England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: The applicant (Agnes Mort) seeks judicial review of two decisions made by the Corby Magistrates' Court:

2. The applicant bases her challenge on two grounds, one general and one directed to the facts of this particular case. The general ground is that the fine enforcement procedure followed in this case and many similar cases is unfair and contrary to the rules of natural justice. It is further said, with reference to Article 6 of the European Convention on Human Rights, that the procedure denied the applicant a fair hearing by an independent and impartial tribunal established by law. The particular challenge is based on the conduct of the clerk to the justices who officiated on 24 July 1997, the inquiry conducted and the decision reached.

3. On 10 November 1995 the applicant appeared in the Corby Magistrates' Court in answer to a summons alleging that she had used television apparatus without a licence. She pleaded guilty and was fined £100. She was also ordered to pay £45 in costs. The total of £145 was "a sum adjudged to be paid" under section 150(3) of the Magistrates' Courts Act 1980. Having taken account of her means, the court exercised its power under section 75(1) of the Magistrates' Courts Act 1980 to order that the sum be paid at the rate of £5 per week. By Rule 46(1) of the Magistrates' Courts Rules 1981 the clerk of the court was required to serve notice on the applicant informing her of the amount to be paid, and the amount of the instalments, and the time and place at which payment was to be made; it is accepted that such notice was given. By Rule 48(1) of the same rules, the instalments were to be paid to the clerk of the court.

4. On 28 November 1995 the applicant paid one instalment of £5. By section 139 of the Magistrates' Courts Act 1980, section 61 of the Justices of the Peace Act 1979 (now section 60 of the Justices of the Peace Act 1997) and regulation 4 of the Justices' Clerks (Accounts) Regulations 1973 it was the duty of the justices' clerk on receiving payment to pay costs to the prosecutor and fines to the Lord Chancellor.

5. The applicant defaulted in making further payments and a reminder was sent to her on 11 December 1995. The applicant continued to default and on 3 January 1996 a summons was issued requiring her to attend before the court on 24 January 1996. At this stage the options open to the court to enforce payment were closely defined by statute. Section 75(3) of the 1980 Act provides:

6. Section 76 of the 1980 Act provides:

7. Section 82(3) of the 1980 Act, however, provides:

8. In this case, the court had not issued a warrant of commitment on the occasion of the applicant's conviction and had not fixed a term of imprisonment in default of payment and had not conducted an inquiry into the applicant's means in her presence on at least one occasion. It was accordingly not open to the court to issue a warrant of commitment at that stage. The court accordingly had resort, quite properly, to section 83(1)(a) of the Act which provides:

9. Despite the issue of the summons, the applicant failed to attend the court on 24 January 1996, the date notified in the summons, she having made no further payment in the meantime. The court accordingly issued a warrant (backed for bail) for her arrest, as authorised under section 83(1)(b) of the Act, in order to bring her before the court for the purpose of enabling inquiry to be made under section 82 into her means. On 7 February 1996 a letter was written by the court to the applicant requiring her to attend at her local police station either to pay the balance of the sum due from her or to have the warrant executed upon her. She was told that she could discuss the matter with the court enforcement office if she had any questions. The warrant was duly executed and the applicant was bailed to appear before the court on 13 March 1996.

10. On 13 March 1996 the applicant attended at court and a means inquiry was conducted. According to an affidavit sworn by Mr Neil Clarke, the clerk to the Northamptonshire Justices, all possible methods of enforcement were considered by the court on that occasion. The court found that the applicant had wilfully refused to pay and ordered that she be committed to prison for 7 days, but suspended such commitment on condition that the applicant paid the sum due at the rate of £5 per week, the first payment to be received by 20 March 1996. In ordering committal, the court acted under section 82(4)(b) of the Act (quoted below). In suspending the warrant of commitment, the court exercised its power under section 77(2) of the 1980 Act:

11. No further payments were made, and further arrears accrued. A commitment warrant notice was sent to the applicant requiring her to attend the court on 1 May 1996 to show cause why she should not be committed to prison in accordance with the order of 13 March 1996. The notice informed her that she could appear in person, be represented by a solicitor, or make representations. On 1 May 1996 the applicant did not appear before the court, no representative appeared on her behalf and she made no written representations. Six instalments were now overdue since the order of 13 March, and the court ordered that the applicant be committed to prison for 7 days. Effect was therefore given to the order made on 13 March. By section 79 of the 1980 Act, the order would cease to have effect if and when the outstanding balance of £140 was paid.

12. On 2 September 1996 the warrant for arrest of the applicant had not been executed, and no further payments had been received. The court then considered the case of R v Oldham Justices ex parte Cawley [1997] QB 1, and decided to review the decision made on 13 March 1996. A summons was accordingly issued requiring the applicant to attend court on 25 September 1996. She did not attend court on that date, but the court reviewed the case in her absence, cancelled the period of imprisonment ordered to be served and decided to conduct a further means inquiry to satisfy itself that it would be proper to take further enforcement proceedings. A warrant, not backed for bail, was accordingly issued to secure her attendance at court under section 83 (1)(b) of the 1980 Act.

13. At this point in the history, the applicant was convicted for a second time. On 27 September 1996 she was again convicted of using television apparatus without a licence and was fined £120 with an order that she pay £45 costs. She did not attend court on this occasion, and in the absence of any information about her means was ordered to pay the sum in full by 25 October 1996. As on the earlier occasion, it appears that she received notice under Rule 46 of the Magistrates' Courts Rules and the sum was again payable to the clerk of the court. She failed to make any payment, and a reminder was sent to her on 4 November 1996. Still no payment was made. The court was again bound by the restriction in 82(3) of the Act, and accordingly exercised its power under section 83(1)(a) to issue a summons requiring the applicant to attend before the court on 4 December 1996. On that date the applicant, having failed to make any payments, also failed to attend the court and a warrant for her arrest, not backed for bail, was again issued under section 83(1)(b) of the Act.

14. The applicant was now the subject of two orders, both comprising a fine and costs, one made on 10 November 1995 and the second on 27 September 1996. On 3 February 1997, the warrant issued on 25 September 1996 to secure the applicant's attendance in relation to the first order having not been executed, the court decided to take steps to write off the whole sum due from her under the first order. It seems that this was an administrative act, not an exercise of the power to remit under section 85 of the 1980 Act.

15. The warrant ordered to be issued on 4 December 1996 to secure the applicant's attendance at court in relation to the second financial penalty was executed and the applicant appeared before the court on 10 March 1997. The court then considered the financial orders made on both of the earlier occasions. It ordered that the fine and costs imposed on 10 November 1995 and considered for writing-off on 3 February 1997 should be re-instated. It ordered that the sum outstanding under the first order should be consolidated with the sum due under the second order and it conducted a means inquiry as required by section 82(3)(b) of the 1980 Act. The applicant gave evidence of her health and circumstances. The sum outstanding under both orders, £305 in total, was ordered to be paid in instalments of £5 per week beginning from 24 March 1997.

16. The applicant was sent credit transfer slips for ease of payment, and on 2 April 1997, when two instalments were overdue and unpaid, a reminder was sent. On 8 April and 15 April 1997 instalments, each of £5, were paid by the applicant. Thereafter no payments were made, and the applicant made no request for further time to pay. On 30 April 1997 a further summons was issued under section 83(1)(a) of the 1980 Act requiring her to attend the court on 30 May 1997. On that date the applicant, having made no further payments, failed to attend at court. A warrant for her arrest, not backed for bail, was then issued under section 83(1)(b) of the Act.

17. The applicant was arrested under the warrant and brought before the court on 24 July 1997. An inquiry into her means was then conducted under section 82(3)(b) of the Act. Of the total sum of £310 originally ordered to be paid, £295 was still outstanding. The applicant gave evidence on oath. She testified that she was an unemployed single parent with one son aged 11. She received £79 per week from the Department of Social Security and Child Benefit of £17 per week. She had just paid rent arrears of £400. She said that she paid £35 per week for food, £10 for fuel, and had no travel expenses. She received her benefit after deduction of the sum due for rent.

18. The court found the conditions in section 82(4)(b)(i) and (ii) to be satisfied and committed the applicant to prison for 14 days but suspended such commitment provided the applicant paid instalments of £7 per week, the first instalment to be received by 7 August 1997. The power to commit, on this occasion as on 13 March 1996, is found in section 82(4) of the 1980 Act which provides:

19. On 13 March 1996 the finding was of wilful refusal; on 24 July 1997, culpable neglect. Section 82(4A) of the Act provides:

20. By 28 August 1997 no further payment had been made. Arrears of £28 had accrued since 24 July 1997 and no explanation or request for further time had been received from the applicant. A further commitment warrant notice was sent to the applicant requiring her to show cause to the court on 19 September 1997 why she should not be committed to prison in accordance with the order of 24 July. She was again informed that she could attend the court in person, or be represented by a solicitor, or make written representations. On 19 September 1997 the applicant failed to appear at court, no solicitor appeared on her behalf and no written representations were received from her. By this time six payments should have been made under the order of 24 July but no payment had been made. In the absence of compliance or any reason for non-compliance with the order of 24 July, the court ordered that the applicant be committed to prison for 14 days under that order unless the balance of £295 were paid. On 20 October 1997 the warrant was executed. Two days later, on 22 October 1997, leave to move for judicial review of the court's decision was granted and the applicant was released on bail.

21. A fine is the penalty most commonly imposed on those convicted of criminal offences in England and Wales. As a penalty it has proved to be effective. It has the additional advantages to the state of contributing to the public revenue and being relatively inexpensive to administer. It has the advantage to the offender (in a case where imprisonment is an available penalty for the offence, which in this case it was not) of imposing no fetter on individual liberty. But the effectiveness of the fine as a penalty of course depends on its credibility, and it loses credibility if payment is not enforced in the minority of cases where the offender does not, without more, comply with the order of the court. In this country, as is evident from the legislative provisions of the 1980 Act referred to in the course of the narrative, imprisonment is available as a sanction to enforce payment. But it is very plain, as counsel for the applicant rightly urged, that imprisonment is the ultimate resort.

22. It is a cardinal rule of sentencing practice that an offender should not be ordered to pay a fine which it is beyond the offender's means to pay within a reasonable period. If the offender cannot pay the whole sum at once, provision may be made for giving time to pay or for ordering payment by instalments over a period (section 75 of the 1980 Act). The court has power, if so advised, thereafter to extend time or vary the amount or timing of such instalments (section 85A). If the offender's circumstances change, the whole or any part of the fine may be remitted (section 85). In a case such as the present, the offender is not to be committed unless he or she has had clear written notice of the obligation (Rule 46), and the court has inquired into the offender's means in his or her presence on at least one occasion and found one or other of the conditions in section 82(4)(a) or (b) to be satisfied. If reliance is placed on the condition in subsection (4)(b), the court is required (in the case of an adult offender) to consider or try the four specified alternative methods of enforcing payment. A warrant of commitment for a default in making payment is not ordinarily to be made unless the offender is present (section 82(5)) and the offender will have the right to be heard. Even if the conditions for making a committal order are satisfied, the implementation of the order may be suspended (section 77) and any order for committal ceases to have effect if and when payment is made (section 79). Even where a warrant has been issued, it is open to the offender if there has been a change of circumstances to apply for a further postponement of the warrant, and the court may in such circumstances order that the warrant shall cease to have effect (section 77(5) and (8)). It is clear from the language of Part III of the 1980 Act and from authority that committal is to be used not by way of punishment -- the court has imposed its punishment by imposing a fine -- but to induce reluctant and recalcitrant offenders to comply with the order of the court.

23. In this process of enforcement the prosecuting authority, responsible for making and proving the original accusation, has no role. It is the court which imposes the financial penalty; it is the clerk of the court who is required to give notice under Rule 46; it is the clerk to whom payment should be made; and it is the clerk who becomes aware if default in payment is made. The process of securing the attendance of an offender for purposes of a means inquiry is not initiated by the laying of an information in accordance with section 1 of the 1980 Act, as when the court is exercising criminal jurisdiction; nor is it initiated by the making of a complaint in accordance with section 51 of the 1980 Act, as when the court is exercising civil jurisdiction; it is initiated by the issue by the court of a summons or warrant under section 83 of the 1980 Act. Mr Clarke in his affidavit describes the ordinary procedure for conducting a means inquiry in Northamptonshire:

24. Counsel for the applicant concentrated her criticism of this procedure on the role of the clerk. There was, she said, no warrant in statute or subordinate legislation for the clerk to assume the role of interrogator. Once he assumed the task of showing wilful refusal or culpable neglect and asked questions directed to such end he abandoned his proper role as neutral, independent, impartial legal adviser to the justices and became an adversarial party, which gave rise to an appearance of bias, an appearance compounded when the clerk then took it upon himself to advise the justices on the facts and the law and on whether the case was proved. Strasbourg authority showed that proceedings of this kind were properly to be regarded as criminal ( Benham v United Kingdom (1996) 22 EHRR 293), and that the concept of culpable neglect was difficult to understand and operate (ibid.). Such authority also showed the need to respect the appearance of justice, the need for equality of arms and the unacceptability of submissions, unfavourable to a party, being made to the court without such party being informed of such submissions and given an opportunity to answer them ( Borgers v Belgium (1991) 15 EHRR 92; Bulut v Austria (1996) 24 EHRR 84; Findlay v United Kingdom (1997) 24 EHRR 221.)

25. Counsel instructed by the Attorney General to assist the court as an amicus submitted that, viewed in the context of domestic law, these proceedings were neither criminal nor civil but sui generis. They were not initiated by information or complaint; there was no prosecutor or complainant; statute provided for an inquiry by the court. In the domestic context this submission is in our view sound. But enforcement proceedings can lead to an order for imprisonment, and that being so it is plain that they must be conducted with the high degree of fairness appropriate to proceedings which may have that serious outcome. We do not regard the categorisation of the proceedings as crucial, although it could be so in a case turning (as this does not) on the precise terms of paragraphs 2 and 3 of Article 6 of the Convention.

26. Section 28 of the Justices of the Peace Act 1979 provided:

27. These provisions are now substantially re-enacted as section 45 (4), (5), (6), and (7)(b) of the Justices of the Peace Act 1997.

28. Authority makes plain that justices' clerks should not in any circumstances adopt a partisan role in the proceedings. In Hobby v Hobby [1954] 1 WLR 1020 at 1025 Sachs J said:

29. It is for a magistrates' court, like any other court, subject to legislative rules and within the bounds of fairness, to determine how its proceedings should be conducted. In R v Consett Justices ex parte Postal Bingo Ltd [1967] 2 QB 9 at 18 Lord Parker CJ said:

30. It would undoubtedly be contrary to ordinary standards of fairness, and also to established practice, if the clerk were to assume an adversarial or partisan role in the conduct of any proceedings, including a means inquiry. There should be no question of his setting out to establish wilful refusal or culpable neglect, and there should be no question of his advising the justices on the facts or communicating his personal opinion of the facts to them. So much is clear beyond argument. But there is in our opinion no objection to a clerk, at the express or implied request of the justices, asking questions of a debtor relevant to his or her means for purposes of a means inquiry. Section 84 of the 1980 Act empowers the court to order a person to furnish such statement of means as the court may require. This is a power which, under the Justices' Clerks Rules 1970, the clerk may exercise on behalf of the court. It would be strange if the clerk were not permitted to elicit by oral questions the material which he is authorised to require in writing on pain of a criminal penalty. Counsel for the applicant initially disclaimed any criticism of the statutory régime prescribed by Part III of the 1980 Act: but that Part provides for an inquiry; an inquiry involves the asking of questions; and counsel submitted that the asking of questions was improper whether conducted by the clerk or the justices. It is not clear who else would or could conduct the questioning, and the Act provides for no intervention by any other party.

31. We reject the applicant's criticism of the general practice which, if conducted in accordance with authority and established practice, involves no unfairness and no danger of bias. On the issue of bias we are in our view, obliged at present to follow the ruling in R v Gough [1993] AC 646 rather than the authority of the European Court of Human Rights if, which we doubt, that leads to a different result. There should be no question of the clerk making submissions unfavourable to the offender, or any submissions to the justices behind the back of the offender. Whether judged by domestic or convention standards, the general practice adopted in Northamptonshire (and no doubt elsewhere) in our view satisfies the high standard of fairness appropriate to a proceeding which may lead to imprisonment.

32. For purposes of this hearing the applicant has sworn an affidavit in which she deposes:

33. Mr Howard Taylor, the qualified and experienced clerk on duty on 24 July 1997, confirms in his affidavit that the general conduct of the inquiry into the applicant's means on that date was carried out in accordance with the practice described by Mr Clarke. He continues:

34. The making of an order that a fine be deducted from benefit is not one of the alternative methods of enforcing payment which a court is required to consider or try under section 82(4A) of the 1980 Act. It is, however, an appropriate course for the court to consider where an offender is in receipt of income support, and a document in the bundle before us confirms the evidence of Mr Taylor that this course was considered on 24 July. The maximum sum which could be recovered from the applicant under the Fines (Deductions from Income Support) Regulations 1992 was £2.40 per week, and this explains the court's rejection of this course in the case of the applicant who, the justices found, could afford to pay larger instalments than were recoverable by this means.

35. Counsel for the applicant strongly criticised the conduct of the clerk in questioning the applicant on 24 July 1997 and in advising the justices. Particular complaint was made of his comment that the applicant had chosen to pay off rent arrears in preference to payment of her outstanding fines. There is nothing in the evidence in our opinion to suggest that the clerk exceeded the proper bounds of his role or disregarded the constraints by which he was bound. It does not appear (and the applicant does not claim) that she mentioned her arrears of rent at the means inquiry conducted on 10 March 1997; nor, despite abundant opportunity to do so, had she drawn these to the attention of the court at any other time, or sought an extension of time or variation of her instalment schedule in order to enable her to meet these arrears. It is quite unclear over what period or at what rate these arrears were cleared. It did indeed appear that the applicant had, without reference to the court, chosen to pay her rent arrears in preference to the fine, but if that was not so it was open to her to correct that suggestion.

36. Complaint was made that no full inquiry was conducted. If it had been, counsel argues, further details of the applicant's expenditure would have been forthcoming. It is clear, counsel suggests, that the applicant must have had expenses in addition to the cost of food and fuel and her rent (already deducted). This is indeed so. But the figures which she gave the court left over £50 per week unaccounted for, and if she wished to show that the financial demands upon her left her with less than £7 per week to meet the instalments which the justices ordered, it was plainly incumbent upon her to give some account of where the money went. The information could only come from her. The whole purpose of the inquiry was to enable her to inform the court of her means, as she must by this stage have fully appreciated. There is nothing to suggest, and the applicant does not claim, that she was denied a fair opportunity to tell the court anything she wanted.

37. It was suggested that the justices' finding of culpable neglect was perverse. That is a bold submission. There can be no doubt that the applicant neglected to pay. Whether that neglect was to be regarded as culpable was a matter squarely within the judgment of the justices. The justices might no doubt have declined to conclude that the neglect was culpable. But given the history of these proceedings, and on the material now before us, it is in our judgment impossible to stigmatise this decision as irrational.

38. It is very hard to see what criticism can be made of the justices' decision on 19 September 1997. The applicant failed to appear, and made no representation of any kind. The court was not obliged to conduct a further means inquiry. There was nothing to suggest a change of circumstances.

39. We refuse this application. This is the judgment of the court.

40. MISS APPLEBY: My Lord, may we mention three matters: firstly, points of law to be certified; secondly, leave; and thirdly, bail. My Lord, we have taken the opportunity to hand up points of law that we are asking to be certified. May we go through those briefly?

41. THE LORD CHIEF JUSTICE: Where does an appeal lie from this decision?

42. MISS APPLEBY: The House of Lords.

43. MISS APPLEBY: My Lord, in the second volume of the White Book at page 1687, and it is paragraph 16-203, 2.1:

44. THE LORD CHIEF JUSTICE: Is this a criminal cause or matter?

45. MISS APPLEBY: My Lord, we have argued that it has all the characteristics of a criminal cause or matter. My Lord, in the judgment we have noticed that your Lordships have said that deciding whether or not it is criminal is not crucial to the case. But if one loses all three points this lady goes to prison.

46. THE LORD CHIEF JUSTICE: But that is so if somebody disobeys an order of the court. I am simply anxious to get the right answer, Miss Appleby. Mr Turner, have you given thought to this matter?

47. MR TURNER: My Lord, I have not considered it until your Lordship just raised it, but my instinctive reaction is to support my friend and submit that it is a criminal cause or matter. I remind myself of the decision of your Lordship last year in Cuoghi about a criminal cause or matter. These proceedings arise, albeit indirectly, from what were on any view of things criminal proceedings, the proceedings relating to the non-payment of the television licence, and so arising in that way, albeit indirectly, my instinctive reaction would be to submit to your Lordships that it is indeed a criminal cause or matter because it relates to a subject which is in the criminal jurisdiction rather than the civil jurisdiction. Cuoghi, your Lordship may recall, was the extradition with the habeas corpus. It was a double step down from direct criminal proceedings.

48. THE LORD CHIEF JUSTICE: Yes, I do remember. But there we had a clear ruling established over many years that extradition proceedings were criminal.

49. THE LORD CHIEF JUSTICE: And so the question there was, as it were: was an ancillary application in the course of what were accepted as being criminal proceedings to be similarly typecast.

50. MR TURNER: That is right, although there were two steps down because it was an application for habeas corpus which arose out of the extradition application, and then within the habeas corpus there was an application for the issue of a letter of request, and it related to the question whether the application for the issue of the letter of request was a criminal cause or matter. But your Lordship is right that it was, albeit indirectly, concerned with the on-going extradition procedures which were themselves related to criminal procedures abroad.

51. THE LORD CHIEF JUSTICE: In the course of the argument in this case you were contending, whatever the position under the Convention, that these were civil proceedings, were you not?

52. MR TURNER: No, my Lord, I contended that they were sui generis --

53. MR TURNER: -- and indeed I actually referred I think in my skeleton argument to Cuoghi in saying that it may be that the proceedings here would be characterised as a criminal cause or matter and referred to Cuoghi in that regard.

54. THE LORD CHIEF JUSTICE: You correct my recollection. Yes. Thank you. Miss Appleby, I do not know if there is anything else you were going to refer us to on this?

55. MISS APPLEBY: My Lord, no, only to reiterate the points my learned friend has made, that this is criminal in its source and at the end of the day it has all the characteristics -- it does not appear that it would fall within a straight civil matter.

56. THE LORD CHIEF JUSTICE: Let us have a look at your points.

57. MISS APPLEBY: My Lord, the first question is:

58. My Lord, for that we look at pages 14 and 15 of the judgment. My Lord, having looked at the submissions we make on behalf of the applicant, your Lordship considered the submissions made by the amicus and you say:

59. Then your Lordship says:

60. My Lord, we respectfully submit that it is crucial in this case -- because this case was concerned with Article 6(1) of the Convention, and Article 6(1) cannot be distinguished from paragraphs (2) and (3) in relation to the distinction that your Lordships have made at pp 14-15, because in Article 6 it is stated in the determination of the civil rights and obligations and -- my Lord, this was in the bundle at 21 -- in any criminal charge against him anyone is entitled to a fair and public hearing, and then it goes on to provide that the judgment should be pronounced publicly.

61. My Lord, we would respectfully submit there that it is necessary in Article 6(1) to determine whether or not the proceedings were civil or criminal because it requires one to look at them and requires a very high standard of proof when one is looking at the proceedings. My Lord, we submit one cannot therefore distinguish the paragraphs. We also stress generally in that context that part of the judgment where your Lordships indicate that it is important -- and this is seen on page 17:

62. My Lord, all those points we respectfully submit indicate that there has to be a very high standard in relation to the appearance of a fair and impartial trial. My Lord, the clerk in this case was not only conducting a means inquiry, which as your Lordship stated in the judgment could have been dealt with by filling out a form, but he was the leader asking the questions on culpability. The practice has grown up that he leads, in effect, the court, and if the court thinks there is any other questions then they will ask those questions. But, my Lord, it is in a similar position, we respectfully submit, of being the leader with the court sitting behind him.

63. THE LORD CHIEF JUSTICE: We are concentrating on your three proposed questions --

64. MISS APPLEBY: Yes, that is the second part of why we say we should be given leave in relation to (1).

65. My Lord, question (2) reads:

66. Your Lordships at pages 22 and 23 state, in effect, that the burden is on the applicant to show the court why she is not guilty of wilful refusal or culpable neglect. My Lord, I respectfully submit that that is altering the burden of proof. That is not the practice that should operate in these courts. Nowhere has the burden altered to place it on the applicant. This is why the questioning is so important to operate both sides. If you start from the wrong premise you never get to a fair stance.

67. My Lord, the last question relates to the Fines (Deduction from Income Support) Regulations 1992. We raise that because, as your Lordship recognises, imprisonment is a very, very last resort for several reasons: first, the set-off is a fine, not imprisonment; secondly, imprisonment does not get the money into people's pockets, but costs the country a lot of money in its place. My Lord, for that reason we respectfully submit that the court has clearly to show beyond doubt that it has considered this Act. Indeed, if they had operated it in this case we probably would not be here now. My Lord, that is the justification for the three questions we raise, and we respectfully submit that they are points that should be certified and points on which we would ask for leave.

68. THE LORD CHIEF JUSTICE: Thank you. Mr Turner, I do not know if you can assist us with any submissions on these three proposed questions?

69. MR TURNER: I think it is very much for your Lordship. The first ground I simply draw to your Lordship's attention is this. The question seems to us to suggest that your Lordships accept that there is an appearance of lack of independence, which your Lordships did not accept in the judgment. "Whether the fine enforcement procedure in the magistrates' court is unfair and contrary to the rules of natural justice because the role played by the clerk in those proceedings gives rise to the appearance of [bias]." If one is to certify the question, it ought, we suggest, to be in the nature of: Does the role of the clerk give rise as to an appearance of lack of independence and impartiality? And if it does so, then whether the fine enforcement procedure is unfair and contrary to the rules of natural justice as a result.

70. THE LORD CHIEF JUSTICE: Yes. Any comment on (2)?

71. MR TURNER: Nothing to say on (2), my Lord. On (3) we submit that it is obvious that as a matter of law one is not required because one is not required by the statute, whereas there are other methods which are required. Of course in this case the justices did in any event consider that matter. It does not really arise on the facts in this case.

72. THE LORD CHIEF JUSTICE: Thank you. Anything more, Miss Appleby?

73. THE LORD CHIEF JUSTICE: Miss Appleby, we have got residual doubts in our minds as to whether this is a criminal cause or matter. We are not saying it is not, but we are certainly not satisfied that it is. We have, however, been discussing it on the assumption that you are right and that Mr Turner's gut instinct is right in saying that it is a criminal cause or matter, and therefore we have considered whether we should certify that there is a point of law of general public importance and whether or not we grant leave. It does seem to us that there is not a point of law of general public importance which we should certify for the House of Lords because it seems to us that the English statute is quite clear and the English statute is as much binding on the House of Lords as it is on us. Accordingly we think that your recourse, if you have one, lies in Europe and not within the domestic jurisdiction in any event until the Convention is incorporated, which may or may not be distant, but the time at which the Convention comes into effect, even when incorporated, is some time distant. So having given the matter some thought, we consider our correct course is not to certify any question and on that basis the question of leave does not arise but you will, of course, have exhausted your domestic remedies for Convention purposes.

74. MISS APPLEBY: My Lord, there arises the question of bail. Mrs Mort has served two days out of the seven days' imprisonment, and as your Lordships will recall from the hearing, she had to leave her home and she has since been living in a bail hostel, apart from a short period where she was retained on remand in prison for possessing heroin because she is, as your Lordships saw from the papers, a heroin addict.

75. My Lord, my first application is for your Lordships to treat Mrs Mort as having served sufficient of the seven-day period. For that we would argue extenuating circumstances, the extenuating circumstances being as follows. Firstly, an application could have been made whilst she was serving the one month's imprisonment on remand. My solicitor could have lodged an application for sentence to run concurrently with the period of time she remained in prison for the other offence. He did not do that because one was awaiting the hearing of this application and he considered that if he had taken that step then it would have, or could have, prejudiced the application hearing.

76. My Lord, secondly she has had this matter -- and I accept this would happen to most people -- but she has had this matter hanging over her head now for a considerable period of time.

77. THE LORD CHIEF JUSTICE: She can go back to the magistrates' court and ask that court to suspend the warrant of committal, can she not?

78. MISS APPLEBY: My Lord, I believe so. My Lord, the difficulty in relation to that matter so far as the hearing in the magistrates' court is concerned is whether or not the magistrates would find it within their jurisdiction to consider bail when a warrant has been issued.

79. THE LORD CHIEF JUSTICE: There is a provision which precisely deals with that question, I am almost entirely sure.

80. MISS APPLEBY: My Lord, section 77(8) provides that if a warrant of commitment is issued before the hearing of the application the court shall have power to order that the warrant shall cease to have effect, and if the applicant has been arrested in pursuance of it to order that he shall be released but shall only make an order if he is satisfied that the change of circumstances was not put before the court.

81. MISS APPLEBY: My Lord, it seems to be narrow and this lady has actually been in prison for two days of the seven-day sentence.

82. THE LORD CHIEF JUSTICE: Yes, but she is covered by the subsection you have just read, is she not?

83. MISS APPLEBY: My Lord, it is limited to the change of circumstances on which the applicant relies, and the fact that they were not put before the court when it determined whether to issue the warrant.

84. MISS APPLEBY: So all the matters I prayed in aid, namely the fact that it has been delayed because of the hearing in this court would not be capable of being put before the court. She could not put them at the time. It would not fall within the section.

85. LORD JUSTICE AULD: What power has this court to make an order of the sort you suggest on an abortive application for judicial review?

86. MISS APPLEBY: My Lords, there are two cases: R v Ipswich Justices, ex parte Horridge in 1993, and R v South Cheshire Justices, ex parte Carol Burton . In each of those cases I am instructed that the Divisional Court (Watkins LJ) in each case considered the sentence that had been passed below and in effect reduced the sentence in the light of the circumstances then before him.

87. THE LORD CHIEF JUSTICE: All we have done is refuse an application for judicial review and refuse to certify.

88. MISS APPLEBY: My Lord, yes, and the natural thing which follows from that is that this lady may now be liable to be arrested and go back to prison for five days.

89. THE LORD CHIEF JUSTICE: But subject to her rights under subsection (8).

90. MISS APPLEBY: My Lord, subject to her rights under subsection (8), but as we have indicated -- I do not want to repeat myself -- that is more limited. As it indicates in the note, there is a change of circumstances. It looks as if her financial position is such that she cannot possibly pay. Alternatively there is a possibility that she could but, my Lord, the magistrates' court could not consider the fact that there has been an application to this court or anything other than the change of circumstances that she failed to put forward at the time. It is really turning the clock back.

91. THE LORD CHIEF JUSTICE: I am afraid, Miss Appleby, we do not make an order.

92. MISS APPLEBY: The last matter is legal aid taxation. May we have legal aid taxation?