R v Southampton Justices, ex parte Green
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE,Mr. JUSTICE BRIGHTMAN |
| Judgment Date | 28 April 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0428-1 |
| Date | 28 April 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0428-1
The Master Of The Rolls (Lord Denning),
Lord Justice Browne and
Mr. Justice Brightman
In The Supreme Court of Judicature
Court of Appeal
Revised
Application by Miriam Edith Green, pursuant to leave of the Court given on 13th January 1975. from decision of the Divisional Court given on 10th December 1974 whereby the applicant was refused leave to move for an order of certiorari directed to the Southampton Magistrates to bring up and quash their order aforesaid.
Mr. J. J. SMITH (instructed by Messrs. Bernard Chill & Axtell of Southampton) appeared on behalf of the Applicant
Mr. HARRY WOOLF (instructed by the Solicitor of Customs and Excise) appeared on behalf of Her Majesty's Customs and Excise.
Mr. Woolf has raised a preliminary point. Mr. Green was charged with an offence. Mrs. Green entered into a recognisance before the Magistrates as security for his appearance. He did not appear and the Magistrates estreated her recognisance. She desires to appeal from their decision. Mr. Woolf suggests that this may be "a criminal cause or matter"; and that an appeal does not lie to this Court, but to the House of Lords under the Administration of Justice Act 1960.
The words "criminal cause or matter" were considered by the House of Lords in Amand v. Home Secretary (1943) A. C. at page 156 Lord Simon said: "If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming Jurisdiction to do so, the matter is criminal."
Apply that test to an application to estreat a recognisance. The outcome is not a "trial" of the security. There is no "possible punishment" of the security for an "offence". A recognisance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt, because the enforcement is different. It is enforceable like a fine. It may be enforced by a warrant of distress, or by committing the defaulter to prison. See sections 64 and 96 of the Magistrates Courts Act 1952. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter. The preliminary point is not well founded, I think we ought to go on and hear the appeal
I entirely agree.
I agree.
On 11th September 1973, Harry Rodney Green was brought before the Magistrates at Southampton charged with the unlawful importation of cannabis under the Customs and Excise Act. He was not granted ball by the Magistrates, but he went to the Judge in chambers, who granted ball on condition that he entered into a recognisance of his own in £500, and provided two sureties, one in the sum of £3,000 and the other in the sum of £1,000, and surrendered his passport and so forth. The Magistrates had to consider whether the sureties were suitable and take their recognisances. On 9th October 1973 Mrs. Green offered herself to the Court as a surety in the sum of £3,000. The clerk asked her whether she was worth that amount. She said she had her home which she owned jointly with her husband. I add that, if the recognisances were forfeited, it would be sold. She added that she had three young children. The clerk tried to dissuade her, but she maintained that she wished to stand as a surety in the sum of £3,000. So the Magistrates accepted her as a surety in that sura. The usual recognisance was entered into by word of mouth.
Another man stood surety for £1,000; and Mr. Green himself in £500. The case was adjourned from time to time before the Magistrates. Each time the recognisances were renewed. On 14th March he was due to come up again before the Magistrates, so that he could be committed for trial. But he did not turn up on that occasion. He disappeared. Three or four months later, in August 1974, he telephoned his wife to say he was coming back. He went to the Customs and Excise and gave himself up and was taken into custody. Eventually at the end of November 1974 he was tried. He was found guilty and sentenced to four years imprisonment.
Although Mr. Green had given himself up, nevertheless the Customs afterwards took out a complaint against Mrs. Greenand the other surety. They asked the Magistrates to forfeit their recognisances. The complaint was heard on 18th October 1974. The Magistrates heard the case against the other surety. It took about two hours. They forfeited his recognisance in £1,000. We have had affidavits put before us as to what happened, by Mrs. Green herself and by the Chairman of the Bench and the Clerk. Then Mrs. Green's case came up. She was not legally represented. She was asked whether there was any reason why the money should not be estreated. She said she did not know, but that she put complete trust in her husband. They enquired into her means. She told them that the house was worth about £16,000, but there was a mortgage of £5.000. It was in Joint names. She was paying the mortgage instalments of £44 a month. She could not raise the £3,000; she was only a school teacher and her three children were aged 13, 12 and 9, But then the Customs representative asked about a boat which belonged to her husband. She said that it had been sold, but she did not know for how much. The Magistrates adjourned for a few minutes. Then they came back and announced their decision. It was that Mrs. Green was to forfeit the full £3.000; but they gave her two months in which to pay. She says that the clerk to the Justices said to her: "You must go and see your husband and ask him for the money from the boat," The clerk says that he said: "See if your husband can help you with any money obtained from the sale of the boat."
We have had produced to us an affidavit which shows that the boat has not been sold. It is moored at Teddington Lock. Its estimated value is £3,000.
Mrs. Green wishes to appeal. The first questlonis: Has she any right of appeal; and, if so. To whom: There is no appeal given to her by any statute. Not even under the Summary Jurisdiction Acts, see Rex v. Justices for Durham (1945) 1 K. B. 33.
The only recourse open to her is by way of an order in the nature of certiorari. She applied to the Divisional Court, but they refused her leave to apply for certiorari. She has applied to this Court for leave. We give leave, and proceed to hear her case.
At common law if a person gave a recognisance for the performance of a condition - and that condition was not fulfilled - he automatically forfeited the sum secured by his bond. By Jervis's Act, 1848 (11 and 12 Viot. C. 42 S. 21) there was set out the form of recognisance to be taken by Magistrates on granting bail. If the accused did not appear, the surety automatically forfeited the sum: and it was levied by the same process as a fine. But that has been altered now. Forfeiture is no longer automatic. The Magistrates are given a discretion. This is done by the Magistrates' Courts Act of 1952, section 96(1), which says:-
"Where a recognisance. is conditioned for the appearance of a person before a Magistrates' Court … and the recognizance appears to the Court to be forfeited, the Court may, subject to the next following sub-section, declare the recognizance to be forfeited and adjudge the person bound thereby, whether as principal or sureties, or any of them, to pay the sum in which they are respectively bound."
It seems to me that the word "may" confers a discretion on the Magistrates. Then sub-section (3) says:-
"The Court which declares the recognizance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum."
That puts the matter beyond doubt. The Court is enabled to do what the Justice of the case requires.
By what principles are the Magistrates to be guided? Theyought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure...
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