England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE ASTILL: This is an application for judicial review of the decision of the York Magistrates to commit the applicant to prison for a total period of 75 days for non-payment of fines.

2. At the date of the committal order the fines position was that £990 was outstanding from a total of £1,120. Fines and costs were imposed on 13th June 1995 for two offences of using a motor vehicle without insurance, £269.58 was imposed on 20th June 1995 for using a vehicle without an excise licence (none of that had been paid); £150 was imposed on 31st July 1995 for three offences of using a motor vehicle without insurance (none of that had been paid) and £336.25 fines and costs imposed on 8th December 1995 for using a vehicle without an excise licence and failing to notify the Secretary of State of the change of ownership (none of that had been paid). The total figure outstanding was, therefore, £1,805.83.

3. On 18th October 1996 a default summons was issued. The applicant failed to attend on the return date of the 4th November and a warrant was issued for her arrest. She appeared before the Magistrates at York on 15th February 1997. She was represented and gave evidence and offered to be made the subject of an Attachment of Earnings Order.

4. Her evidence was that her employer had consented to the making of such an order, that she worked in a fish and chip shop and that her earnings fluctuated between £67 and £180 per week. She said she was in receipt of family credit in the sum of £33 per week and of child benefit in the sum of £32 per week. She said she was married, but her husband did not work and she had four dependent children between the ages of nine months and 13 years. She told the magistrates that she owned a motor car, which was of no significant value, and that she had no assets which could be sold to pay the outstanding fines.

5. The magistrates used a checklist, which had been used at the court since 1996, to enable them to consider non-custodial options. The relevant conclusions they came to were that an Attachment of Earnings Order was not appropriate because of the applicant's fluctuating weekly income and that she was unlikely to cooperate with a fine supervision order in view, presumably, of the history of non-payment.

6. They came to the conclusion in answer to the checklist question: "is there culpable neglect/wilful refusal?" that there was and recorded:

7. They indicated on the proforma that there were no changes of circumstances that would allow for full or part remission. They recorded that there was no alternative to custody.

8. They then announced their decision stating, according to the affidavit of the chairperson of the bench, that they found wilful refusal and culpable neglect and had looked at every possibility. There is an issue between the chairperson and the solicitor representing the applicant, Mr Darwin, about the last part of that announcement. His affidavit evidence is that, having stated that they found culpable neglect, nothing more was said about alternative methods of disposal.

9. The magistrates then imposed prison sentences as follows: 40 days for the fines imposed on 13th May 1995, 14 days consecutive for the fines imposed on 20th June 1995, 7 days consecutive for the fines imposed on 31st July 1995 and 14 days consecutive for the fines imposed on 8th December 1995.

10. The magistrates then issued a warrant of commitment. Mr Southey, in his helpful submissions, referred this court to section 82(6) of the Magistrates' Courts Act 1980 (the Act) which states:

11. Section 82(3) of the Act states:

12. Section 82(4) states:

13. The other methods of enforcing payment which must have been tried or considered are listed in section 82(4A) (inserted by section 61 of the Criminal Justice Act 1988).

14. The first submission that Mr Southey makes is that the magistrates were in breach of their statutory duty imposed by section 82(6) to give reasons for the making of a warrant of committal, because they did not make clear, by the appropriate deletion on the warrant, whether it was issued pursuant to one of the conditions mentioned in subsection (1) or subsection (4) and in particular which of the alternative provisions of subsection (4).

15. Mr Southey has referred the court to R v Oldham Justices ex parte Crawley (1996) 2 WLR 681, and to the passage in the judgment of Staughton LJ which sets out the duty of the magistrates. I have no need to repeat that. That was adopted in the R v Newark Justices ex parte Keenaghan and R v Stockport Justices ex parte Conlon (unreported: CO-2353-96/CO-4049-95) of which a transcript has been provided.

16. Whilst the magistrates did not delete the inappropriate alternative on the warrant itself there was attached to the warrant, as expressed to be so attached on the front page of the warrant, annex (b). It is referred to in the first alternative in the body of warrant. In my judgment the reference to annex (b) in the body of the warrant clearly indicates which of the alternatives, on the face of the warrant, was being relied upon as a ground for the issuing of the warrant.

17. I have no doubt that it would have been more clear had the magistrates deleted the irrelevant condition but, nevertheless, the indication that annex (b) was annexed was, as I have said, a clear indication of the ground upon which they were relying. Accordingly, I would reject this first submission made to us by Mr Southey.

18. Mr Southey raises, as a point of substance, the magistrates' refusal to make an attachment of earnings order on the basis that the applicant's wages fluctuated. He submits that that was wrong because the scheme provided by the Attachment of Earnings Act 1971 allows for fluctuations and, therefore, fluctuation is an irrelevant consideration and cannot be determinate, as it was expressed so to be by the magistrates, in the document explaining their reason for not making such an order.

19. Schedule 3 of the 1971 Attachment of Earnings Order Act provides a scheme of deduction which requires the employer to calculate the amount of money to be deducted from earnings on each payday.

20. Mr Southey submits that fluctuations are not a bar nor even a relevant consideration. The scheme of deductions set out in part (i) of the schedule 3 defines "protected earnings" and goes on to direct the deduction from the wages by an employer if the level of earnings on any payday exceeds the level of protected earnings. It directs that there should be no deduction if the attachable earnings are equal to or less than the protected earnings.

21. That seems to me to take account of the possibility of fluctuation of earnings and certainly expresses it to be no bar to the making of an order. It seems to me that in those circumstances, the magistrates, having founded their decision on the very fact of the fluctuations of wages, misdirected themselves in considering that fluctuation was a bar.

22. The next matter which Mr Southey brings to the attention of this court is that the total sentence imposed exceeded the maximum period that could be imposed pursuant to a single warrant for the total amount of non-payment. The total amount here was, as I have said, £1,805.83 and schedule 4 of the Act provides that the maximum term of imprisonment for the amount exceeding £1,000 but not exceeding £2,000 is 45 days; two days should be deducted for the amount paid. In R v Midhurst Justices ex parte Seymour 147 JPR 266, this court held that if the magistrates wanted to achieve a longer sentence than a particular warrant could carry then they must issue separate warrants to make the sentences consecutive.

23. In view of my opinion that the magistrates misdirected themselves in relation to the making of an attachment earnings order it is not strictly necessary to pass comment upon the sentence of 75 days which the magistrates imposed. Had I been dealing with that particular aspect of this case I would have substituted the term of 43 days, taking into account the principles annunciated in Midhurst Justices ex parte Seymour , but for the reasons I have set out so far as to the failure by the magistrates to consider, on proper grounds, the decision not to make an attachment of earnings order I would quash the order that they made and remit the case to the magistrates to be reheard.

24. LORD JUSTICE PILL: I agree. The justices were faced with an extremely poor payment record especially bearing in mind that the applicant was in employment. There is and can be no challenge to the finding that the default was due to the offender's wilful refusal or culpable neglect under section 82(4)(b)(i) of the Magistrates' Court Act 1980.

25. The criteria in subparagraph (b)(ii) of that section must, however, also be satisfied. The relevant words in that paragraph, on the facts of the case, are whether the justices considered an attachment of earnings order as a means of enforcing payment and whether it appeared to the court that it was inappropriate. That is section 82(4)(b)(ii).

26. The applicant was in employment earning a not insubstantial, though fluctuating, weekly wage. The use of the word "consideration" in the subparagraph may involve not only considering the question when they retire having heard evidence, but in a case where the defendant gives evidence canvassing the point with her. In this case, as the justices found, the applicant said that she was in employment. She gave the figures for her earnings and indicated that her employer would not object to an attachment of earnings order.

27. The justices accept that they did not announce any reason for their decision. Their unannounced reason, as expressed in the document to which Astil J has referred, was that the order would be inappropriate because of fluctuating earnings.

28. It is not immediately obvious why that is a reason for considering such an order inappropriate having regard to the level of earnings involved and also, as Astil J has pointed out, to the provisions in the Schedule to the Attachment of Earnings Act which provide a procedure for dealing with orders in cases of fluctuating earnings.

29. In my judgment having failed to canvass the question further the justices were not entitled to hold, in this case, that the criteria in subparagraph (b)(ii) were satisfied. Having failed to explore the question further with the applicant they could not reasonably make the order which they made.

30. I too would quash the sentence of imprisonment and remit the matter to the justices for further consideration.

31. Is there any further application?

32. MR SOUTHEY: My Lord, my client is legally aided and so with a duty to the Legal Aid Board I ought to ask for costs in the matter and for legal aid taxation.

33. MR SOUTHEY: It would be against the area of justices' committee.

34. MR JUSTICE PILL: The general rule is that when justices do not appear in circumstances such as this that there is no order against them.

35. MR SOUTHEY: I mention that, my Lord, out of an obligation to the Legal Aid Board, I was not necessarily expecting to obtain an order. In any event I would ask for legal aid taxation.

36. MR JUSTICE PILL: Yes, you can certainly have your legal aid taxation direction. Do you request any further directions as to the remitted hearing?

37. MR JUSTICE PILL: Remitted for hearing before a differently constituted bench.