more than three years.
The magistrates were satisfied that the chargepayer had had the means to pay throughout the whole of the period concerned and that he had no excuse for paying nothing at all. They considered that the sum of £1 0 per week was an amount whi ch he could adequately afford and they believed that he would not pay the amounts due without the postponed commitment.
Council for the chargepayer submitted
that the magistrates failed to conduct adequate inquiries into the chargepayer's means at the time of the hearing or as to the reasons for his failure to pay;
that separate inquiries were not carried out into each of the liabilities for which committal was sought, as was found to be necessary in R v Leeds Justices ex parte Kennett (19951
that the magistrates could not have properly found the chargepayer to have wilfully refused or culpably neglected to pay, partly because it was a very short inquiry; and
that no questions had been asked at the means inquiry as to whether the chargepayer had any travelling costs or telephone costs.
In response to these submissions by counsel, Popplewell J said that it was the clearest possible evidence that the chargepayer had money which could have been used to pay the community charge, and he found that the ordered payment of £10 per week was amply supported by the evidence. He added that the justices were perfectly entitled to come to the conclusion that there was culpable neglect in this instance, since they had found that the chargepayer was in receipt of income support and had no excuse for not having paid.
As to the assertion that the three years' liabilities should have been considered separately, Popplewell J said that, in his judgment, the justices were not required to ask the necessary questions in respect of each period but were entitled to use their common sense and to say that the chargepayer had had the money with which to pay and that there was no reason why he should not have paid.
)It was the further evidence of the chargepayer, however, that he had moved house on several occasions and that he did not receive the notice advising him to attend the further hearing on 2nd November 1995. He said that he had not lived in the area since April of that year, and that nothing had been passed on to him from his previous addresses.
The High Court found that the magistrates were not in error in their carrying out of the necessary inquiries as to means and conduct, but it was concluded that the order for committal was flawed because, as Popplewell J put it, it was" clear from the authorities that the magistrates need to be satisfied that the applicant in this situation has been notified, and simply service by ordinary post is not of itself sufficient evidence that an applicant has been notified of the hearing". The judgment of Jowitt J in R v Hyndburn Justices ex parte Woolaghan [1994) [see this section] was cited in support of this view.
The warrant of commitment issued by the justices at the further hearing on 2nd November 1995 was quashed.
WILFUL REFUSAL
The issue of a warrant of commitment by the magistrates' court was upheld by the High Court, though the period of imprisonment was ordered to be reduced from 14 days to 7 days, which the chargepayer had already served.
)The magistrates had determined that the debtor had the means with which to pay the charge, this view being based upon the fact that she was married and that there were, at different points in time, wages, a redundancy payment and benefit [which included an amount for herself! coming into the household.
Apart from the question of the chargepayer's means, the magistrates said in their affidavit that they found that "her attitude was one of deliberately avoiding making any offer of payment even under the threat of imprisonment".
They also considered the fact that a previous court had fixed a term of imprisonment against the appellant's husband and had postponed the issue of the warrant on the condition that he made regular payment, and that he had made no payment as ordered by the court and so had been committed to prison.
Tucker J said
"The magistrates were justified in concluding that a family decision had been taken not to pay and the husband's conduct was a material factor to which they were entitled to have regard".
"I cannot say that the justices were wrong in the decision which they reached or that it could be categorised as unreasonable in the 'Wednesbury' sense,"
"Bearing in mind that the applicant has already served eight days in prison and has been on bail for over a year, in my opinion that is enough."
JUSTICES' JURISDICTION TO CONSIDER LIABILITY AT COMMITMENT HEARING - RATEABLE OCCUPATION - THE INQUIRY INTO MEANS - CULPABLE NEGLECT - THE PURPOSE OF THE POWER OF COMMITMENT
The case
This case proceeded to the High Court on the basis of a case stated by the magistrates' court and by way of application for judicial review, though the court chose to deal with the matter under the former procedure. The principal issue in the appeal was whether the magistrates' court was right to issue a warrant of commitment in respect of a person considered by the charging authority to be the occupier of a shop during a period when he contended that he was only an employee.
The liability arose during the period 1st December 1991 to 1st January 1993 and amounted to some £13,500. The ratepayer had paid nothing and, it being found that there were no goods upon which distress could be levied, he was ultimately summonsed to appear before the magistrates in response to an application for a warrant of commitment.
The ratepayer failed to appear at the hearing, and a warrant of arrest was issued. He subsequently appeared before the magistrates with his nephew, and then challenged the assertion that he was the person liable during the period in question and put forward the defence that his nephew had been the proprietor of the business at the time.
It was contended by the ratepayer that he had, in fact, only been the manager of the shop, being merely an employee of his nephew, and that he had taken £150 out of the shop's takings each week as his remuneration. The magistrates noted at this point, however, that the defendant was not legally represented, and they decided to adjourn the case so as to allow him to consider being represented, and so as to enable him to produce some evidence regarding his position in relation to occupation of the shop.
The ratepayer returned to the court for the next hearing, but he had not, in the meantime, arranged to be legally represented, and he proceeded to conduct his own defence. The magistrates initially considered the question of whether he had been liable during the period concerned and, after having seen a document purporting to be a form of licence, they concluded that he had, nonetheless, been the rateable occupier.
The justices found that the defendant was liable, that he had had the means with which to pay the rates, and that his failure to pay was due to his culpable neglect. A warrant of immediate commitment was issued and a term of 60 days imprisonment fixed.
It was argued by the billing authority, at appeal, that the magistrates had no jurisdiction to consider the question of rateable occupation, that being a matter, it was said, which only fell to be resolved at the earlier stage of dealing with an application for the issue of a liability order. However, Collins J, in the High Court, determined that it was a matter for the discretion of the justices to decide, in any given case or any given circumstances, whether they should go into matters falling within an earlier stage of the proceedings, and he found no fault with the decision of the justices in that respect.
The three findings of the magistrates were challenged by counsel for the ratepayer. He said that
there was no evidence upon which they could have concluded that the appellant was the rateable occupier;
there was no evidence from which they could properly conclude that he had been guilty of culpable neglect in relation to the failure to pay; and
there was no material on which they could properly come to the conclusion that the applicant had means to pay.
It was added that even if the magistrates had been satisfied as to all these matters, they ought to have postponed the warrant of commitment instead of giving immediate effect to it.
The evidence of the justices showed that they took the view that the appellant had been part of the "management and directing mind of the business, making financial decisions and settling financial matters", and that he was, thus, an occupier of the premises. They further said that they did not accept the document produced as being a bona fide valid licence agreement between the parties stated in it but regarded it as a device to avoid responsibility for the rates. It was noted that the signature on the document had not been witnessed.
Collins J said that, in the circumstances, the justices were entitled to find that the appellant was in occupation, that he had been in occupation over the relevant period, and that "the licence agreement really was not a trustworthy document". He added that they were also entitled to conclude that the business was being run on the basis that "you do not pay any overheads that you do not have to pay, and you do not have to pay tax, national insurance, rates and so on". It was considered that it could not be said that the justices could not reasonably find, in the circumstances, that non-payment was due to culpable neglect, and that they might, indeed, also have found that failure to be caused by wilful refusal.
As to the question of whether the justices were entitled to find, on the material before them, that the appellant had the means to pay, Collins J found that, in this respect, they were in error. This view was founded upon the evidence of the magistrates with regard to the means inquiry they carried out and which, in pa rt, referred to the appellant being in receipt of unemployment benefit of £91.40 per fortnight. The appellant had said that, at that time, he had no money to pay tile rates with and that he was not managing any shops.
The affidavit of the justices went on to say that they did not accept that unemployment benefit was the only money available to the ratepayer. They believed that he had made substantial profits from the business in question and from other businesses which they felt he was concerned in the management of. They added that he had, at one stage, offered to pay £5 per week, an offer which they had refused, and that he had then withdrawn that offer and refused to make any offer at all.
Collins J stressed that there was no evidence as to the profits the ratepayer had made, let alone that they were substantial. There was information as to the gross receipts of the shop being of the order of £2,000 to £3,000 per week at the times concerned, but this could not justify a finding that he had made "substantial profits", neither was there any evidence that the ratepayer was involved in other businesses or that he was concerned in the management of such.
It was found that there was no basis for deciding that there was money which the appellant could find to pay the rates, and that an immediate committal order was not, in consequence, appropriate. Given that the justices should only commit to prison if they are satisfied that there is no other means of obtaining the money, and that the purpose of commitment is not to punish but to extract payment, they must be satisfied that there is money available and that commitment is the only way of obtaining payment.
Collins J held that the justices had erred in committing the ratepayer to prison, and he initially indicated that the question of his means should be reconsidered by the magistrates' court. However, he ultimately determined not to remit the matter to the magistrates on the basis that the appellant had served 30 days of the 60 days sentence, and that that, as he put it, should "suffice to wipe out the liability" .
FINDING OF CULPABLE NEGLECT - TAXPAYER OF LIMITED MEANS - EXTENDED PAYMENT ORDERS - SERVICE OF NOTICE OF FURTHER HEARING - FAILURE TO INFORM MAGISTRATES AS TO PAYMENTS - MAGISTRATES' DISCRETION TO RECONSIDER
This application concerned two decisions of the magistra'tes' court in respect of arrears of council tax of £524, plus costs, owed by the taxpayer. The justices, in response to the billing authority's application for a warrant of commitment, found that non-payment was caused by the taxpayer's culpable neglect and committed her to prison for a term of 14 days but postponed on payment of £5 per week. This sum of £5 per week was offered, on behalf of the taxpayer, by her solicitor.
Subsequently, upon the court being advised that the weekly payments had not been maintained as ordered, a further hearing took place and the magistrates issued the warrant of commitment for a term of imprisonment of 10 days. The taxpayer was arrested and held in custody overnight, but was then granted bail and permission to apply for judicial review.
Before the High Court, the solicitor for the applicant made two challenges to the first order of the magistrates, He firstly submitted that the court had been wrong to make a finding of culpable neglect since the taxpayer had only "slender resources", and he further argued that the order that payment be made at the rate of £5 per week (an amount which he himself had offered on the taxpayer's behalf meant that she would be subject to the threat of imprisonment for too long a period.
As to the first of these points, Jowitt J said that it did not follow that the fact that a taxpayer had only slender means excluded the possibility of a finding of culpable neglect, and he drew attention to the principle that before a decision of the justices can be interfered with, it has to be demonstrated that it was "astonishing, truly astonishing or so widely disproportionate that no reasonable bench of justices could arrive at it" (the words of Tucker J in R v Thanet District Council ex parte Haddow (199211. Jowitt J found that the magistrates had considered the matter carefully, and he concluded that they were clearly entitled to find that the applicant had the means to pay and that her failure had been culpable.
So far as the solicitor's submission that the required weekly payments would lead to the committal order being in existence for too long a period, Jowitt J dismissed the solicitor's assertion that it was "settled law that financial orders should not take over two years to pay". He said that it was quite incorrect to say this and that, in his view, the length of time it would take to payoff arrears did not come within the scope of a challenge by way of judicial review,
With regard to the second order (i.e. the decision to issue the warrant of commitment and send the taxpayer to prison for a term of 10 days!, the solicitor made three further contentions. He said that
the taxpayer was not notified of the hearing,
the justices misdirected themselves in Likening the taxpayer, as described
in the magistrate's affidavit, to a person who had "decamped", and
the magistrates ought to have secured the applicant's attendance before the court and should have looked afresh at her means.
Jowitt J considered that the magistrates had satisfied themselves that the required notice of the further hearing had been properly served, this view being based upon evidence provided by the billing authority in the form of a recorded delivery receipt signed by a lodger at the premises and the fact that the taxpayer had resumed making payments soon after the delivery of the notice to her home. He said that the inference was irresistible that she did know of the hearing and that she had chosen not to attend or to send any message to explain why she would not be attending.
As to the solicitor's second point, it was acknowledged that the taxpayer had not moved from her home, and was not to be seen as being like a person who had, as the magistrate had put it, "decamped", but Jowitt J considered that this was not enough to lead to the committal order being set aside, given that she must have received the notice and had chosen not to attend. He further dismissed the third submission made by the solicitor that the matter ought to have been looked at again in the taxpayer's presence, since she had been in a position to attend the court so as to give the justices the opportunity to once again consider the facts.
It was held that none of the arguments made in relation to the second decision of the magistrates provided a basis which would be admissible in judicial review proceedings. A further matter was, however, brought to the attention of the High Court by the representative of the billing authority, this not having been raised at any stage by the taxpayer's solicitor and relating to the fact that the magistrates had not been told of the resumption of payment, by the taxpayer, or that she was, by then, paying monthly by direct debit in respect of the subsequent year's liability. The billing authority's representative urged that, because of this, the High Court should quash the decision to issue the warrant of commitment because of the authority's own procedural impropriety.
It was the decision of the High Court that the relevant order be quashed and that the case be remitted to the magistrates for further consideration. Jowitt J added, for the benefit of the magistrates hearing the case again, that it was his view that they retained a discretion to reconsider and that was a discretion which they might choose to use in this instance.
ADJOURNMENT - MEANS INQUIRY - FINDING OF CULPABLE NEGLECT REMISSION - SEPARATE CONSIDERATION OF TWO LIABILITIES - THE TERM OF IMPRISONMENT
This case concerned arrears of community charge for the years 1991-92 and 199293, which ultimately became the subject of a commitment order made by the magistrates' court in September 1998, The matter came before the High Court in November 1999, and neither the charging authority nor the magistrates were represented at the hearing of the appeal. The case, thus, proceeded on the basis of the terms of the case stated by the magistrates.
Before the High Court, it was established that the authority first sought the issue of warrants of commitment for the charges for the two years in question in January 1996. Some payments were made, and there were adjournments in 1996 and 1998, but the case in the magistrates' court continued in respect of the balance then outstanding in September 1998.
According to the stated case, it was determined by the justices that the chargepayer had been in employment and earning £130.00 per week at some unspecified time, that payment of the liability for the previous year 1990-91 had been secured by means of an attachment of earnings order, and that her employment had ceased on 12th November 1992. It was further found that she then received maternity allowance and income support and that, in September 1998, she had two children and was expecting a third.
The justices recorded that no payments had been made up to the time of the making of the liability orders but that the sum of £88.70 had been paid against the total due of £481.20 between the time of the commencement of the further proceedings in January 1996 and 26th June 1998, on which date a new payment arrangement had been agreed. Further amounts totalling £30.00 had then been paid by the time of the hearing in September 1998.
At the hearing, the chargepayer's representative had invited the magistrates to adjourn the proceedings on account of her pregnancy and because, it was said, there was some uncertainty as to her possible future entitlement to income support. It was also asserted that the failure to pay was not caused by wilful refusal or culpable neglect, and it was submitted that it would not be just to commit her to prison, given her financial circumstances, but that if she were to be committed the committal should be postponed on reasonable payment terms.
It was submitted for the charging authority that there had been wilful refusal or culpable neglect, and that every appropriate method of enforcement open to the council had been attempted. Voluntary agreements had consistently been broken, and there was felt to be no alternative but to make application for committal.
The magistrates concluded that it would not be reasonable to grant a further adjournment in view of the length of time the case had already taken, and they were of the opinion that no effort had been made to make payment against either of the liability orders when there had been money available. They also felt that it was not appropriate at this late stage to expect the authority to investigate the possibility of payment out of benefit, and they considered that "the applicant could no longer be trusted to honour informal agreements and the threat of imprisonment was now the only option open".
The justices found that non-payment was due to the chargepayer's culpable neglect, and they made an order committing her to prison for concurrent periods of six weeks in respect of each of the two liabilities, but they postponed the issue of the warrant of commitment on conditions as to payment at the rate of £2.50 per week. They emphasised in the stated case that it was their intention to encourage rather than punish, and they saw the periods of six weeks as being a reasonable proportion of the maximum three months in view of the fact that the chargepayer had paid part of what had been due.
Turner J, in the High Court, considered the following submissions made on behalf of the chargepayer
that an adjournment ought to have been granted;
that the justices should have considered remitting all or part of the sums in question;
that there had been no adequate inquiry as to means and that the justices could not, in consequence, have been satisfied that there had been culpable neglect;
that the justices failed to make separate inquiry in respect of ea ch of the two liability orders, and that this was inconsistent with the decision in R v Leeds Justices ex parte Kennett [1995) [see this section];
that the term of imprisonment was excessive.
Turner J determined that the case be remitted to the magistrates' court for reconsideration, by a differently constituted court, of the question of "whether an adjournment should have been granted for a limited period while the appellant's rights to the receipt of income support were established with a view to making a fixed order of deduction from that source". He then said that, if the magistrates were not minded to proceed in that way, they should consider whether the whole or part of the sums due should have been remitted on account of "the length of time which the charging authority had allowed to elapse since the debts had accrued" .
Turner J also said that the magistrates should carry out a proper means inquiry and make separate findings in respect of the two years in question and that, if they got so far, they should reconsider the levels of sentences. He referred, in this latter regard, to the judgment in R v Highbury Corner Magistrates' Court ex parte Uchendu [1994] [see this section], and indicated that he could see nothing within the justices' decision to explain how they had arrived at the two concurrent periods of six weeks imprisonment that they had imposed.
CASE STATED - BAIL - MEANS INQUIRY - THE PURPOSE OF THE POWER TO COMMIT - RECONSIDERATION OF FINDING OF FIRST HEARING AT FURTHER HEARING
Three individuals subject to enforcement action in respect of unpaid community charges sought judicial review of the decisions of the magistrates.
In relation to applications by way of judicial review generally, Turner J emphasised that the normal way of challenging the magistrates' decision in the High Court was by way of case stated, since judicial review was not the most comprehensive nor the clearest way of determining what occurred in the court below.
He added that section 113 of the Magistrates' Courts Act provided that when an application had been made to magistrates to state a case they had jurisdiction to grant bail.
In the first case, liability orders had been made for amounts due for the years 1990-91 and 1991-2, and this was followed, in February 1994, by the making of a warrant of commitment and the fixing of a term of imprisonment of 9 days, postponed upon payment of £6 per week. The payments were not made as ordered and, in January 1995, the chargepayer was committed, in her absence, to 7 days imprisonment.
The appellant's application for judicial review was made, and granted, before the police executed the warrant, and the execution was, in consequence, stayed.
The High Court considered the point made by the authority that the application for judicial review was out-of-time, there being a period of almost twelve months between the original order of the court and the application (which was not made until after the further hearing!. Given the circumstances of the applicant, however, the application was allowed to proceed.
The substance of the application in this case was, firstly, that the chargepayer felt, a year after the event, that the means and conduct inquiries at the first hearing had been insufficiently detailed, in that not enough information had been sought by the magistrates at the time. It was also contended that the magistrates ought to have realised that it was beyond the means of the chargepayer to pay £6 per week and that the order should not, in consequence, have been made.
It was then argued, initially, that the notice of the second hearing had not been received, though this point was conceded when evidence was given by the authority to show that the document had been posted through the letter box. However, the fact that the magistrates had, at this hearing, committed the chargepayer to prison without first ensuring that she attended court to explain her circumstances (particularly those relating to her children left at home], was cited as evidence that the decision to commit was perverse.
The High Court determined that the means and conduct inquiries had been properly carried out at the first hearing, and would make no criticism of the magistrates in the way in which they set about the task of conducting the further hearing. This was not a case where no means enquiry was carried out; the applicant was asked about her income and expenditure and, as Buxton J said, the magistrates were" entitled to look for some co-operation from the person from whom they were making the enquiry"
The affidavit of the magistrates on the latter occasion indicated their awareness that the purpose of the process was to extract payment and not to punish, and the issuing of the warrant in the circumstance of payment not having been achieved was approved by the court. The application for judicial review failed.
The same conclusion was arrived at in the case of a further applicant who alleged that the means and conduct inquiries had not been conducted adequately and who also suggested that commitment to prison was an act of perversity by the magistrates, given the presence of young children in the family.
On this last point, and referring to both the first and second applicants, Buxton J said that there was "no overriding principle that the interests of children staying with their mothers, important though those are, are paramount over any other consideration" .
The third application followed a somewhat similar pattern to the first two, but in this instance the chargepayer's solicitor had placed a considerable amount of additional information as to her financial circumstances before the magistrates at the second hearing, and said that the information presented at the first hearing was both wrong and unreliable. The magistrates, advised by their clerk, responded that they could not reconsider the original finding.
The High Court held in this particular case that the magistrates had fettered their discretion by not reconsidering the previous matter, and that their decision to issue the warrant was, as a result, flawed in law. The decision of the magistrates to commit this third chargepayer was quashed.
THE ASSISTANCE OF A FRIEND - PERSONS AGED UNDER 21 - THE ALTERNATIVE REMEDIES - THE PURPOSE OF THE POWER TO COMMIT
A decision to commit a chargepayer to a term of imprisonment of 30 days was quashed because
the magistrate did not allow the assistance of a friend;
the magistrate did not appear to have taken account of the provisions of Part 1 of the Criminal Justice Act 1982, which restrict the power of the court to imprison a person under the age of 21 [see R v Newcastle Justices ex parte Ashley [1993], in this section, for a fuller description of this limitation];
the power to commit to prison is mainly intended to be used as a weapon to extract payment rather than to punish; and
the magistrate had not, apparently, thought to ask the authority if the possibility of income support deductions had been considered.
The High Court declined to interfere with the judgment of the stipendiary magistrate that section 127 of the Magistrates' Courts Act 1980, which requires action to be taken within 6 months in some cases, does not apply.
APPLICATION FOR ADJOURNMENT - ALLEGED WITHHOLDING OF GRANT DISCRETION TO NOT ISSUE WARRANT - CULPABLE NEGLECT - THE PURPOSE OF THE POWER TO COMMIT
The premises concerned were used as a nursery and community youth centre by an unincorporated association. No rates had been paid between 1st April 1983 and 31st March 1989, and arrears had accrued in the sum of £11,817, after deduction of charitable relief.
The rating authority sought the issue of a warrant of commitment against an individual who was a trustee of the organisation, being the person who directed its operations. It was accepted that he was the person who was in possession of the premises during the period concerned and that he was liable to pay.
The ratepayer made application for an adjournment of the hearing, and stated that his solicitor had ceased to practice some 6 weeks before the date of the hearing. The magistrates considered that he had had time to remedy that situation, and they rejected the application for the adjournment and proceeded to hear the case.
The ratepayer alleged that the local authority had refused to release a government grant that he was entitled to, which would have been sufficient to cover the rates arrears. The magistrates, however, felt that it was not their function to consider that particular matter, and they found that the appellant, having had sufficient funds to pay the rates and there now being no prospect of his being able to do so, had failed to pay by reason of his culpable neglect.
The ratepayer was committed to prison for a period of 3 months, but he appealed to the High Court after serving 19 days of that term, and was released on bail. The grounds for his appeal were
that it was unreasonable of the magistrates to refuse to grant an adjournment while he obtained legal representation;
that the magistrates were wrong to treat the alleged withholding of a grant as an immaterial consideration;
that the magistrates had failed to appreciate that they had a discretion not to issue a warrant, even though they had found culpable neglect;
that the magistrates, having concluded that there was no prospect of the appellant being able to pay, should not have issued the warrant because the purpose of a warrant of commitment was coercive, to make the person pay, and not penal; and
in all the circumstances of the case, the imposition of the maximum term of imprisonment was unreasonable.
The High Court quashed the warrant of commitment because the magistrates had misdirected themselves as to the law. Roch J said that
it was desirable that a person who could be sent to prison for non-payme nt of rates had the benefit of legal representation;
a competent lawyer would have informed the justices of the true and sole purpose of the power to commit [but see note below] and of the matters to which they should have directed their minds;
the magistrates should have investigated the claim that a grant had been withheld;
the magistrates should have considered whether, in their discretion, they ought to have issued the warrant, and that in its turn would depend upon whether the organisation or the appellant had the ability to pay and was deliberately and unjustifiably withholding payment;
the magistrates should have looked at the possibility of making some alternative order;
the magistrates' determination that a postponement of the warrant was not appropriate because there was no prospect of payment should have led them to the conclusion that the warrant should not have been issued.
In view of the above conclusions, the court made no finding on the question of whether the justices were right to impose the maximum period of imprisonment.
REMISSION - TERM OF IMPRISONMENT FIXED - THE FURTHER HEARING - THE POWERS OF THE MAGISTRATES' COURT
The billing authority, here, had obtained seven liability orders from the magistrates' court in respect of arrears of council tax owed by the taxpayer for his residential caravan. He was ultimately summonsed to appear before the court on 6th April 2000 to answer an application for his commitment to prison with regard to an unpaid sum of £2,742,74.
After an adjournment to allow consideration of the question of the taxpayer's entitlement to council tax benefit, the matter came before the magistrates again on 4th May 2000 in respect of a reduced balance of £2,291.71, the reduction arising from the award of a single occupancy discount. The taxpayer was offered legal representation at this hearing but he declined this, and the court concluded, after carrying out a means inquiry, that failure to pay was caused by his wilful refusal.
The justices, consequently, fixed a term of imprisonment of 60 days but postponed the issue of the warrant of commitment on terms that the taxpayer pay the full amount outstanding within 7 days. Nothing was paid, however, and a notice was, in due course, issued requiring his attendance before the court. He did not respond to this notice, nor did he attend on the date specified, and he was eventually arrested under a warrant without bail and brought before the court on 10th August 2000.
The billing authority, at this hearing, requested that the postponed warrant of commitment be put into effect, and the justices then proceeded to carry out a second means inquiry. This disclosed that the taxpayer had savings in excess of £6,000, that he did not work and received no state help, and that he had refused to return forms sent to him by the councilor provide any information that might lead to him obtaining a reduction in his liability.
The justices ultimately decided to cancel the term of imprisonment and to remit all but £400 of the amount owing, which balance was to be paid within five days. This decision was based upon a presumption by the court that the taxpayer could have been entitled to council tax benefit during the seven-year period in question, and a view that imprisonment "seemed wholly inappropriate" for a person in these circumstances.
The billing authority requested that the magistrates state a case, and the matter proceeded, as an appeal, to the High Court. Neither the taxpayer nor the justices took part in these further proceedings, and no challenge was made as to the justices' entitlement to make the commitment order, but counsel for the appellant billing authority there submitted that once an order as to commitment had been made it was not open to the court, at the further hearing, to rescind it, and th at the power to remit only applies, in accordance with regulation 48 (21 of the 1992 regulations [see above], where no warrant is issued or term of imprisonment is fixed.
Richards J considered the billing authority's argument to be compelling, not only as a matter of simple construction of the regulations but also in view of the judgment in the case of Harrogate Borough Council v Barker (19951 [see this section], in which Harrison J accepted that it was not open to the justices to remit once a term of imprisonment had been fixed. Further, attention was drawn to part of the judgment of Laws J in R v Mid Hertfordshire District Council (1995], in which it was said that "a bench of magistrates dealing with a debtor - - - on a subsequent occasion cannot revisit the decision made by their predecessor".
In the present case, said Richards J, all the relevant facts appeared to have been before the bench that made the decision on 4th May 2000. He went on to say that, though it was asserted in the case stated by the magistrates who later considered the matter on 10th August 2000 that information as to the taxpayer's possible entitlement to council tax benefit, had he properly completed and submitted his claim, had not been considered, it was not open to the justices on the second hearing to take a different view as to the order that should have been made at the first hearing.
Richards J said that the justices at the second hearing should have concerned themselves with whether there were any changes in the taxpayer's circumstances and, if so, whether that should lead to the exercise of the limited powers available to them. He added that, even if there was a material change in circumstances, their powers were limited to a further postponement of the issue of the warrant and/or a variation of the conditions, and that they did not have the power to remit any part of the outstanding sum or to rescind the order fixing a term of imprisonment for non-payment of that sum.
The billing authority's appeal was allowed, and the case was remitted to the magistrates for reconsideration in the light of the judgment.
The issue in question was whether the rates had been paid, in circumstances where the rating authority had no record of payment having been made and the ratepayer being unable to produce a receipt or other documentary evidence of payment.
The Court of Appeal held that the magistrates’ court had made no error of law in declining to issue a distress warrant, since -
the burden of proof was on the rating authority to show that the rates had not been paid;
in deciding the case on the balance of probabilities, the magistrates’ court did not err in favour of the ratepayers;
although the full evidence called by the rating authority shifted the evidential burden of proof to the ratepayers, the ratepayers gave evidence at that point and succeeded in discharging the evidential burden of proof placed upon them.
The Court of Appeal further held that the magistrates’ court did not err in law in making no finding on the probability of a theft by council officers.
The High Court declined to interfere with decisions of the magistrates court to issue liability orders where community charge remained unpaid but community charge benefit applications had not been determined by the charging authority.
European Court of Human Rights in the cases of Lloyd and Others v United Kingdom and Beet and Others v United Kingdom in which the Court found various breaches of the European Convention on Human Rights arising from the imprisonment of council tax and community charge defaulters.
The cases also relate to the imprisonment of persons for non-payment of fines.
In relation to the non-payment of council tax and community charge, the Court held that the magistrates had failed to conduct a proper means inquiry before making orders committing the taxpayers to prison. Further, the taxpayers ought to have had access to Legal Aid at committal hearings as their liberty was at stake. Legal aid has been available in such circumstances, subject to a means test, since 1 June 1997 and should have been available to various of the applicants in the cases.
These cases emphasise the importance of magistrates conducting proper means enquiries before persons are committed to prison.
But if proper means inquiries are carried out, and if council tax defaulters who are eligible for legal aid at their committal hearings are represented under the Legal Aid scheme, there is no reason why committal to prison cannot continue in appropriate cases.
