R v Colchester Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BROOKE |
| Judgment Date | 03 September 1993 |
| Judgment citation (vLex) | [1993] EWHC J0903-5 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 September 1993 |
| Docket Number | CO/384/93 |
[1993] EWHC J0903-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Brooke
CO/384/93
MRS JANET BETTLE (instructed by Messrs Thompson Smith & Puxon, Colchester) appeared behalf of THE APPLICANT
( As approved)
Friday 3 September 1993
MR JUSTICE BROOKEIn this matter Anthony Ernest Woolnough applies for judicial review of the decision on 27 January 1993 of Colchester Magistrates Court to commit him to prison for non-payment of rates. Earlier this year, I granted leave to Mr Woolnough to apply for Judicial Review, and granted him bail pending the decision. He has duly attended Court today.
The grounds on which relief is sought are that the Magistrates should not have made an Order committing him to prison without first having made inquiry into his means to pay, and his reasons for non-payment. It is said that such inquiry was made in 1991 before the imposition of a suspended committal Order, but that no fresh inquiry was made on 27 January 1993 before imposing a sentence of 50 days' commitment. Reference is made to a decision of Forbes J in R v Poole Justices ex parte Fleet [1983] 2 All ER 897.
So far as the facts are concerned, Mr Woolnough was the owner of a property known as 4 Berriman Close, Colchester, between 1987 and 1990. He was not living there at the time because he had separated from his wife, from whom he is now divorced.
On 25 November 1988, the Local Authority brought proceedings, in accordance with section 97 of the General Rate Act 1967, for the issue of a warrant of distress to enforce payment of just over £550 as money due for unpaid rates at those premises for a period between 8 January 1988 and 31 March 1989. They also asked for £15 costs.
On 16 December 1988, the return date of that summons, the Colchester Magistrates' Court directed that a distress warrant should be issued.
On 6 June 1989, similar proceedings were issued in relation to the non-payment of rates for the period between 1 April 1989 and 3 March 1990. On 20 June 1989, a further distress warrant was issued. Mr Woolnough has said that he was under a lot of pressure at the time, and that is why the rates were not paid.
On 30 January 1991, nothing having been paid, and there being no effective return to those distress warrants, the Local Authority issued two summonses applying for a warrant for committal. In the first instance these were returnable on 8 February 1991, when Mr Woolnough did not attend court. A warrant backed for bail was issued for him to attend on 1 March 1991. On that day, in his presence, the justices conducted a full inquiry into his means. They found him guilty of culpable neglect, and made an order fixing a term of 90 days' imprisonment. However, they postponed the issue of the warrant for commitment on the terms that he paid £30 a week. The arrears in question totalled nearly £1,000.
On 24 May 1991, the Colchester Borough Council wrote a letter expressing concern that by that time only £120 had been paid, and that there were now arrears of £390. They made it clear to him that unless £270 was paid by return of post, the matter would be returned to Court. By the following month, an additional £330 had been paid, making £450 in all. At that stage all payment ceased.
In his recent affidavit, Mr Woolnough has deposed that he lost his job and was unable to maintain the level of payment of £30 per week from then onwards. Previously, he had been working as a paramounter in the building trade. However, the building industry went into sharp recession, and he had not been able to obtain any employment since. That was the reason why he did not keep up the payments. In 1992, his house was repossessed by the building society with whom he had a mortgage. It was sold by them at auction for £2,000 less than the amount of the mortgage, but the building society agreed to write off that debt. He has deposed that he is now unemployed; his only income is Income Support, and he currently receives £175.50 per fortnight.
There is no evidence before the court that he communicated that state of affairs either to the local authority, or to the magistrates' court. Ultimately, on 4 December 1992, two summonses were issued, returnable on 23 December 1992, applying for the warrant of committal to issue, because the condition that he should pay £30 a week had not been fulfilled since June of the previous year.
That summons was served by recorded delivery. On the evidence which is before the court, the recorded delivery slip was signed by the applicant's step-daughter. The applicant is now married to the mother of the girl in question. She has deposed in her affidavit that she was visiting her mother at the time. Just after she had shut the door to go out, the postman arrived with a recorded delivery letter for her step-father and because she did not want to trouble her mother, she signed her mother's name on the receipt as 'J Woolnough'. She put the letter in her bag, and that was the last she heard of it. She does not know what happened to it after that.
In any event, despite having been served by recorded delivery, the summons did not come to the attention of the applicant, and he did not attend on 23 December 1992. A warrant for his arrest, backed for bail, was issued in accordance with the provisions of section 104 of the General Rate Act 1967.
It happened that on 1 January 1993 the applicant was arrested because of an unpaid fine, and because of unpaid parking tickets. The evidence before me is that he was produced in custody at the magistrates' court, the warrants for the non-payment of the fine not having been backed for bail. On that day the police executed the warrant for his arrest which had been issued in relation to the rates matter. He was released on bail with a date fixed for 27 January 1993.
This is the evidence which has been placed before the Court by the senior legal adviser to the Colchester Magistrates' Court, who has sworn a most helpful affidavit. Whatever happened on 2 January 1993, Mr Woolnough deposes that the police never mentioned to him anything to do with the matter of the unpaid rates, and he was still unaware of it. Whatever may be the truth of that, the applicant did not attend the Colchester Magistrates Court on 27 January 1993. He also says that he did not receive a letter sent to him by ordinary post on 19 January 1993, in which the Colchester Borough Council reminded him of the hearing on 27 January 1993, and warned him that if he failed to appear at court on 27 January the local authority would apply for his committal to prison in his absence. Mr Woolnough deposes that because of an unhappy chapter of accidents he never received that letter, and he had no idea what happened to it.
At all events, he did not attend the Colchester Magistrates Court on 27 January 1993. On that day, I am told by Miss Dawson on behalf of the Magistrates Court, that when at 3.00 pm the case was called on before three of the local justices, Mr Woolnough did not answer. The court heard evidence on oath from a Mr John Fisher for the council, who outlined the history of the case, gave evidence of the fact of the payments, and said that no other payments had been made since June 1991. He gave evidence as to the posting of the notice dated 19 January 1991, produced a copy of that notice to the court, applied for the two postponed warrants to be put into effect forthwith, and asked for £100 costs to cover the proceedings. The magistrates issued the warrants for commitment in respect of all the outstanding sums, including the costs of the previous proceedings, and the £100 costs for the current application, in accordance with section 102(3) of the 1967 Act. Credit was calculated in accordance with section 102(5) for the part payment, leaving a total of 50 days' imprisonment to be served.
That was on 27 January 1993, and the application for leave to apply for judicial review was dated 12 February 1992. On 19 February I granted leave and directed that the applicant be released on bail pending the full hearing.
The issue before the court is whether the justices were entitled to order the issue of the warrants for commitment, which had been postponed by them on 30 January 1991, when they were satisfied that Mr Woolnough had had notice of the hearing, and the opportunity to be heard, but was not present. From the affidavit sworn by Miss Dawson, it is clear that the magistrates regarded themselves as entitled to follow something which was said by Schiemann J in the recent case of R v Faversham and Sittingbourne Magistrates Court ex parte Ursell (1992) RA 110.
I must, therefore, say something about the relevant law. Because of the long history of the case, I am concerned with the provisions of the General Rate Act 1967 which were repealed when the community charge legislation, and the regulations made under that legislation, were brought in. The relevant provisions of the General Rate Act 1967...
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