Re Wilson
| Jurisdiction | England & Wales |
| Judge | Lord Scarman,Lord Elwyn-Jones,Lord Diplock,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 28 March 1985 |
| Judgment citation (vLex) | [1985] UKHL J0328-2 |
| Date | 28 March 1985 |
| Court | House of Lords |
[1985] UKHL J0328-2
Lord Scarman
Lord Elwyn-Jones
Lord Diplock
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Roskill. For the reasons which he gives I would allow the appeal and answer the certified question in the affirmative. I agree also with the orders which my noble and learned friend proposes.
My Lords,
I have had the benefit of reading, in advance, the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it, and for the reasons which he gives I would allow the appeal and answer the certified question in the affirmative.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it and for the reasons which he gives I would allow the appeal and answer the certified question in the affirmative.
My Lords,
This appeal raises a question of importance to magistrates' courts and to their clerks. The facts are simple and reflect a situation which is commonplace in those courts. On 19 June 1981 the Colchester justices fined the appellant. On two subsequent occasions in 1981 and on one early in 1982, they again fined the appellant. None of those fines was paid. On 2 March 1982 the appellant appeared before those justices in respect of that non-payment. The justices thereupon "fixed a term of imprisonment" - I use the language of section 77(2) of the Magistrates' Courts Act 1980 ("the Act of 1980") - that is to say 60 days but, again to use the language of the section, "postponed the issue of the warrant" on condition that the fines were paid at the rate of £3.00 per week. That period of 60 days was cumulative, separate consecutive sentences being passed in respect of each of the four unpaid fines.
There was uncontradicted evidence from the appellant that "the chairman of the magistrates told me that if my circumstances changed in the future so that I was unable to make the payments set out in the order, I should inform the court as soon as possible so that the appropriate variation could be made." Your Lordships will, I imagine, have no difficulty in accepting this uncontradicted evidence as correct since what is stated to have been said reflects, as your Lordships were told, the practice in many magistrates' courts when a suspended committal order is made. On 8 April 1982 the appellant wrote to the clerk to the Colchester justices saying he had changed his address - that that had caused an increase in his rent of £18.00 a fortnight and "I … just cannot afford to pay £3.00 a week for my fines." On 13 April 1982 the clerk replied:
"The court has no power to suspend the terms of the suspended committal … The arrears outstanding amount to £7.00 up to 13 April 1982 and unless these arrears are cleared I shall have no alternative but to issue the committal proceedings."
This letter must have caused some astonishment to the appellant in view of what the chairman had told him only a month previously. Fortunately for him prompt legal advice was to hand and his solicitors on 16 April 1982 sent to the clerk a long and careful explanation of the appellant's failure to pay. The clerk, who was obviously anxious if possible to avoid the issue of a warrant, replied on 21 April 1982, that:
"the difficulty is that in Reg. v. Clerkenwell Stipendiary Magistrate, Ex parte Mays [1975] 1 W.L.R. 52 it was held that there is no power to vary the conditions of postponement of the issue of a committal warrant for fines. This decision has attracted some adverse comment."
The clerk offered to delay the issue of the warrant to enable the appellant to challenge that decision. Later, on 27 May 1982, the clerk sent a formal refusal of the appellant's application for review of the terms of the suspended committal order so as to enable an application to be made for leave to move for judicial review.
No doubt because of delays occasioned by the necessity for obtaining legal aid, this application was not made until 29 March 1983. On 25 April 1983 it was refused by the single judge, Woolf J., who endorsed the application form in his own writing with the comment: "You are referred to Reg. v. Chichester Justices, Ex parte Collins [1982] 1 W.L.R. 334, and the last paragraph of my judgment." Happily, the appellant's advisers persisted and renewed the application for leave to the Divisional Court (Ackner L.J. and Glidewell J.) on 17 May 1983. That renewed application was granted. Following that grant of leave, the application was heard by a differently constituted Divisional Court (Stephen Brown L.J. and McCullough and Kennedy JJ.) on 27 July 1984. The application was then dismissed. The court however certified this question as a point of law of general public importance:
"Whether under section 77(2) of the Magistrates' Courts Act 1980 justices have the power to vary the conditions upon which they have, on a previous occasion, postponed the issue of a warrant of commitment."
Leave to appeal was refused by the Divisional Court but was subsequently granted by your Lordships' House.
My Lords, if this decision be correct, its effect is that whenever a defendant falls into arrears in paying fines, or is ordered to pay those fines by instalments, and then falls behind with those instalments by however small an amount (in the present case £7.00), however explicable the shortfall, for example, redundancy or illness, to prison that defendant must inexorably and immediately go. It follows that magistrates' courts who must be faced with this situation in many thousands of cases each year, though under a clear duty to enforce deliberate default in payment by a sentence of imprisonment, have no jurisdiction to mitigate the consequences of default brought about by misfortune. Having regard to the successive statutes passed in recent years designed to restrict imprisonment, and in particular imprisonment for non-payment of fines or non-compliance with other orders for payments of money, and to ensure that imprisonment in these circumstances is used only as a last resort, it seems strange that this should be the result of this legislation. Your Lordships have been greatly assisted through the statutory jungle by counsel for the appellant and junior counsel for the Treasury acting as amicus curiae as his predecessor had acted before the Divisional Court. One can only sympathise with the justices and their clerks that this branch of the law in which they are required to operate daily should have been allowed to become so complex.
I hope I do no injustice to the judgment of Stephen Brown L.J. in the Divisional Court, with which McCullough J. clearly concurred only with reluctance, if I say that it was largely founded on two earlier decisions of the Divisional Court which on this occasion the Divisional Court felt bound to follow. The first case is Reg. v. Clerkenwell Stipendiary Magistrate, Ex parte Mays [1975] 1 W.L.R. 52 ("the Clerkenwell case") to which the clerk to the justices had referred when refusing the appellant's application. The second is Reg. v. Chichester Justices, Ex parte Collins [1982] 1 W.L.R. 334 ("the Chichester case") to his judgment in which, as already mentioned, Woolf J. helpfully referred the appellant when refusing the initial application for leave to move for judicial review.
I shall have to consider those two cases in more detail hereafter, especially in the light of the decision of this House in In re Hamilton; In re Forrest [1981] A.C. 1038 which preceded the Chichester case.
My Lords, before I do so there is, however, a matter of some general importance to which your Lordships would wish to advert. In one passage in his judgment Stephen Brown L.J. appears to have thought that one reason for following the judgment of Woolf J. and for accepting his reasons for not fully applying the principles enunciated by my noble and learned friend, Lord Fraser of Tullybelton in his speech in In re Hamilton was that an appeal committee of this House (which as it happens on that occasion included my noble and learned friends, Lord Scarman and Lord Bridge of Harwich) had refused leave to appeal in the Chichester case.
Seemingly the Divisional Court felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespread in the profession. My Lords, if that were so, as my noble and learned friend, Lord Diplock, remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better. There is a multitude of reasons why, in a particular case, leave to appeal may be refused by an appeal committee. I shall not attempt to embark upon an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns upon its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. Your Lordships' House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms. It is not difficult to find in the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which...
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