England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE STAUGHTON: These two cases are of considerable importance. We are told that there are some hundred or so like them in the Crown Office list. We are also told that these two are to be regarded as test cases. They were selected by counsel for the applicant and the appellant. (For convenience I will for the future refer to both of them as appellants, although Mrs Keenaghan applies for judicial review and Miss Conlon appeals by case stated.) Much of what we decide will relate to the individual facts of these cases; but some points may be of general importance.

2. We have received valuable assistance from Mr Ian Wise, who appeared for the appellants. However, I would have wished to have had argument for the other side. It was only when we had made some progress into these two cases that we became aware of the hope expressed by Simon Brown LJ in R v. Oldham Justice, ex parte Cawley (1996) 2 WLR 681 at p.699, that counsel would be instructed by the Treasury Solicitor on behalf of the justices. However, we have had help from other sources. We have been referred to a paper from the Lord Chancellor's Department on enforcement procedures for fines and other financial penalties. It contains a section headed Guidance for Sentencers, which (as explained in a letter from the Head of Criminal Policy Division)

3. An important part of that section was issued after consultation with the Lord Chief Justice.

4. We also have a paper on fine default from the National Association of Probation Officers, which contains some figures of significance:

5. In 1994, 1.42 million offenders were sentenced by the courts. The majority, some 1.09 million, were fined. The overwhelming majority of them paid their fines fairly promptly. However, around 200,000 persons were issued with a summons for non-payment, and of those around 11 per cent were received into custody ... Nevertheless, receptions into custody accelerated during the early Nineties and has averaged 22,500 per annum over the last 3 years. Around a quarter of all defaulters are under the age of 21.

6. Further figures are quoted: 70% of those jailed were in receipt of state benefit (Home Office); half of those received into custody were ill or disabled, either physically or mentally, and 60% of the women were single parents (World in Action); 730 were jailed for television licence evasion, and 500 for non-payment of community charge or its equivalent. But the offences committed were for the most part motoring (40%) and theft (17%). Offences of loitering, drunkenness and criminal damage accounted for 19%. There are, however, some signs of change. Even as I write a minister has announced a drop of over 50 per cent in the number of fine defaulters imprisoned this year.

7. One would expect different people to react differently to those figures. Some may regard it as satisfactory that in eighty per cent of cases it is not necessary to reach the stage of issuing a summons for non-payment; the sanction of imprisonment in default, imposed in about two per cent of cases, is necessary to maintain that level of compliance with court orders; when a defaulter is "cocking a snook at the enforcement system" (per Simon Brown LJ in Cawley at p.698) imprisonment is necessary. It may also be argued that those who can afford to drive a car or hire a television set should make provision for the expenses involved.

8. The contrary view is that people on income support are already living at subsistence level, that imprisonment for poverty or even for mere financial mismanagement can properly be described as inhumane in the present age, that other measures are available which are not sufficiently considered by the magistrates, that imprisonment is expensive (particularly for short sentences when it involves a higher level of administration), and that for single mothers and other deprived households a television set is not a luxury but a necessity. Furthermore the imprisonment of young people is more likely to introduce them to a life of crime than to dissuade them.

9. It is the task of the magistrates, bearing in mind those considerations, to identify the defaulters for whom imprisonment remains unavoidable, and to distinguish them from cases where some other measure is appropriate. Nobody can doubt that the task is difficult, or that the vast majority of magistrates are diligent and conscientious in the way they discharge it. To some extent the law lays down how they should proceed.

10. Section 82(4) of the Magistrates Courts Act 1980 provides:

11. Where a magistrates' Court is required by subsection (3) above to enquire into a person's means the court may not on the occasion of the inquiry 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 that they are inappropriate or unsuccessful.

12. The "other methods of enforcing payment" which must have been tried or considered are now listed in section 82(4A), inserted by section 61 of the Criminal Justice Act 1988. They are: (i) a distress warrant, (ii) an attendance centre order (for an offender under 21), (iii) a money payment supervision order, (iv) attachment of earnings, (v) enforcement in the High Court or a county court. Direct deduction from income support payments is said to be another method of enforcement which ought to be considered, and we have heard no argument to contradict that.

13. Where a magistrates court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground, in the warrant.

14. That subsection is of critical importance in the two cases now before us, which are both concerned with offenders over 21. In such a case it provides the only statutory requirement that the justices give reasons. In the Cawley case (at p.686) Simon Brown LJ said:

15. It will be seen that section 82(6) of the Act of 1980 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.

16. Simon Brown LJ went on to consider the additional statutory requirements in the case of persons under 21. They are to be found first in section 88(5) as amended by the Criminal Justice Act 1982. That requires the court to state in the warrant the grounds on which it was satisfied that it was undesirable or impracticable to make a money payment supervision order. The second additional requirement is in section 1(5A) of the Criminal Justice Act 1982 as amended by the Criminal Justice Act 1991:

17. 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.

18. In case there has been any misunderstanding of the Cawley judgment I repeat that neither of those requirements applies to an adult. That is illustrated by another passage from the judgment at p.66:

19. The Guidance for Sentencers produced by the Magistrates' Association and the Justices' Clerks' Society in some respects goes further than the Cawley decision. Thus the Enforcement Check List has this requirement:

20. There is also a draft Pronouncement, which leaves space for a reason for rejecting each of the six other methods of enforcement. Simon Brown LJ evidently did not regard that as a requirement imposed in the case of an adult by section 82(6) alone, and neither do I. The same tendency to exact more elaborate reasons from magistrates than the law requires, in the case of adults, appears in a draft form of committal warrant produced by the Justices' Clerks' Society.

21. Of course the Magistrates' Association and the Justices' Clerks Society are entitled, if they think fit, to recommend that more elaborate reasons should be given than the law requires; and it may be that the different regimes for adults and young offenders make it desirable to have forms which are wide enough to cover every case. But the task imposed on magistrates in a fine enforcement court is already demanding; it is for others to decide whether a requirement for more elaborate reasons will promote justice.

22. Having said that, I turn to the last section of the Guidance for Sentencers, headed

23. Use of Money Payment Supervision Orders following Cawley

24. It is submitted that the sort of defaulter suited to such an order is likely to be a person:

25. It is accepted that those under 21 might be more likely to fit these categories, but that the proportion of defaulters satisfying the criteria might necessarily be small. It is submitted that an MPSO is unlikely to be suited to a person:

26. Reasons for not trying MPSOs

27. The following reasons might justify not trying an MPSO:

28. That is to be commended.

29. At the relevant time Miss Conlon was 30 years of age with two children aged 11 and 7. She said in evidence that she was unemployed and received income support of £60.26 per week and child benefit of £25.15, making a total income of £85.41 per week. She had been convicted of a series of offences before the Stockport justices, on five occasions. She was committed to prison by five separate warrants on findings of culpable neglect to pay fines, for a period of 11 days in all.

30. A brief summary of her court appearances is as follows:

31. Driving otherwise than in accordance with her licence - fined £150.

32. Driving without insurance - fined £540.

33. No M.O.T. certificate - fined £40. £250 costs.

34. Total £805, to be paid in 21 days.

35. That, we were told, was in the days of unit fines; and Miss Conlon had not appeared.

36. Total £254.58, to be paid at £4 per week.

37. Miss Conlon had thus been convicted and sentenced before the Stockport justices on four occasions in the course of 8 months. She had monetary penalties totalling £1334.58, against which she had apparently paid only £8.

38. On that same occasion the magistrates held a means enquiry in respect of the outstanding fines which had been imposed in February, June and August. They remitted £600 from the June fines. Otherwise they found culpable neglect in respect of all three occasions, and decided to commit Miss Conlon to prison for seven days concurrent, postponed on condition that she paid £4 a week for each, making £12 a week in all. That was in addition to the £4 a week for the fines already imposed on 20th October 1994.

39. On 1st September 1995, in her absence, a warrant of commitment for a term of four days was issued in respect of the June 1994 fines. Miss Conlon and her solicitor appeared before the magistrates on 25th September 1995. By that time the overall picture was as follows:

40. June 1994 £102 (£600 remitted) £103

41. The magistrates, allowing for part payment, issued warrants of commitment for seven days in respect of the October and January fines, and for one day in respect of the February and August fines. The were invited to review the warrant of 1st September 1995 but declined to do so.

42. On the face of the warrants there was a printed statement which said -

43. And it appears to the court that all these methods are inappropriate or unsuccessful).

44. Those too were deleted in the one day cases. It seems that two slightly different forms were used. But in one way or another there was in all cases a space between those two sections of printed words, in which further reasons might have been, but were not, written.

45. In the case stated the magistrates gave more elaborate reasons. On the two points in issue in these proceedings, what they said was this:

46. We did not believe that enquiries for the deduction of fines from the Appellant's income support were appropriate in view of the existing deductions from such benefits at source in respect of other debts.

47. The appellant had attended before the justices at Stockport on six occasions in the course of enforcement proceedings alone since the imposition of the first financial penalties on 18th February 1994. She had completed and signed a form for means enquiry hearings dealing with her financial circumstances. Her circumstances did not appear complicated and we were dealing with an articulate 30 year old woman who, on the evidence presented to us, was not suffering from any mental or physical impediment to the payment of financial penalties. Accordingly, we did not believe that a fine supervision order under Section 88 Magistrates' Courts Act 1980 was appropriate.

48. Miss Conlon was released on bail after she had been in custody for two days.

49. This lady says in her affidavit:

50. I am 47 year old disabled woman living with my husband and 13 year old son. I receive £12.50 Disability Living allowance as a result of my need for extra care and supervision as a result of the stroke I suffered in 1991, and £10.40 per week Child Benefit. I am otherwise totally dependant on my husband who is disabled as a result of mental illness and in receipt of Income Support.

51. The report of the probation service put the weekly income of the household at £142.60, of which Mrs Keenaghan received approximately £72.50 excluding child benefit.

52. The magistrates were sceptical as to the extent of Mrs Keenaghan's disability. In a draft case stated they said:

53. The Justices found that subsequent to her illness which occurred in 1991 the defendant had made some measure of recovery. She had at times engaged in work. She walked into the Court and stood unaided to give her evidence. She answered questions put to her in a lucid manner.

54. Mrs Keenaghan was convicted by the Newark justices on 21st September 1995, in her absence, of using a television set without a licence. She was fined £180 and £35 costs, to be paid at £5 per week. On 23rd November, when no payment had been made, she appeared before a Fine Arrears Court. Again payment at £5 a week was ordered. A reminder letter was sent on 11th December. On 1st February 1996 she again appeared before the Fines Arrears Court after a warrant had been issued. She was committed to prison for 14 days, suspended as long as she paid the outstanding amount at £5 per week.

55. On 4th April she again appeared before the Fine Arrears Court. The commitment was again suspended provided that payment was made of £5 per week. One payment of £5 was made on 16th April. There was a further appearance on 20th June, when there was an adjournment for a means enquiry report to be prepared. Eventually Mrs Keenaghan's case was considered by the magistrates on 4th July 1996. They found that there had been culpable neglect, and sentenced her to imprisonment for 10 days. It would seem that only £10 in all had been paid off the fine and costs totalling £215.

56. Again there was printed wording on the warrant of commitment, stating that the other methods of enforcement had been considered or tried, and that they were inappropriate or unsuccessful. To that was added in manuscript -

57. That would appear to be a reference to a proforma document which was at some stage partly completed in manuscript for the most part by circling a choice offered in print. As so completed it appears to say:

58. The justices are satisfied default is due to CULPABLE NEGLECT because:- The defendant has had an income and has failed to use that income to pay the fine & persistent history of failure to pay. The justices have considered or tried all methods of enforcement and it appears that the following orders are inappropriate or likely to be unsuccessful

59. DISTRESS WARRANT Insufficient Assets

60. MPSO Capable of arranging own finances

61. On the day after she was committed by the justices, Mrs Keenaghan was released on bail by Owen J, who gave leave to apply for judicial review.

62. In the draft case stated the justices subsequently gave the following additional reasons for rejecting both deduction from income support and a monetary payment supervision order:

63. The justices further found that the amount offered (£5 per week) was "both reasonable and affordable."

64. There were four questions in the case stated, but one was not pursued. Those that remained were as follows:

65. As to question (a), the magistrates in the case stated said:

66. We refused to review the issue of the Commitment Warrant issued by our colleagues on 1st September 1995 in respect of the fines imposed on 28th June 1994.

67. If the suggestion is that the magistrates did not reconsider their colleagues' order of 1st September, I can see no ground for supposing that to be the case; if that there were no lawful grounds for that order to be upheld, I do not agree. In the outline argument for Miss Conlon, the only or main point was that if the warrant of 25th September is successfully challenged, the warrant of 1st September is also invalid.

68. Questions (b) and (d) relate to the magistrates' decision on 25th September. It is said that they should have further postponed the issue of commitment warrants. One of the facts relied on is that Miss Conlon had by that date paid £472 towards the substantial total of fines imposed upon her. If I were faced with the magistrates' task, I would have wanted to know when the payments totalling that amount were made, and with what regularity. Might there have been evidence of honest effort which would justify remission of the outstanding balance? We have no material on which we could say that the justices erred in that respect.

69. As for their reasons, already quoted, for rejecting a money payment supervision order, I do not see that they were unlawful.

70. Their reason for rejecting deduction from income support was that it was inappropriate in view of the existing deductions in respect of other debts. According to the case stated, Miss Conlon told the court that she was already suffering deductions from income support for arrears of electricity and community charge. We do not know what those arrears were.

71. The Fines (Deductions from Income Support) Regulations 1992 provide that there is sufficient entitlement to income support to enable the Secretary of State to make a deduction if (i) the amount payable by way of income support after any such deduction is not less than 10 pence, and (ii) the aggregate amount payable under those regulations and under seven provisions of three other sets of regulations does not exceed three times 5 per cent of the personal allowance for a single claimant aged 25 or over. Are the magistrates at a Fine Arrears Court, when they have many cases to consider, to be expected to search through that kind of legislation for an answer?

72. We were referred to other regulations which were said to show that "there was no impediment to the appellant's fine being discharged by such deductions." The result was inconclusive. It seems to me that the magistrates, with their experience, expected that that would be the case, for they said that they did not believe that enquiries were appropriate. After all, direct deductions are only a benefit to the offender if (i) the magistrates are already determined to order payment at so much per week, and (ii) the offender is willing to pay but incompetent at managing money. That was not the picture of Miss Conlon which the magistrates drew in a passage that I have already quoted.

73. In her case I would answer the surviving questions

74. The grounds of this application for judicial review are that (i) the magistrates erred in finding culpable neglect;

75. My conclusions already stated on the law are sufficient to reject the submission that the magistrates did not comply with section 82(6). For the rest, what evidently impressed the magistrates was that Mrs Keenaghan "both in the means enquiry report and in the face of the court, offered to pay at the rate of £5.00 per week" (draft case stated). That is sufficient ground for rejecting deductions from income support (which could not have amounted to £5 a week), and for rejecting a postponed warrant, and for disagreeing with the probation officer. Subject to one point, there was nothing irrational or unlawful in what they did; they were fully entitled to find culpable neglect.

76. That one point is the rejection of a fines supervision order. The probation officer said this:

77. Given Mrs Keenaghan's circumstances, I feel a Money Payment Supervision Order would not be appropriate as she strikes me as someone who is genuinely struggling to maintain a household on a very low budget. It would be difficult for a Probation Officer to suggest how she can regularly find £10 a fortnight over a period of 42 weeks.

78. The magistrates evidently rejected the reasoning which led the probation officer to that conclusion; they must have found that Mrs Keenaghan could pay £10 per fortnight, because she had offered to do so. But one of their reasons for rejecting a supervision order was that the probation service considered it not appropriate. It was illogical to rely on that reason, since they had rejected the underlying facts which led the probation officer to put it forward.

79. We should in my view be slow to criticize magistrates' reasons, particularly when they had to be formulated weeks or months after the magistrates' enquiry took place. But anything which is illogical is less easily forgiven. In the cold light of day it is all too clear that one of the magistrates' reasons was indeed illogical. In my judgment we should remit the case to the magistrates to reconsider, whether they still reject the notion of a money payment supervision order.

80. What troubles me about these cases is not the remedies which the magistrates had to choose from as means of enforcement, but the size of the fines which those on income support were expected to pay out of resources that are said to be only sufficient for the necessities of life. I can see that over a short period of time the money provided as income support may be sufficient for paying a small but regular amount towards fines. But as everybody knows there are contingencies which occur and will strain a tight budget to breaking point. That, I think, is what the probation officer had in mind when he spoke of regularly finding £10 a fortnight over a period of 42 weeks. The fact that, in an ordinary week, there will be £5 available does not by any means lead to the conclusion that there will be no difficulty in every week of the year. I would prefer a solution where fines on those of limited means were lesser in amount - or at least lesser in total - so that they could be paid in a matter of weeks, and where regular payment was firmly enforced. But that is another story from what we are required to decide to-day. The Crime (Sentences) Bill, now before Parliament, proposes a community service order instead of a fine in the case of those with limited means who have defaulted in the past. It would also allow the magistrates to impose a community service order as a penalty for fine default.

81. MR WISE: My Lords, I have had the opportunity to consider the reasoned judgment which has been handed down, and a number of matters do arise.

82. LORD JUSTICE STAUGHTON: Before you get to that there is one clerical error at page 14, last line by one. There is a dollar there, it should be a pound.

83. MR WISE: It is apparent, having considered your Lordships' judgment, that a difference of approach has developed between differently constituted courts.

84. MR WISE: In particular the Divisional Court in the case of ex parte Lilly. Your Lordship' will recall that this is a case on which the applicants relied on most heavily. There was a two member court, Curr and Farquarson LJJ . It is clear in that case that a very different approach was taken to that of your Lordships. Also, in a more recent case of ex parte Cawley, to which your Lordship has referred in the judgments, and in particular the judgment of Lord Justice Simon Brown.

85. In particular, may I remind your Lordships of the passage in Lilly on which I relied on most heavily in argument. I do not know if your Lordships still have a copy.

86. LORD JUSTICE STAUGHTON: Were they reported or do we have....

87. MR WISE: It is a short passage if I may read it.

88. LORD JUSTICE STAUGHTON: What did that say?

89. MR WISE: It needs to be emphasised. This is the penultimate page, the penultimate page of Farquarson's judgment.

90. That necessarily included a procedure as to what property or other earnings he might have. The presumption therefore in that court, and that was a judgment made in 1987 so some years ago, was that the a non-custodial sentence would be appropriate in fines enforcement cases. That approach was adopted by Simon Brown LJ in the Cawley case. If I can just remind your Lordships of the opening comments of Simon Brown LJ, this case did concern those committed under the age of 21, he nevertheless makes general comments on fine defaults generally. He begins his judgment, this is ex parte Cawley [1996] 2 WLR, 684:

91. Of course, your Lordships have seen the rest of the judgment and how he considers the detailed statutory provisions that your Lordships referred to in the judgment. It therefore follows that the presumption in Lilly and in Cawley is that a non-custodial sentence will be appropriate where one may be passed.

92. In the present case it is clear that non-custodial alternatives were available to the justices, but those alternatives have been devalued in your Lordships' judgment to not have been the appropriate sanctions against the applicants in these two cases. So clearly there is a difference of emphasis between your Lordships' judgment and those of the earlier cases. But of course all three cases are Divisional Court cases.

93. The application this morning therefore, is that there is a difference of approach that should be considered by the House of Lords. Your Lordships have quite properly recognised, at the outset of the judgment, the scale of the issues which arise in this case. Some hundred and/or so similar cases in the Crown Office lists ----

94. LORD JUSTICE STAUGHTON: In order for this to reach the House of Lords we have to certify that there is a point of law of general public importance. Have you got a proposed question?

95. MR WISE: I have taken the liberty of drafting a question. May I pass a copy up to your Lordships ( handed).

96. MR WISE: If the approach were to be as envisaged by this question, in that the Justices are bound to adopt an alternative and to have exhausted all the alternatives before committing to prison, then the sanction of imprisonment would be a last resort. LORD JUSTICE STAUGHTON: As the question is stated, I can see it is very arguable that we did not agree with it. If they were not exhausted but were considered, that would be the law in our view. MR WISE: Quite so my Lord, that is a ----

97. LORD JUSTICE STAUGHTON: That happens to be what the statute says, which is something to be said for it.

98. MR WISE: But nevertheless, if one considers that imprisonment should be a last resort, then it must necessarily follow that the alternatives must be exhausted. But clearly one does not argue the merits of the issues this morning, that would be entirely inappropriate. I merely put it before your Lordships that there is a difference of approach. The issue is a massive one, 22,500 per year sent to prison.

99. LORD JUSTICE STAUGHTON: It is now down to half that; I do not know if that is right.

100. MR WISE: May I impress upon your Lordships that the decrease in the numbers committed to prison has been a result of the judgment of Simon Brown LJ in Cawley.

101. LORD JUSTICE STAUGHTON: It has happened very rapidly.

102. MR WISE: Your Lordships have seen the guidance offered by the Lord Chancellor's Department. That the Lord Chancellor's Department interpreted Cawley in a broad way to encompass those over the age of 21. As your Lordship has correctly identified they have taken a rather more ----

103. LORD JUSTICE STAUGHTON: This month's Criminal Law Review editorial has this to say at page 850, it says:

104. On our view, the model pronouncement for sentencers goes rather further than that.

105. MR WISE: One must concede that your Lordship is entirely correct in that. Crawley was totally confined to those under the age of 21. We have now moved on to the more general cases over the age of 21.

106. LORD JUSTICE STAUGHTON: Yes well, I see what you say. But that is the question you say that the statute requires: every other possibility to be exhausted.

107. MR WISE: Quite so my Lord. A further point in favour of ventilating this matter before their Lordship's House, is that of course the issues would be fully argued. As your Lordships identified, unfortunately in the present case there was only argument from the one side.

108. LORD JUSTICE STAUGHTON: I cannot see that that is a point in your favour.

109. MR WISE: It is an unsatisfactory situation in public policy terms. In any event, it is submitted that it is entirely appropriate, given the importance of these issues, that full argument takes place before their Lordships' House. If I were to be given the opportunity to ventilate the opportunity before their Lordships' House I would need a certificate and leave to appeal to the House of Lords.

110. LORD JUSTICE STAUGHTON: It is very unusual for their Lordships to enter upon matters of sentencing is it not?

111. MR WISE: Well my Lords, there are a number of magistrate court cases which have come before the House of Lords, and there was an oblique reference in number of those towards the skeleton arguments in these cases: Re Hamilton and Re Wilson. There are a number of cases in recent years where their Lordships' House have considered detailed provisions of the Magistrates Courts Act none of which, it is submitted, have such general application as the present matter.

112. LORD JUSTICE STAUGHTON: Yes thank you. Well, the question posed by Mr Wise is certainly a question of general public importance and we are prepared to certify to that effect. On the other hand, it does seem at first sight to go a good deal further than the law, and we do not feel that it is for us to grant leave to appeal.

113. MR WISE: I am much obliged for that my Lord. May I also have an order for legal aid taxation in respect of both cases?

114. MR JUSTICE TUCKER: Presumably the application for leave relates only to one of these.

115. MR WISE: My Lord no. The application to the House of Lords is in respect of both cases. The issues of alternatives is nevertheless -- remains a live issue in the case of Keenaghan and as it is remitted to the Magistrates it is a practical issue for the Justices to decide.