R v Oldham Justices, ex parte Cawley ; R v Governor of Risley Prison ex parte Ryan ; R v Governor of Risley Prison ex parte Healey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN |
| Judgment Date | 28 November 1995 |
| Judgment citation (vLex) | [1995] EWHC J1128-3 |
| Docket Number | C0-1832-95 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 1995 |
[1995] EWHC J1128-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Lord Justice Simon Brown Mr. Justice Scott Baker Mr. Justice Latham
C0-1832-95
MR. E FITZGERALD QC AND MR. I WISE appeared on behalf of the appellants. (Instructed by Clyde, Chappell and Bortham, Tunstall.)
MR. S RICHARDS AND MR. J TURNER appeared on behalf of the respondents. (Instructed by Solicitors to the Justices.)
28th November 1995
Offenders generally and young offenders in particular ought not to be locked up for non-payment of fines unless no sensible alternative presents itself. Down the years too many have been. Time and again committees have voiced this view (see for example the Departmental Committee Report to the Home Secretary dated July 1934 Cmd 4649) and time and again Parliament has legislated to promote it. Much of the legislation is directed at magistrates' courts and it includes provisions requiring various matters to be specified in the warrant of commitment if commitment there must be. The great question raised by these applications is whether, and, if so, in what circumstances, habeas corpus is available if those provisions are not complied with.
Out of the 21 cases initially listed for hearing before us three ultimately were selected for determination for the differing light they throw upon the central issues arising. It is as well to make plain at the outset, however, that even the 21 represent a fraction only of the total number of these cases now awaiting determination. Some come as habeas corpus applications, others as applications for judicial review, many as both. The central problem they raise, the lawfulness of the approach to committing fine defaulters in many magistrates' courts, is a huge one, only quite recently exposed and now threatening to overload the facilities of this court.
This hearing, however, cannot hope to solve the entire problem. Rather it is confined to considering the role (if any) of the writ of habeas corpus in this field. If habeas corpus is not an available remedy, then clearly judicial review is, and the challenges would have to be advanced on that basis.
With that brief introduction let me at once turn to the governing legislation before identifying the two quite distinct ways in which Mr. Fitzgerald QC on behalf of these applicants contends that habeas corpus properly lies.
I shall set out only those provisions most directly relevant to the present cases. Any interested reader, however, will need to place them in their wider statutory context so as to understand the general scheme under which fine defaulters can be committed to custody.
Section 82(4):
"Where a magistrates' court is required by subsection (3) above to inquire into a person's means [as in these cases], the court may not on the occasion of the enquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless -
(a) in the case of an offence punishable with imprisonment, the offender appears to the court to have sufficient means to pay the sum forthwith; or
(b) the court -
(i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and
(ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court thatthey are inappropriate or unsuccessful."
Section 82(4A) (inserted by the Criminal Justice Act 1988):
"The methods of enforcing payment mentioned in subsection 4(b)(ii) above are -
(a) a warrant of distress under section 76 above;
(b) an application to the High Court or county court for enforcement under section 87 below;
(c) an order under section 88 below;
(d) an attachment of earnings; and
(e) if the offender is under the age of 21, an order under section 17 of the Criminal Justice Act 1982 (attendance centreorders)."
Section 82(6):
"Where a magistrates' court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection ( 1) or (4) is satisfied, it shall state that fact, specifying the ground, in the warrant."
Section 88(1):
"Where any person is adjudged to pay a sum by a summary conviction and the convicting court does not commit him to prison forthwith in default of payment, the court may, either on the occasion of the conviction or on a subsequent occasion, order him to be placed under the supervision of such person as the court may from time to time appoint."
Section 88(4):
"Where a person under 21 years old has been adjudged to pay a sum by a summary conviction and the convicting court does not commit him to detention under section 9 of the Criminal Justice Act 1982 forthwith in default of payment, the court shall not commit him to such detention in default of payment of the sum, or for want of sufficient distress to satisfy the sum, unless he has been placed under supervision in respect of the sum or the court is satisfied that it is undesirable or impracticable to place him under supervision."
Section 88(5):
"Where a court, being satisfied as aforesaid, commits a person under 21 years old to such detention without an order under this section having been made, the court shall state the grounds on which it is so satisfied in the warrant of commitment."
Section 9:
"Detention of persons aged 18 to 20 for default or contempt -
(1) In any case where, but for section 1(1) above [forbidding courts to imprison or commit to prison those under 21 years of age], a court would have power -
(a) commit a person under 21 but not less than 18 years of age to prison for default in payment of a fine or any other sum of money; or
(b) to make an order fixing a term of imprisonment in the event of such a default by such a person…
The court shall have power, subject to section 1(5) above, to commit him to be detained under this section…"
Section 1(5):
"No court shall commit a person under 21 years of age to be detained under section 9 below unless it is of the opinion no other method of dealing with him is appropriate; and in forming any such opinion, the court -
(a) shall take into account all such information about the circumstances of the default…..(including any aggravating or mitigating factors) as is available to it;
and
(b) may take into account any information about that person which is before it."
Section 1(5A):
"Where a magistrates' court commits a person under 21 years of age to be detained under section 9 below, it shall -
(a) state in open court the reason for its opinion that no other method of dealing with him is appropriate; and
(b) cause that reason to be specified in the warrant of commitment and to be entered in the register."
It will be seen that Section 82(6) of the 1980 Act applies to adults as well as young offenders and requires the justices in all cases to specify on what particular ground they are issuing the warrant —to state, in short, what category of case for commitment it is. The ground in all the present cases is that afforded by section 82(4)(b), essentially that the default was due to wilful refusal or culpable neglect and that no other method of enforcement would work.
Section 88(5), however, applies only to young offenders and upon their commitment requires the justices to state in the warrant the grounds on which they are satisfied that it is undesirable or impracticable to place the defaulter under supervision.
Section 1(5A) of the 1982 Act likewise applies only to the commitment of young offenders and requires the justices not only to state in open court their reason for concluding that no other method of dealing with the defaulter is appropriate but also to specify that reason both in the warrant and in the register.
Those provisions were clearly not complied with in the present cases.
In Cawley, the wrong form of warrant of commitment was used (a warrant apt for use on conviction instead of subsequent to conviction, albeit still making plain that it was for detention in default of payment), and it was silent as to the matters required to be stated by all three sections —82(6), 88(5) and 1(5A). The register in Cawley recorded "NOMA [no other method appropriate), considered all methods of enforcement, unlikely to obtain payments. Culpable neglect in not paying."
In Ryan the warrant was likewise silent on all matters. The register there recorded "Culpable neglect found, no power of AEO [attachment of earnings order], no other enforcement appropriate."
In Healey the warrant contained this endorsement:
"This court is satisfied that the fault is due to the accused's wilful refusal or culpable neglect and has considered or tried all other methods of enforcing payment, namely:
a. The making of a money payment supervision order;
b. The making of an attachment of earnings order;
c. The issue of a distress warrant;
d. An application to the High Court or county court for remedies available in those courts;
e. In the case of an offender under 21 years of age, the making of an attendance centre order; and it appears to the court that all these methods are inappropriate or unsuccessful.
f. An application to the Secretary of State to make deductions from income support."
The order in Healey had originally, on 21st February 1995, been suspended, at which time the court register recorded merely "culpable neglect to pay". At the date of actual commitment, 1st August...
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