England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6th July 2011

1. THE DEPUTY JUDGE: This is an application for permission to apply for judicial review ordered into court, with the substantive hearing of the judicial review application to take place immediately if permission be granted.
2. The decision under challenge is a decision of the Dartford Magistrates' Court on 14th January of this year to issue a warrant of commitment against the claimant for a term of imprisonment of 90 days in respect of her failure to pay Council Tax. The local authority, Gravesham Borough Council, is served as an interested party. Neither thedefendant nor the interested party has appeared before me. I am very grateful to Mr Wise QC who has taken me through the relevant legislation.
3. In this case the claimant's liability to pay Council Tax is not itself the subject of any dispute. It is clear that there were eight liability orders relevant to the proceedings before the magistrates, relating to years from 2003 to 2009 inclusive at three different addresses. The total amount unpaid was rather over £7,000.
4. The claimant was summonsed to attend at the Magistrates Court. There was, I understand, an earlier attempt which she could not respond to because she was on jury service, and then there is some question about her illness at a later time, but eventually there was a hearing on 14th January. There is a note of what took place at that hearing prepared by the local authority, I and have also seen the clerk's note of the proceedings. Both are rather brief, but both make it clear that the hearing had a number of features which Mr Wise has criticised.
5. The Magistrates were shown a schedule of liability and were told that the liability orders had indeed been served. They were told also about attempts by bailiffs to levy the outstanding attempts by distress and that the bailiffs had not been able to do so. That is an important part of the procedure in these cases.
6. The claimant had been asked outside court what her income and liabilities were and she had filled in a standard form. She made, through her solicitor who was representing her, an offer to pay £20 per week, and some calculations were undertaken as to how long it would take her to pay off £7,000 or so at that rate.
7. The local authority's note makes it clear that it sought the committal of the claimant to prison. That is what the magistrates decided to do: and the claimant was indeed committed to prison for the maximum period of 90 days. I should say that that 90 days began straight away on 14th January 2011, but that the claimant was released from prison by order of Mr Dutton QC, sitting as a deputy judge of this court, on 29th March 2011, by which time she had been in custody for 74 days.
8. The law relating to the enforcement of payments of Council Tax by proceedings in the Magistrates' Court is to be found in regulations and in a considerable body of judicial authority relating not only to Council Tax, but to its predecessors, Community Charge and domestic rates. The starting point is regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992, SI 613/992. The relevant parts are as follows:

"(1) Where a billing authority has sought to levy an amount by distress under regulation 45, the debtor is an individual who has attained the age of 18 years, and the person making the distress reports to the authority that he was unable (for whatever reason) to find any or sufficient goods of the debtor on which to levy the amount, the authority may apply to a magistrates' court for the issue of a warrant committing the debtor to prison.

(2) On such application being made the court shall (in the debtor's presence) inquire as to his means and inquire whether the failure to pay which has led to the application is due to his wilful refusal or culpable neglect.

(3) If (and only if) the court is of the opinion that his failure is due to his wilful refusal or culpable neglect it may if it thinks fit -

(a) issue a warrant of commitment against the debtor, or

(b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just."

The legislation goes on to say at regulation 47(7) that the maximum period of time is three months.

9. The reference in the first part of regulation 47(1) to "the amount" is an amount which has been the subject of a liability order. The authorities are clear that that means that a Magistrates' Court making the enquiry required by regulation 47 must treat each liability order, that is to say in present circumstances each year of liability, separately. If any authority is required for that, it can be readily found in the judgment of Owen J in R v Leeds Justices ex parte Kennett (5th April 1995), which has been cited in a number of subsequent cases, most notably for present purposes by King J in R(Wandless) v Halifax Magistrates' Court and Calderdale Metropolitan Borough Council [2009] EWCA 1857 Admin, a judgment which I have found of considerable assistance because it collects together a number of the authorities on various areas of the law relating to enforcement of this sort.
10. It is, in my judgment, absolutely clear from the notes which I have seen that there was no separate enquiry by the Magistrates in the present case into the circumstances relevant under regulation 47 for each of the separate years of liability. As Owen J said in the Kennett case, that is, as he put it, "fatal to the decision" of the Justices.
11. Secondly, the requirement is that in respect of each amount there be an inquiry as to means. So far as the present proceedings were concerned, it is clear that there was something of an enquiry as to means, but it appears to me to have been so hopelessly inadequate as not to meet the requirements of the regulations. It is true that before she went into court the claimant was invited to fill in the standard form, but, as she has pointed out in her witness statement, it is very deficient in terms of discovering how much a person living with children living at home, as she has, has available for the payment of a substantial sum of money like this. There do not appear to have been any questions -- or if there were some, they do not appear to have been anything like the adequate number of questions posed to her -- to discover what her means were. There was nothing which could properly be called an enquiry. That then is a second reason why the Magistrates' procedure was not, in my judgment, appropriate to meet the requirements of regulation 47.
12. The third requirement of regulation 47 is an enquiry whether the failure to pay which has led to the application is due to wilful refusal or culpable neglect. I am not prepared for the purposes of this application to adopt fully Mr Wise's submission that the wilful refusal or culpable neglect has to be applied separately and at the date of the liability order to each of the orders in question, but the need to make the enquiry is absolutely clear. So far as the present case is concerned, there were a number of factors put before the Magistrates. One was evidently that the claimant had failed to meet payments under a previous arrangement. Another was that she appeared to have very little money to spend but had chosen, ("voluntary payment" is the way it is put in the council officer's note) to spend £5 a week on cigarettes and tobacco. But another factor which Mr Wise says should have been taken into account is that the claimant offered to pay £20 a week towards discharging her liability. It is true to say that it would have taken her a very long time to pay off at that rate, but that was a matter which needed to be dealt with by the Magistrates in determining whether her failure to pay was due to wilful refusal or culpable neglect. It appears to me that in failure to give proper value to that factor the Magistrates erred.
13. It is clear also that the Magistrates needed to decide, as part of their duty under regulation 47(2), whether a failure that they had found was due to wilful refusal or to culpable neglect in the sense of deciding which, rather than deciding whether it should have been due to one or the other. I say that because the judgments of Laws J (as he then was) in R v Highbury Corner Magistrates' Court ex parte Uchendu (1994) 158 JP 409 indicates that the period of any imprisonment imposed under regulation 47(3) must vary according to the culpability of the person in question and that it is less serious to fail to pay rates through culpable neglect than through wilful refusal. It surely follows from that, that in order to fix the amount of any term of committal it would be necessary to have determined whether it was wilful refusal or culpable neglect which had led to the failure to pay. The Justices in the present case failed to distinguish between those two and failed to make the finding that was necessary as a precondition to fixing a term of imprisonment.
14. The authorities are also unanimous that the purpose of imprisonment under regulation 47 is coercive. The purpose is to persuade a person who would be able to pay to make the payment, rather than continuing to wilfully refuse or culpably neglect payment. The Magistrates in the present case show no sign of having considered the purpose of imprisonment. As I have said, it is clear that the local authority sought commitment. It was for the Magistrates to decide whether the appropriate way of coercing the claimant in this case was an immediate term of imprisonment, which was the effect of their order. There had been no attempt of which I have been made aware to persuade the claimant to make payment in any other way, and it seems to me relevant to take together with this Mr Wise's submission that in this case the imposition of the maximum period of committal of 90 days was apparently inappropriate, certainly there appears to have been no consideration of what period would be appropriate bearing in mind the possibility of persuading the claimant to pay and the level of her wilful refusal or culpable neglect. It has been pointed out to me in addition that there were other possible ways in which the local authority might have been able to obtain payment, for example by attachment of the earnings of the claimant's husband. On that I reach no specific finding, save to say that the failure to make that enquiry does nothing to enhance the judgment of the Magistrates.
15. A final point raised by Mr Wise, and one again I regard of substance, is the Magistrates' failure to take into account the effect on the claimant's children of an immediate committal to custody as they imposed it. I do not need to set out in detail what the claimant has said in her witness statement, but the position is this. She went to court apparently not aware, or not fully aware, that the result of the day's proceedings might be that she would go immediately to prison, but that is what happened. There were two children at school who had no idea that that might happen. Whilst she was in prison they had to be looked after, and I understand that it was the claimant's husband who took most of the duties, but the youngest child is a person with a number of disadvantages, one of which is that he does not relate very well to his father because his father does not understand his speech. The Magistrates evidently made no enquiry into what the circumstances of the children would be, if their mother simply did not return home that night, but instead went to prison to begin what has to be regarded as a substantial period of absence from them.
16. It seems to me that in deciding whether a term of committal for debt is appropriate the duties of a court can be no less than they are in fixing a term of imprisonment on a criminal matter. Those duties have been considered by the Court of Appeal in R(P) v Secretary of State for the Home Department [2001] EWCA Civ 1151 and applied more recently by the Court of Appeal in R v Bishop (Wayne Steven) [2011] WL 844007. The outcome of those two authorities is this. The existence of children cannot of course keep a person out of prison who should properly be sent to prison, but a sentencing court needs to be able to bear in mind what the effect on the children will be, and, if there are children and if the court does not have the information it needs in order to assess the effect of the parent's imprisonment on them, then the court must make enquiries so that it is properly informed. Those enquiries were not made in this case.
17. For all those reasons, I have concluded that permission should be granted and that the application for judicial review should also be granted. The appropriate order ,will be an order quashing the order for committal made by the Magistrates on 14th January 2011. The claimant having now been released from prison, I need to say no more about her release.
18. Mr Wise has also argued that if I were to find that the Magistrates' decision was properly subject to judicial review, as I have found, it was a decision which was unlawful and should therefore result in principle in a claim for damages against the defendants.
19. On that point I do not accept Mr Wise's submissions. Article 5 of the European Convention on Human Rights is headed "Right to liberty and security". It provides as follows:

"5 (1)Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..."

Mr Wise submitted that none of the following apply in the present case, but it is clear that paragraph (b) applies to the case, "the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law". As the authorities are clear that the purpose of detention in cases such as the present is coercive, that is to say persuasive, it is more than arguable that it is in order to secure the fulfillment of any obligation prescribed by law. And so far as concerns the 'lawfulness' of an order, I would want to be persuaded that the colour of legality that the order in the present case had was not sufficient to protect it from breaching Article 5(1).

But whether or not that is right, Mr Wise goes on to point out that everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. It is that right which Mr Wise seeks to invoke in these proceedings. He recognises immediately that in the case of the defendants in these proceedings he is in some difficulties because of the statutory protection immunity in the case of justices and justices clerks given to them by section 31 of the Courts Act 2003.

He refers however to the decision of the Court of Appeal in TTM v Hackney London Borough Council [2011] EWCA Civ 4. That was a case concerning section 139(1) of the Mental Health Act 1983, which gives gave an immunity to those doing or purporting to do any act in pursuance of the provisions of the Mental Health Act. It provides that there shall be no liability: no civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court. In TTM v Hackney the court concluded that it was appropriate to secure the possibility of allowing a claimant who had been wrongfully detained to obtain compensation from the local authority. The solution reached was to read down section 39(1) so as to permit a claim for compensation.

20. In my judgment, such a reading down is not necessary in the present case. The defendants are the Magistrates and, despite what is said in TTM v Hackney, it would be a very grave step to decide that a court acting in the course of its ordinary jurisdiction was liable to pay damages to an individual affected by an order, particularly where there is a statutory immunity. Article 5(5) of the European Convention on Human Rights requires there to be a process for compensation of a person wrongfully imprisoned, and without further enquiry as to the prospects of a claim against others I am not willing to find in these proceedings that the Magistrates are, despite their statutory immunity, liable to pay damages.
21. So far as that part of the claim is concerned, I grant permission but dismiss it. So far as the rest of the claim is concerned, the application for judicial review is granted.
22. MR WISE: I am obliged, my Lord. I wonder if you could please give me a moment to take instructions.
23. Two matters, my Lord. Firstly, with respect to the damages point, we seek permission to appeal for a number of reasons. Firstly, it is plainly an important issue that is, as your Lordship has recognised, arguable, albeit you refused the claim on that ground. Your Lordship will of course appreciate the two grounds of seeking permission to appeal, arguability and other compelling reason. We would say we get home on both of them: it is arguable and there are compelling reasons. They are compelling in that it is an important point of wider importance for the Court of Appeal to consider. There is probably little more I could say about that at the moment, but it would, in our submission, be appropriate for the matter to be fully ventilated before the Court of Appeal, with the assistance hopefully of the Secretary of State. That is our application with respect to permission to appeal on the damages front.
24. Dealing next with costs, your Lordship sees that the local authority -- there is also a statutory immunity with respect to costs as well and we do not seek costs against the Magistrates in this case. The only person that we could seek costs against are conceivably the local authority. Your Lordship should appreciate the background to this case is that my client has not had the assistance of public funding throughout and so she has had to borrow money for the bail application and so public funding has not been sufficient for her in this application. That in itself causes good enough reason why costs should be borne by another party. The local authority are a party in these proceedings by virtue of having been served; that much is plain from the rules.
25. THE DEPUTY JUDGE: Yes.
26. MR WISE: Your Lordship accepts that, but of course that in itself does not mean that they would be liable for these costs, it is in the discretion of the court. The reasons why we say the local authority should bear the costs in this case, in addition to the points just made, are that it is the local authority that has pursued my client in the first place, in the Magistrates' Court, it was their application for committal to prison. They opposed the application for bail, vigorously opposed the application for bail. They put in an acknowledgement of service in these proceedings in which they said they intend to oppose the application in its entirety. They have failed, in our submission, to address the very real concerns that have arisen in this application, and so one would have expected, for example, given the strength, the apparent strength of the claimant's case, and now we know actual strength of the claimant's case, for the local authority to have intervened, and if they were neutral, to have taken an approach that either supported the claimant or took steps to avoid any possibility of having to go back into custody. They chose not to do that and their neutrality, as they describe it, in the later stages of these proceedings in itself is not properly to be characterised as neutrality. Their failure to engage, having seen the strength of the case, they had plainly been very much involved with the case, they had responded to a number of letters and responded to others when it suited them, they have engaged specialist solicitors, Sharpe Pritchard, on their behalf, and yet have still not made a proper analysis of the legal issues involved in the case, as one would expect from a neutral party. Their partisan position at the outset of these proceedings has not been cured by their lack of action in the later part of these proceedings. So one has to look at the way in which the local authority has acted as a whole. For all those reasons we would invite your Lordship to make an order that the local authority bears my client's costs.
27. THE DEPUTY JUDGE: Summarily assessed at?
28. MR WISE: We have not done an assessment, my Lord. There has not been a schedule.
29. THE DEPUTY JUDGE: Mr Wise makes an application for costs against the local authority in this case, who were served as an interested party and have provided much of the information on which my judgment has been based. As he points out, the Magistrates, the defendant in this case, are immune from an order for costs.
30. It seems to me that the local authority might be subject to a certain amount of criticism in the way in which this case has been run from the beginning. First, it is clear that the local authority were present in court when the Magistrates made their enquiry, and if the Magistrates' decision had the defects which I have identified, the local authority may bear some responsibility for not allowing the matter to be put right at the time. Subsequently, as Mr Wise says, the local authority have resisted both the claimant's claim to be released from custody by this court earlier this year and have formally resisted the present claim, although most recently taking what was said to be a neutral position.
31. The local authority's position in a case such as this is, however, constrained. As an interested party, rather than the defendant, they are unable to compromise the proceedings, and as there had been an order of the Magistrates' Court it was not open to the local authority simply to say that it should be set aside. However, I am persuaded that in principle the local authority should pay the claimant's costs. What I propose to do is this. I will make an order that the local authority pay the claimant's costs, subject to any representations they make in writing within 14 days. If they do may any representation the claimant has seven days to reply and the matter will then be put before me for decision on the papers.
32. MR WISE: I am obliged, my Lord. I omitted to mention, my Lord, that they sought in their representations that if an order were to be made they be given the opportunity to make representations. I apologise, should have brought that to your Lordship's attention.
33. On costs we also want an order for legal aid assessment as well, if your Lordship could grant that.
34. THE DEPUTY JUDGE: Yes.
35. MR WISE: I am obliged.
36. THE DEPUTY JUDGE: You also want to know if you can have permission to apply to the Court of Appeal.
37. MR WISE: Yes, that is the final question.
38. THE DEPUTY JUDGE: So far as permission to apply to the Court of Appeal is concerned, the position is that, Mr Wise, you have my judgment on the substantive issues, and in particular, but not solely, bearing in mind the terms of Article 5, I regard the point as not one appropriate for the granting of permission to appeal to the Court of Appeal, so I refuse that.
39. MR WISE: Very well, my Lord. I am much obliged to your Lordship for sitting late and dealing with this very anxious matter.
40. THE DEPUTY JUDGE: It is the shorthand writer who bears the burden and the associate also.
41. MR WISE: No necessity for an order to release my client from bail, your Lordship has quashed the decision and therefore her liberty is restored.
42. THE DEPUTY JUDGE: She was released by this court under some conditions was she?
43. MR WISE: She was, my Lord, yes. It was a residence condition.
44. THE DEPUTY JUDGE: Formally the residence condition is lifted. I expect that is where she proposes to live anyway.
45. MR WISE: Finally, my Lord, plainly we are going to have to give consideration with regards to the damages point and whether we pursue it or not, but it would be helpful if we could have a transcript of your Lordship's judgment --
46. THE DEPUTY JUDGE: As it is a rolled up hearing it is a substantive application for judicial review and, as I understand it, they are routinely prepared for BAILII and/or other qutlets. If you seek one in more of a hurry than that, then you will have to make whatever application is appropriate. Thank you.