R v Stoke on Trent Justices ex parte Wilby
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 18 November 1998 |
| Judgment citation (vLex) | [1998] EWHC J1118-10 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1654A/95, CO/3328/95 CO/3747/96, CO/2279/97 |
| Date | 18 November 1998 |
[1998] EWHC J1118-10
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
and
Mr Justice Sedley
CO/1654A/95, CO/3328/95
CO/3640/95, CO/3486/95
CO/3747/96, CO/2279/97
MR I WISE (Instructed by HMB Law (formerly known as Clyde, Chappell & Botham) Stoke on Trent) appeared on behalf of all the Applicants.
MR H KEITH (Instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
Wednesday, 18th November 1998
This is the judgment of the court
Committal to prison is available to a magistrates' court as a sanction of final resort after an offender has failed to pay a monetary penalty, and all other means of enforcing the order have been tried unsuccessfully or are considered to be unsuitable. Over the last 20 years Parliament has been sending a series of clear messages to the courts about the steps they must take before directing that someone must lose his or her liberty, particularly if under the age of 21. Unhappily, because we do not have an easily accessible Criminal Procedure Code in this country, these provisions are not very easy to find, and a large number of mistakes have been made in applying the procedures. People were being locked up when they should not have been, and some enterprising prison establishments, particularly Feltham Young Offenders Institution, in Greater London, and Risley Prison, outside Manchester, have been examining justices' warrants very carefully on receiving fine defaulters into their already crowded establishments. If they see any apparent deficiencies in the warrant, they arrange that the prisoner should contact solicitors, and in particular a firm of solicitors in the Midlands who specialises in judicial review cases involving fine defaulters. As a result, the defaulter is often released on bail by a high court judge, usually one or two days following his or her admission to custody. The question then arises whether the justices can defend the action they took, and if they cannot, what should be done to dispose of the case.
Before considering the points we have to decide, it is first necessary to say something about the procedures which were being ignored. As a result of a barrage of High Court decisions in the 1980s and the early 1990s fewer mistakes were now being made about the earlier parts of the enforcement procedures. In the cases with which we are concerned, these earlier procedures would involve the issuing of a distress warrant, to no effect, and a means inquiry, at which the defaulter was legally represented, which would culminate in a finding that he or she was guilty of culpable neglect (Magistrates' Courts Act 1980 ("the 1980 Act") s 82 (4)(b)(i)). It is at this stage that things started to go wrong.
Parliament has prescribed that a court which has conducted a means inquiry may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying a sum adjudged to be paid by the convicting court unless it has considered or tried all other methods of enforcing payment of the sum, and it appears to the court that they are inappropriate or unsuccessful (1980 Act, s 82 (4)(b)(ii)).
Five such methods are listed in section 82 (4A). In the type of case with which we are concerned, a distress warrant has been tried and failed (subs (4A)(a)), and High Court or county court enforcement (ibid (b)) is obviously inappropriate, since the defaulter has no assets. This leaves the court bound to consider the appropriateness of a fines supervision order (ibid (c)), an attachment of earnings order (if there are any earnings to attach) (ibid (d)) and, for a defaulter under the age of 21, an attendance centre order (ibid (e)).
The complicated provisions which follow are made even more difficult for justices to absorb because they are scattered across the 1980 Act and the Criminal Justice Act 1982 ("the 1982 Act"). One has only to look at sections 214 to 220 of the Criminal Procedure (Scotland) Act 1995 (which is not cluttered up with amendment sections, sub-sub-sections or sub-sub-sub-sections) to see how much more fortunate the courts of Scotland are in this regard.
Fine supervision orders are obviously appropriate for the type of feckless young defaulter with which most of the present cases are concerned. They are particularly appropriate in cases where a disaster like an eviction or a dismissal at work may mean that fine defaulters against whom a suspended committal order has been made have to leave their homes either compulsorily or in search of work. In those circumstances they may know nothing about the "notice to show cause" which is sent to their old address, and is either sent back to the court or left there unopened (for "deemed service" in these circumstances, see the 1980 Act, s 82(5A) and (5F)). In these circumstances the justices may direct that a fine defaulter may be committed immediately to prison without knowing anything about the intervening change of circumstances, which a supervising officer may know all about.
The power to make a fines supervision order is created by Section 88(1) of the 1980 Act. Section 88(4) makes clear Parliament's wish that if practicable this means of enforcement should be used in relation to defaulters under the age of 21. It expressly provides that a court shall not commit such a defaulter to detention [in a Young Offenders' Institution] "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."
If a court is satisfied that it is undesirable or impracticable to place a defaulter under the age of 21 under supervision, and it decides to commit him or her to detention without a fines supervision order having been made, Parliament prescribes that it "shall state the grounds on which it is so satisfied in the warrant of commitment" (s 88(5)).
Justices are helped to understand the purpose of this type of order by Rule 56(2) of the Magistrates' Courts Rules 1981, which makes it clear that it is the duty of a person who is for the time being appointed to supervise the payment of a fine under Section 88 of the 1980 Act "to advise and befriend the offender with a view to inducing him to pay the sum adjudged to be paid and thereby avoid committal to custody and to give any information required by a magistrates' court about the offender's conduct and means".
Part I of the 1982 Act is entitled "Treatment of Young Offenders". Despite Section 1(1), which prescribes that with one exception which is not relevant in the present context, no court shall commit a person under 21 years of age to prison for any reason, the St Helens' justices committed the 20-year old Marlene Jones to Liverpool Prison for fine default and a stipendiary magistrate at Greenwich committed the 20-year old Stanley Wright to Belmarsh Prison for fine default. Section 9 provides that fine defaulters between the ages of 18 and 21 may be committed to detention in a young offenders' institution, subject to Section 1(5), and the prison authorities turned a Nelsonian blind eye to the wording of the warrants and received them in Risley and Feltham respectively.
Later amendments to the 1982 Act did not include a clear cross-reference back from Section 9 to the new Section 1(5A), which has the effect of requiring a court which commits a young fine defaulter to detention to
"(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."
Finally, Section 17 of the 1982 Act makes clear provision for the making of attendance centre orders for fine defaulters under the age of 21. Provided that such a centre is available, orders of between 12 and 36 hours may be made (s 17(4)-(5)), and the number of hours may be reduced pro tanto if the whole or part of the unpaid fine is paid (s 17(13)).
The task of courts is made difficult enough by the labyrinth of statutory provisions they are required to take into account. It is not made any easier by the standard pro forma warrant of commitment which has been provided to them, which leaves them with very little space for explaining, for instance, why no other method of dealing with a young fine defaulter (other than detention) is appropriate, or why the court considered it undesirable or impracticable to make a fines supervision order in relation to such a defaulter.
It has been estimated that on average 22,500 fine defaulters were committed to prison service establishments each year between 1992 and 1995 (see "Fine Default—Time for Change", a report issued in 1996 by the National Association of Probation Officers). As a result of the intervention by solicitors which we have described, several hundred applications for leave to apply for judicial review or habeas corpus in these cases were lodged with the Crown Office between 1995 and 1997. In October 1995 three test cases were listed before a Divisional Court which ruled that judicial review was the appropriate remedy. See R v Oldham Justices ex p Cawley [1997] QB 1. At the end of his judgment, Simon Brown LJ said at p 22 C:
"A final point. We are leaving undecided all the judicial review challenges outstanding in respect of...
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