England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/08/2013

MR JUSTICE FOSKETT:

1. This matter comes before the court on the Claimant's renewed application for permission to apply for judicial review, the application having previously been rejected on the papers by Males J. The court indicated that it would give reasons in writing for the refusal of the renewed application and for refusing an application to amend the Claim Form.
2. During 2007 the Claimant, under the name David Bowry, was convicted at Croydon Crown Court of making a false statement to obtain a benefit and producing/furnishing false information. He was sentenced to 16 months imprisonment.
3. On 2 January 2008 His Honour Judge Walker QC made a confiscation order in the sum of £76,690.76 payable within 6 months and a term of 18 months imprisonment was imposed in default of payment. The Claimant's appeal against the confiscation order was dismissed by the Court of Appeal Criminal Division on 1 May 2009: see [2009] EWCA Crim 1244.
4. No payments were made under the order and on 26 February 2010 the City of Westminster Magistrates' Court committed the Claimant to serve the period of 18 months in default of payment.
5. The essential procedural background to the enforcement of a confiscation order is that a magistrates' court enforces such an order as if it were a fine imposed by the Crown Court (see section 75 of the Criminal Justice Act 1988 and section 140 of the Powers of Criminal Courts (Sentencing) Act 2000) and service of the default sentence of imprisonment does not extinguish the debt nor does it prevent "any other method of enforcement" (section 75(5A) of the 1988 Act).
6. Following his release from prison, at a hearing before Westminster Magistrates' Court on 24 May 2011 which he did not attend, the court made a "collection order" against the Claimant (in other words, an order made under Part 4 of Schedule 5 of the Courts Act 2003). In a letter to his solicitors from HMCTS London Regional Confiscation Unit dated 9 June 2011 the following material paragraphs appeared:

"…. The court concluded that the defendant was not an 'existing defaulter' (within the meaning of that term given in Paragraph 3 of Part 1 of Schedule 5 of the Courts Act 2003). On that date £76,690.96 was owed on the order and a further £17,705.29 in statutory interest; a total of £94,441.25. The court requested that monies owing be paid within seven days.

[The letter continued by saying that he could apply to a fines officer concerning payment arrangements and stated that the collection order had been referred to such an officer and continued thus:]

Failure to pay as ordered will make you liable for further enforcement. This could include:

Deduction from your earning or benefit

Increase the financial penalty by 50%

Clamping, removal and sale of your vehicle.

Registering the account in the Registrar of Judgments, Orders and Fines (affecting your ability to obtain credit)

A distress warrant being issued to the Court bailiffs (including additional costs)

Issue of a summons to attend a Magistrates' Court (paragraph 37(6)(a) of Part 9 Schedule 5 Courts Act 2003 and Section 83(2) Magistrates' Court Act 1980)

…"

7. No complaint about the making of the collection order was made in the judicial review Claim Form. An application to amend the Claim Form to include a challenge to the making of that order was intimated on 4 March 2013 in a Further Statement of Facts and Grounds in support of the judicial review application. As Mr Ivan Hare, who appeared for the Defendant, indicated, this application was made 19 months out of time with no explanation for the delay in making it. In the original Statement of Facts and Grounds in support of the application for judicial review, there is no hint of any challenge to the making of such an order and all that Miss Lisa Freeman, who appears for the Claimant, was able to say in support of the application was that the need to challenge the order "has only become apparent as a result of the decisions of the Defendant which are subject to the Claimant's application."
8. For my part, I would not permit such a late application which, in any event, does not appear to have any intrinsic merit.
9. The threat in the letter referred to in paragraph 6 above was of the issue of a summons to attend a magistrates' court in the context of which reference was made to paragraph 37(6)(a) of Part 9 of Schedule 5 to the Courts Act 2003 and to section 83(2) of the Magistrates' Court Act 1980.
10. Schedule 5 of the 2003 Act is one of a number of schedules to the Act containing detailed provisions. In view of one of Miss Freeman's submissions (see paragraph 14 below), it is worth noting that the heading to this schedule is 'Collection of Fines and other sums imposed on conviction', the underlined words having been added by The Collection of Fines (Final Scheme) Order 2006 with effect from 3 July 2006.
11. The provision referred to in paragraph 9 above, together with paragraph 42 of the same schedule, set out the circumstances in which a "fines officer" (see paragraph 12 below) may refer a case to the magistrates' court. Both provisions appear in Part 9 of Schedule 5, a part that now bears the heading 'Further steps'. Whether paragraph 37 was or was not applicable in this case is irrelevant because the paragraph in fact relied upon for the purposes of the relevant summons, paragraph 42, is broadly expressed and undoubtedly was capable of being applied in this case at the time it was. Indeed no suggestion is made that it was an inappropriate paragraph to invoke. Sub-paragraphs 1 and 2 of paragraph 42 are as follows:

"(1) The fines officer may refer a case to the magistrates' court at any time during the period which—

(a) begins the day after the collection order is made, and

(b) ends with the date on which—

(i) the sum due (including any increase to which he remains liable) is paid, or

(ii) the order is discharged.

(2) On a referral under this paragraph, the court may—

(a) confirm or vary the payment terms (or the reserve terms),

(b) exercise any of its standard powers in respect of persons liable to pay fines or other sums, or

(c) exercise a power it could exercise under any other paragraph."

12. In due course a designated fines officer, invoking paragraph 42(1), issued a summons for the Claimant to appear before the City of Westminster Magistrates' Court on 19 July 2011. The summons was issued under paragraph 4 of The Fines Collection Regulations 2006. That provision reads as follows:

"A fines officer may for the purpose of ensuring that P attends a magistrates' court to which he has referred P's case under paragraph 37 or 42 of Schedule 5, issue a summons requiring P to appear before the court at the time and place appointed in the summons."

13. The explanatory note to the Courts Act 2003 indicates the essential structure of what the Act puts in place and the role of the "fines officer". Paragraph 35 reads as follows:

"The Act creates the role of "a fines officer" to take enforcement action in certain circumstances, thus removing the need for all enforcement decisions to be taken by a court. A fines collection system (Schedule 5) has been set up which introduces financial incentives to offenders to pay their fines, as well as providing a range of new disincentives for fine default, including wider powers to make attachments of earnings orders (AOE) and deductions from benefits (DFB). The system is designed to encourage payment but will include new penalties for those who have the means and will not pay. The Act also introduces new sanctions for failing to provide information necessary to make AOE orders and DFB applications. For those who are unable to pay a fine, the Act introduces (in Schedule 6) a system for discharging fines by unpaid work."

14. Miss Freeman submits that this demonstrates that the "Collection Order scheme" as she describes it and the powers conferred on a fines officer do not sit happily with the enforcement of confiscation orders and says that it is notable that the Home Office National Best Practice Guide to Confiscation Order Enforcement (running to some 221 pages), published in October 2010, makes no reference at all to the Collection Order scheme.
15. In my judgment, that merely illustrates the proposition that it may only be in relatively rare cases that the "Collection Order scheme" is utilised for purposes other than the collection of fines. It does not, however, support an argument that if the statutory language plainly permits its use in other contexts, the language should be interpreted in a restrictive fashion so as to exclude that wider use. Whilst limited weight can be placed for interpretation purposes on the heading given to Schedule 5 (see paragraph 10 above), that the heading was changed in 2006 suggests that the contents of the Schedule did, or certainly were intended to, go further than merely in respect of the enforcement of fines. At all events, the essential question for present purposes is whether what occurred in this case was embraced within the statutory language or was outside it.
16. The Claimant did not attend the hearing on 19 July 2011, but by a letter of that date his solicitors forwarded a letter from him explaining his current financial circumstances and making an increased offer of payment.
17. It is not entirely clear what happened thereafter, but on 18 September 2012 the designated fines officer issued another summons for the Claimant to appear before Westminster Magistrates' Court on 25 September 2012 pursuant to the provisions to which I have referred. There is no challenge to the exercise of this power. The summons stated that failure to attend the hearing may lead to a warrant being issued for the Claimant's arrest under section 83(2) of the 1980 Act. It is at this point that the Claimant's essential challenge begins.
18. He did not attend court on 25 September 2012 and a warrant for his arrest without bail was issued pursuant section 83(2). I will turn to that provision shortly.
19. By letter dated 28 September 2012, his solicitors requested that the warrant of arrest be withdrawn immediately, failing which the matter should be listed for hearing on the first available date.
20. On 10 October 2012 the Claimant's application to withdraw the warrant on the grounds that it was unlawful was heard by District Judge Roscoe and on 31 October 2012 she gave an oral judgment refusing the application. On 2 November 2012 at 14:00 hours, we were told, the Claimant surrendered to the court and at 3.15 pm he was taken into custody and at 3.40 pm was brought into court.
21. The District Judge was of the view that the first step was to undertake a means inquiry, but the position taken on the Claimant's behalf was that the court had no jurisdiction to undertake such an inquiry in the circumstances of this case. The matter was then adjourned to 20 November 2012 and reserved to District Judge Roscoe. The Claimant was subsequently released from custody.
22. On 20 November 2012 the District Judge heard submissions and determined that she had jurisdiction to order a means inquiry and in compliance with that order the Claimant completed a means form declaring that his only source of income was from Government benefits, namely, Job Seekers Allowance in the sum of £71 per week and housing benefit in the sum of £760 per month.
23. The District Judge stated that at an enforcement hearing the Court was required to consider all methods of enforcement, including a warrant of commitment although, in the circumstances, that was not a possible outcome. She considered whether to make one of a number of orders including whether to make a deduction from benefit order.
24. The Claimant submitted that it would be a wrong exercise of the Court's discretion to make a deduction from benefit order, a submission the District Judge accepted. However, she made an order that the Claimant should pay £10 every fortnight towards settlement of the confiscation order, albeit that it would not be deducted from his benefits at source.
25. The District Judge then adjourned the hearing to 19 February 2013 and advised the Claimant that if he failed to attend a further warrant of arrest would be issued.
26. On 3 January this year the judicial review claim form was issued challenging –

(i) the decision of 25 September 2012 to issue a warrant of arrest;

(ii) the decision of 31 October 2012 to refuse to withdraw the warrant of arrest;

(iii) the decision of 20 November 2012 ordering the Claimant to be subjected to a means inquiry pursuant to section 84 of the Magistrates Courts Act 1980;

(iv) the decision made on the same day ordering the Claimant to pay the sum of £10 per fortnight in part satisfaction of the outstanding confiscation order.

27. The challenge to the issue of the warrant of arrest is put shortly in this way. The jurisdiction to issue such a warrant in this context is conferred by section 83(2) which reads as follows:

"83 – Process for securing attendance of offender

(1) A magistrates' court may, for the purpose of enabling inquiry to be made under section 82 above or for securing the attendance of an offender at a hearing required to be held by subsection (5) of that section –

(a) issue a summons requiring the offender to appear before the court at the time and place appointed in the summons; or

(b) issue a warrant to arrest him and bring him before the court.

(2) On the failure of the offender to appear before the court in answer to a summons [issued under this section, or by virtue of Schedule 5 to the Courts Act 2003] the court may issue a warrant to arrest him and bring him before the Court.

…"

28. The words in square brackets - "issued under this section, or by virtue of Schedule 5 to the Courts Act 2003" - were added by The Collection of Fines (Final Scheme) Order 2006. They replaced the words "to a summons issued under this section the court may issue a warrant to arrest him and bring him before the court."
29. Miss Lisa Freeman contends that the inclusion of the words "or by virtue of Schedule 5 to the Courts Act 2003" does not alter the fact that, as she puts it, section 83 is purely ancillary to section 82 and affords a mechanism for securing the attendance of the defaulter "for the purpose of enabling an inquiry" to be made under section 82 (such an inquiry being an "inquiry as to means": see [21] of Necip referred to in paragraph 30 below). By implication her contention is that unless the purpose of requiring the presence of a defaulter is to conduct such an inquiry, there is no power to issue a warrant.
30. In support of her contention that section 83 is purely ancillary to section 82, she draws attention to R (Necip) v City of London Magistrates' Court [2010] 1 WLR 1827. In that case the claimant was convicted of drug trafficking and the Crown Court made a confiscation order against him under section 2 of the Drug Trafficking Act 1994 with a period of four years' imprisonment specified in default of payment. No payment towards that sum was made and the claimant served a prison sentence in default. The claimant did not attend a hearing before the magistrates' court for the purposes of conducting a means inquiry in relation to the outstanding confiscation order and the justices issued a warrant for his arrest pursuant to section 83. The claimant sought judicial review of that decision.
31. Reference to the headnote is sufficient for present purposes. The holding indicates that the decision to quash the warrant was made for the following reasons:

"… section 83 of the Magistrates' Courts Act 1980 was purely ancillary to section 82 and could be used to secure attendance only for section 82 purposes; that section 82 did not apply where there was no question of a warrant of commitment being issued and the court was concerned only with whether some other method of enforcement of the confiscation order should be adopted; that section 9(5) of the Drug Trafficking Act 1994, which was concerned with methods of enforcement other than a warrant of commitment, did not alter the meaning or effect of section 83 of the 1980 Act, and so the issue of a warrant of arrest under section 83 was not a method of enforcement for the purposes of section 9(5); that, since the claimant had already served a sentence in default, the hearing listed in the magistrates' court had been for the purpose of considering methods of enforcement other than a warrant of commitment and so section 82 had not been in play; and that, accordingly, there had been no power under section 83 to issue the warrant of arrest."

32. The short point in response to Miss Freeman's argument is that in Necip the court was not concerned with a situation where the summons to attend the magistrates' court had been issued under Schedule 5 of the 2003 Act. Indeed there is no reference in the judgment of Richards LJ to the additional words in section 83(2) to which I have referred in paragraph 28 above. The issue of the relevance of those words was thus not addressed in that case. Mr Hare is, in my view, justified in saying that the submissions made on the Claimant's behalf are made as if those words were not there.
33. In common with the District Judge (and indeed Males J), I would reject the contention I have summarised in paragraph 29 above as unarguable. The practical effect of such a construction would be that there is no means by which the presence in court of a confiscation defaulter such as the Claimant could be achieved. I have little doubt that that was not Parliament's intention, but if that is the true effect of the section then, of course, effect must be given to it. However, as the District Judge said, such an interpretation would "drive a coach and horses" through the court's powers to pursue a confiscation defaulter who has served the default term imposed at the time of the original confiscation order and who shows no inclination at all to co-operate with the court's enforcement processes.
34. In my judgment, subsection (2) stands apart from subsection (1) of section 83 in the sense that the wording of each is not expressly linked. This means that the powers given by subsection (2) are not confined to the purpose referred to in subsection (1). Subsection (2) enables the court to issue a warrant when a defaulter has failed to appear before the court in answer to a summons "issued … by virtue of Schedule 5 to the Courts Act 2003". That, in my view, is the short and simple answer to Miss Freeman's argument. The words of the subsection thus interpreted give effect to what I perceive to have been an obvious Parliamentary intention to provide a judicial power to order the arrest of a confiscation defaulter who fails to attend court pursuant to a summons issued by a fines officer. In my view, any contrary argument is untenable.
35. In this case the Claimant failed to appear in answer to such a summons and, accordingly, the District Judge had the power to issue the warrant. For the same reason she was amply justified in refusing to withdraw it when invited to do so.
36. For those reasons, the proposed challenge to the issue of the arrest warrant and the decision not to withdraw it do not, in my view, cross the arguability threshold and, accordingly, I would refuse this renewed application for permission to apply for judicial review on those grounds.
37. As already indicated (see paragraph 26 above), Miss Freeman seeks to attack the decision to hold a means inquiry and to make the order for £10 per fortnight.
38. As to the means inquiry, it is said that the District Judge purported to direct such an inquiry pursuant to section 84 of the 1980 Act. In fact there is no note or other record in the papers before the Court evidencing that proposition. We will, however, assume for present purposes that it is correct. Miss Freeman contends that section 84, which provides the court with a power to order a person to provide a statement of means either before or on inquiring into a person's means under section 82, does not provide a free-standing power so to act, but is contingent on the court exercising its powers under section 82. Since the court could not have been acting under section 82 (which, for my part, I accept), the jurisdiction conferred by section 84 could not be invoked.
39. Whilst, for my part, I might be prepared to accept that such a proposition was arguable as a matter of construction, it would mean that there would be no teeth provided to the court to endeavour to get to the bottom of the means available to a serial confiscation defaulter such as the Claimant. Mr Hare has, however, satisfied me that a route to the District Judge's decision to order the provision of such information existed in the situation confronting her and, accordingly, any argument in relation to the use of section 84 would be academic.
40. The powers of the court on a reference by the fines officer are set out in paragraph 42(2) of Schedule 5 (see paragraph 11 above) which includes the power "to vary the payment terms". The "standard powers" of the court are set out in paragraph 50 of Schedule 5 as follows:

"In this Schedule "standard powers in respect of persons liable to pay fines or other sums" means any power that a magistrates' court would have had if P had not been subject to a collection order but had been liable to pay the sum due."

41. Those powers include the making of an attachment of earnings order under the Attachment of Earnings Act 1971 (as amended). The following section (section 1A) was introduced into the Act by The Collection of Fines (Final Scheme) Order 2006 with effect from 3 July 2006:

"The following provisions of this Act apply, except where otherwise stated, to attachment of earnings orders made, or to be made, by any court under this Act or under Schedule ?5 to the Courts Act 2003, or by a fines officer under that Schedule."

42. A subsequent provision in that Act is section 14(1) that reads as follows:

(1) Where in any proceedings a court has power under this Act or under Schedule ?5 to the Courts ?Act ?2003, or a fines officer has power under that Schedule, to make an attachment of earnings order, the court or the fines officer, as the case may be, may—

(a) order the debtor to give to the court or the fines officer, as the case may be, within a specified period, a statement signed by him of—

(i) the name and address of any person by whom earnings are paid to him;

(ii) specified particulars as to his earnings and anticipated earnings, and as to his resources and needs; and

(iii) specified particulars for the purpose of enabling the debtor to be identified by any employer of his …."

43. This plainly affords jurisdiction to require someone in the position of the Claimant to provide "particulars as to his earnings and anticipated earnings, and as to his resources and needs". That was, in effect, what the District Judge did in this case.
44. The final argument sought to be advanced relates to the order to pay £10 per fortnight. Miss Freeman contends that in circumstances where the District Judge agreed that it would be wrong to make a deduction of benefit order, it was a wrong exercise of discretion to make an order to pay an equivalent sum where the Claimant's only source of income is benefits.
45. The Court does not have a note of her reasons for taking this course nor of her reasons for not making a deduction of benefit order: to that extent the court does not have the materials with which to assess the argument that her decision is susceptible to challenge. However, the short answer to Miss Freeman's argument is, in the first place, that there was (as I believe she accepts) jurisdiction to make such an order. The broad discretion available to the court is provided for in paragraph 42(2) (see paragraph 11 above) and further clarified so far as an instalment order is concerned by paragraph 14 of Schedule 5 which reads as follows:

"(1) If the relevant court has not under Part 3 made an attachment of earnings order or an application for benefit deductions, the collection order must state the payment terms.

(2) "The payment terms" means—

(a) a term requiring P to pay the sum due within a specified period, or

(b) terms requiring P to pay the sum due by instalments of specified amounts on or before specified dates."

46. Mr Hare submits that the decision to order £10 per fortnight was well within the broad discretion available to the District Judge. For my part, I would agree that, given the background to the case, it would have been tantamount to giving in abjectly to the Claimant's recalcitrance not to have made a modest order – which £5 per week plainly was. Furthermore, if there was to be a challenge to that decision it would more appropriately have been mounted at the proposed hearing before the District Judge in February (which has since been adjourned administratively pending the outcome of these proceedings) rather than by way of judicial review.
47. Whilst a journey through the provisions of Schedule 5 is not always an easy one, in my judgment, on proper analysis of the relevant provisions none of the points advanced on the Claimant's behalf is arguable and I would refuse the renewed application for permission to apply for judicial review.

LORD JUSTICE TREACY:

48. I agree.