England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/01/2013

President of the Queen's Bench Division:

This is the judgment of the court.

Introduction

1. This judicial review is brought with the leave of Singh J against a decision of the South Western Magistrates' Court in relation to a decision on the enforcement of fines made on 19 October 2011. The proceedings have disclosed significant problems in London in providing courts with proper information about the amounts of fines which may be outstanding against an offender and against a fine defaulter. The consequences to the proper administration of justice in London and public confidence are serious. First, courts or other bodies entitled to impose penalties do not have proper information before them when they make their decisions and may therefore impose further fines or financial penalties which an offender has no prospect of paying. Second, the enforcement of fines is made time-consuming, expensive and very difficult, particularly in the case of persistent offenders. That in turn undermines public confidence in the efficacy of financial penalties as an effective punishment.
2. When the matter was before the court for the hearing of the judicial review on 17 October 2012, despite the fact that Singh J had granted leave, very little information was before the court. We had some information from the CPS who had been wrongly served as an interested party and a short note from the Legal Advisor to the court. The matter was adjourned for further information to be provided by the Magistrates' Court and the London Collection and Compliance Centre (the LCCC) which acts for the Designated Fines Enforcement Officer for London.
3. At the further hearing, Mr Jonathan Hall appeared on behalf of the Magistrates' Court. We are grateful to him for his detailed submissions, to Mr Julien Vantyghem, Justices' Clerk for London West, for explaining the general background, and for statements from the Legal Advisor and the Magistrate presiding at the Magistrates' Court. Such statements are required in a case such as this as the Magistrates' Court is not a court of record and it was essential that more information be provided.

The factual background and the claimant's allegations

(a) The fines imposed on the claimant

4. Over the past 12 years, the claimant has received about 20 convictions and penalties, most of which related to driving offences. All were within the London area. The amounts levied were accumulated in 19 outstanding individual accounts on the enforcement records. They originally totalled £4,170.65, including (1) fines, (2) costs, and (3) fixed penalties.
5. The fines/penalties/costs are recorded on four databases run by the LCCC - one for the North East, one for the North West, one for the centre and South East and one for the South West. When a fine is imposed an account is created on one of those databases, either by reference to the location of the court or by reference to the place where the defendant lives. Although the accounts for differing fines within one of the four databases can be consolidated in that database, it is not possible to consolidate accounts if they are in different databases. There is no national database.
6. The fines totalling £4,170.65 imposed on the claimant were carried on three of the four databases.

i) Included in the account on the South East database were other penalties and fines originally totalling £820. After an appeal against sentence to Croydon Crown Court one fine had been reduced; the amount owed is £705.

ii) On the South Western database there were six accounts. The amount originally owing was £1,785.65, including the costs of £215 of one appeal at Snaresbrook Crown Court on 11 April 2011 where the claimant had been unsuccessful in contesting a conviction at Havering/ Romford Magistrates' Court on 9 February 2011 (the fines for which were recorded on the London North East database, as we explain below). He had paid £395 in respect of these fines; £75 was remitted following a means enquiry. One account totalling £200 was cancelled administratively and one fine was reduced by £160 on appeal. The amount outstanding in respect of these accounts was £955.65, but distress warrants had been issued for some of those amounts.

iii) Amongst the fines included on the North East London database originally totalling £2,760 were:

a) Fines imposed after four convictions in absence at the Havering/Romford Magistrates' Court on 17 April 2009, totalling £1,795.00, inclusive of costs.

b) The costs of another unsuccessful appeal in respect of those convictions at Snaresbrook Crown Court on 18 June 2009 in the sum of £250.

c) A fine, costs and a surcharge totalling £715 imposed after conviction at Havering/Romford Magistrates' Court on 9 February 2011. He appealed unsuccessfully against these to the Crown Court at Snaresbrook on 11 April 2011; the costs of the unsuccessful appeal were, as we have set out, recorded on the South Western database.

7. However the dismissal of the claimant's appeal by the Crown Court at Snaresbrook on 18 June 2009 in respect of the fines imposed at Havering/Romford Magistrates' Court on 17 April 2009 (to which we have referred at paragraph 6.iii)b) above) was quashed in this court on a judicial review determined on 30 March 2011 ([2011] EWHC 934 (Admin)). A re-hearing was ordered but has not taken place. The consequence was that the costs of £250 were not payable and the fines of £1,795 were suspended and not enforceable. Thus the amount, in fact, owing on the account held on that database was £715 at the time the appellant appeared at the South Western Magistrates' Court on 19 October 2011 and not the amount of £2,760.
8. The total amount which was actually due on the three databases on 11 October 2011 was £2,375.65 and not the much greater sum of £4,170.65.

(b) The attempts to enforce the fines on the North East London Database

9. It is not necessary to set out in detail what happened in 2010 and the period up to October 2011 in respect of the attempts to enforce the fines on the North East London database, including the fines imposed at the Havering/Romford Magistrates' Court on 17 April 2009. Suffice to say the claimant was arrested on a warrant not backed for bail for non-payment on 2 February 2010 whilst the judicial review of the appeal heard by Snaresbrook Crown Court against those fines was pending. Further proceedings followed, with repeated hearings and adjournments.
10. On 20 April 2011, the claimant attended a means enquiry hearing at the Wimbledon Magistrates' Court. An Order was made that all the accounts for the North East area be consolidated in an amount of £2,760 which the claimant was ordered to pay at £5 a fortnight. Although by that time the decision of Snaresbrook Crown Court upholding the fines imposed on 17 April 2009 at the Havering/Romford Magistrates' Court had been quashed, that information was not put onto the database and so the amount recorded as outstanding was £2,760.
11. There were yet further hearings and adjournments until a means enquiry on 15 June 2011 where the claimant completed a statement of means form. The claimant submitted it, but the matter was adjourned until 26 August 2011. There were further adjournments in August and September and the hearing then took place on 19 October 2011.

(c) The hearing on 19 October 2011 at the South Western Magistrates' Court in relation to the amounts outstanding on the North East London Database

12. On 19 October 2011, prior to the case being called on, the claimant completed a further statement of means form. The form made provision for the claimant to set out as part of his outgoings "County Court order and other fines". He filled that in with a line indicating there were none.
13. It was the contention of the claimant that at that hearing the Legal Advisor did not allow him to put his case and asked him a lot of questions which were irrelevant. He complained of unfairness by the Legal Advisor and by the Chairman of the Bench. In the statements served by the Legal Advisor and the Chairman it appears that, when the appellant raised the point that this court had quashed the decision of the Snaresbrook Crown Court and that therefore neither the costs nor the fines imposed by the Havering/Romford Magistrates' Court were payable, the court could not find this information on the database. More enquiries were made and information was sought from the LCCC but none was forthcoming. In the end, the claimant admitted that he owed £950 and an Order was made that the sum should be paid at the rate of £5 a week.
14. As is apparent from what we have set out above, the sum then owing on the North Eastern database was £715 and £215 in respect of the other appeal at Snaresbrook on 11 April 2011 that was on the South Western database. Including that amount gives a total of £930.
15. The court issued a Collection Order. According to the court records it was for £950 at £5 per week, but the letter sent to the claimant dated 19 October 2011 signed by "A. Eccles" as Designated Officer, states:

"Grant of Time to Pay

You owe £2,760

Time to pay £5.00 per week commencing 26 October 2011

If you do not pay the money you owe as the court tells you, you will have to pay it all at once."

No explanation was provided for this significant discrepancy between the decision of the court and the letter sent to the claimant.

16. Following the making of that Order, pursuant to paragraph 12 of schedule 5 to the Courts Act 2003, the responsibility for enforcing the fines became that of the Fines Officer.
17. We were told all accounts were on "enforcement hold" pending the outcome of these proceedings.

Our conclusions

(a) The duty of the Legal Advisor

18. We turn first to deal with the complaint as to the way in which the hearing was conducted by the Legal Advisor.
19. The duty of the court to enquire into means when a person has defaulted on his fine is set out in s.82(3) –(4) of the Magistrates' Courts Act 1980. A defaulter is required to complete a statement of means on an appropriate form before the case is called on. The court office should also have prepared an Account Enquiry Report detailing all outstanding fines. Each court in London has access to each of the databases for London, but not for the databases of courts outside London.
20. The defaulter is then required on oath or affirmation to answer questions put by the Legal Advisor; this is not an adversarial process and Legal Advisors must not stray into the role of a prosecutor: see Mort v UK [2002] Crim LR 920. Guidance as to the task of the advisor is set out in the Consolidated Criminal Practice Direction (1^st October 2011) at V.55.10:

'The role of legal advisors in fine default proceedings or other proceedings for the enforcement of financial order, obligation or penalties, is to assist the court. They must not act in any adversarial or partisan manner. With the agreement of the justices, a legal advisor may ask questions of the defaulter to elicit information which the justices will require to make an adjudication, for example to facilitate his explanation for the default. A legal advisor may also advise the justices, in the normal way, as to the options open to them in dealing with the case…The duty of impartiality is the paramount consideration for the legal advisor at all times; and this takes precedence over any role he may have as a collecting officer…'

21. In London, Legal Advisors have been required by the Justices' Clerks to adopt a structured approach set out in a template dated 28 June 2006. The approach covers the duty of the Legal Advisor to set out the history of the matter and to make clear to the defaulter that he is in breach and that the court has a power ultimately of imprisonment. The Legal Advisor is then to ascertain why the defaulter has breached the Order, to require the defaulter to confirm the accuracy of the means form and to ascertain any missing details and enquire further where appropriate. At the end of the enquiry, the role of the Legal Advisor is to summarise the enforcement options previously tried and the options open to the court. The court will ask questions if it wishes to clarify matters.
22. It seems to us the process set out in the template of 28 June 2006 clearly sets out, in the case of a defaulter with one fine outstanding, an appropriate procedure which must be carried out in accordance with the requirements of the Consolidated Criminal Practice Direction.

(b) The fairness of the conduct of the proceedings against the claimant

23. On the evidence before us, we can see no basis for concluding that the procedure followed by the Legal Advisor was in any way inappropriate or in breach of these requirements. We can appreciate that the claimant may have been annoyed that the effect of his successful judicial review had not been recorded, but we consider that no criticism can attach to the Legal Advisor. Nor can we see that any criticism should attach to the Magistrates for the way that they conducted the hearing. There was material in the court records and in the statements that the claimant had been rude to staff and to the court. The claimant did not accept that; it is not necessary for us to resolve the conflict in the evidence, but simply to record that in this court, perhaps not unsurprisingly, there was no element of discourtesy.

(d) The ascertainment of the outstanding fines owing by the claimant.

24. As we have set out at paragraph 14 above, the court only appears to have had before it information relating to the North East; in the result the sum agreed by the claimant as due was a little more than that actually due on that database and the costs from the appeal at Snaresbrook on 11 April 2011.
25. However there was no information before the court in relation to the other outstanding fines on the two other London databases. As we have set out, the court office should have been in a position to provide the Legal Advisor with details of all the outstanding unpaid amounts whether due by way of fines, costs or penalties.
26. However, it appears, for reasons we explain at paragraph 33 below that it is by no means easy to ascertain these amounts. Although the courts in London have access to the other databases covering London, it appears not to have been possible to ascertain the other amounts outstanding.
27. However, as a defaulter is required in his statement of means to set out his outstanding indebtedness, a defaulter is not in a position to complain if the court acts in ignorance of the other outstanding fines. No blame whatsoever should be attached to the Legal Advisor or the staff in this case, as they are operating a system that is outdated (for reasons we explain below) in circumstances where there are plainly insufficient resources for them to be able to remedy the serious deficiencies of the system by undertaking the further work that is necessary.

(e) The period over which a fine may be discharged.

28. The general rule is that the period over which a fine should be paid must be proportionate; a large fine payable over a long period by small instalments is not desirable. There are a number of cases which set out the rule. In R v Olliver and Olliver (1989) 153 JP 369, after referring to R v Knight (1980) 2 Cr App R (S) 82, R v Nunn ( 1983) 203 Cr App R (S) 203 and R v Hewitt (1971) Cr App R 433, Lord Lane CJ stated:

'Thus it seems to us that on a true reading of the authorities there is nothing wrong in principle in the period of payment being longer, indeed much longer than one year, providing it is not an undue burden and so too severe a punishment having regard to the nature of the offence and the nature of the offender. Certainly it will seem to us that a two-year period will seldom be too long, and in an appropriate case three years will be unassailable, again of course depending on the nature of the offender and the nature of the offence.'

29. That rule is reflected in the Guidance issued by the Sentencing Guidelines Council at paragraph 40 of its Magistrates' Court Guideline:

"40. ….More commonly, a court will allow payments to be made over a period set by the court:

a. if periodic payments are allowed, the fine should normally be payable within a maximum of 12 months. However, it may be unrealistic to expect those on very low incomes to maintain payments for as long as a year;

b. compensation should normally be payable within 12 months. However, in exceptional circumstances it may be appropriate to allow it to be paid over a period of up to 3 years.

41. Where fine bands D and E apply (see paragraphs 34-36 above), it may be appropriate for the fine to be of an amount that is larger than can be repaid within 12 months. In such cases, the fine should normally be payable within a maximum of 18 months (band D) or 2 years (band E)."

30. In the present case, the Order of the court was that the claimant should pay the outstanding amount provided to the court at the rate of £5 per week. As the outstanding amount was thought to be £950, that would have taken the claimant over 3½ years to pay. If all the claimant could have paid was £5 a week this was too long a period.
31. However, unknown to the court was the fact that a further £1660.65 was outstanding as shown on the South Eastern and the South Western databases. This would make the total amount outstanding at the time of the hearing £2610.65. At the rate of £5 a week this would take just over 10 years to pay off.

(f) The serious problems facing fine enforcement in London

32. The facts of this case illustrate the very serious problems that can occur when a persistent offender such as the claimant has substantial fines and orders for costs imposed upon him. There can be little doubt that the courts that imposed the later fines had no idea that significant fines had been imposed on the claimant by other courts and that such significant amounts were outstanding. It is not apparent to us why this was so and no explanation has been made available. It is difficult to accept that something unusual had gone wrong, as the error would have had to have occurred on too many separate occasions. It may well be due to the matters we set out in the following paragraphs.
33. We have been told that the process of obtaining information about outstanding fines is as follows:

i) If there are outstanding fines in one of the four London areas to which we have referred, then to find those accounts, the court office has to log into each database separately and then search that database. Whether this can be done depends on whether there are sufficient members of staff with sufficient time at a court to do this.

ii) As we have stated, accounts within the same database can be consolidated, but this requires them to be identified. Human error, pressure of time and the volume of work means that in some cases accounts that could be consolidated are missed.

iii) The Legal Advisor can access the London databases. However, this requires not only the Legal Advisor to have the time to do this at a busy court, but there are technical limitations as only a certain number of persons can access the database at any one time.

iv) If fines are outstanding in an area outside London, as there is no national database, an enquiry will generally only be made by the court if the offender or defaulter notifies the court in the statement of means or in answer to a question. The enquiry then has to be made by phone.

34. We were told that HMCTS is developing plans to contract out fines collection and enforcement by way of a services contract with a commercial partner; the expectation was that this would bring with it new technology and innovation, with data being held at a national level.
35. The problem is not simply one of fines collection. As the courts have made clear for many years and as is now embodied in the Guidelines, fines should initially be set at a level where they can be paid in a proportionate time. Thus it is essential that proper information is available to the sentencing court.
36. Confidence in the criminal justice system is very severely undermined if fines are imposed in amounts which cannot realistically be discharged; it is particularly damaging in the case of persistent offenders.
37. Given the present very difficult circumstances arising first from an obsolete computer system which appears to be no longer fit for purpose and second severe pressure on the staff and Legal Advisors in the Magistrates' Courts, it is not realistic to envisage matters being remedied through better provision of information about outstanding fines by HMCTS to the court.
38. The only practical remedy is to ask courts to enquire closely before imposing a fine at any enforcement hearing as to whether there are any other outstanding fines and make clear the serious consequences to the offender or defaulter in not providing accurate information. We appreciate the additional burden this will place on legal advisers, District Judges and Magistrates, but we can see no realistic alternative.
39. However to help in that task, the means form provided to the offender/defaulter must be clear. The form with which we were provided does not makes it sufficiently clear that the amount in respect of which enforcement is sought is the total outstanding amount from all courts. As it is apparent that the court has, in current circumstances, to rely on the offender/defaulter providing the information that will enable other databases to be checked, the form should be re-examined. The template of 28 June 2006 makes clear that the Legal Advisor should establish details of the imposition of the fine and of the account history. The Justices' Clerks may wish to reconsider whether it requires any revision, as it was not designed to deal with the present position brought about by austerity and an outdated computer system.

(g) Quashing of the decision. Reconsideration by the Magistrates' Court

40. Now that the facts relating to the outstanding amounts owed by the claimant are clear, the decision of the Magistrates must be quashed. The reasons given by the Magistrates in their evidence to us for not remitting any of the fine was the attitude of the claimant in telling the court he would not pay anything. If £5 a week was all the claimant could in fact pay, the Magistrates imposed payment of an amount over a period which was not proportionate as it was far too long.
41. The matter will have to be re-considered by the South Western Magistrates on the basis of the position at the date of the hearing where a detailed enquiry into the claimant's means will be required. If the amount outstanding is still £2,610.65 and the claimant's means the same, then the court will have to consider whether to utilise the alternative means of enforcement or consider remission of the fines or discharge or reduction of the amounts for costs.
42. Under s.85 of the Magistrates' Court Act 1980 the court has power to remit fines where there has been a change in the financial circumstances of the offender. Under s.165 of the Criminal Justice Act 2003, the court has power to remit fines where the fine has been imposed without an ascertainment of means. The option of remission is not available for costs. As the Guideline states at paragraph 12 of the section on the enforcement of fines:

"Compensation and costs cannot be remitted but, where payment is unlikely or impractical due to the defaulter's means or circumstances, the sum may be discharged or reduced. Victims and claimants should be consulted and given an opportunity to attend the hearing."

43. However it appears that distress warrants have been issued; it is not clear what fines or outstanding amounts the warrants cover. To the extent that some of the fines or other outstanding amounts are covered by the warrants, the court is functus officio: see R v Hereford Magistrates Court ex parte MacRae (1999) 163 JP 433.
44. We wish finally to make it clear that, although HMCTS was at fault in its system not having taken account of the claimant's success on his judicial review in having the judgment of the Crown Court at Snaresbrook quashed, the claimant was at fault in not disclosing the other outstanding fines. That will be relevant to any issue of costs.