Summary of Judgment
On Friday 22 March 2013, the Divisional Court delivered two judgments relating to five judicial reviews which challenged the procedures for the enforcement of unpaid fines and other monetary penalties in Northern Ireland. It held that, while there is no question as to the validity of the fines or Orders themselves, the practice for dealing with non-payment failed to comply fully with the legislative provisions.
Warrants of Commitment in the Magistrates’ Courts
The judgment in the cases of Michael McLarnon, Gerard McKeown and Leon Chakravarti dealt with the issue of warrants of commitment in the Magistrates’ Courts arising out of the non-payment of fines imposed in those courts.
The Court heard details of the established practice adopted by the Northern Ireland Courts and Tribunals Service (NICTS) when the District Judge (Magistrates’ Courts) (“District Judge”) imposes a fine or other sum adjudged to be paid on conviction pursuant to Article 91 of the Magistrates’ Courts (Northern Ireland) Order 1981 (“the 1981 Order”). Where no payment is made by the due date, the NICTS will write to the defendant before a warrant of commitment is generated for the PSNI to serve. The Court also heard that the PSNI do not have the capacity to execute the number of warrants made by District Judges. Evidence was presented that as of 14 September 2011 there were 36,878 outstanding fine warrants to be executed and that while the PSNI have a statutory responsibility to execute fine warrants as expeditiously as possible other more pressing police activities may sometimes have to take precedence. It was also noted that the Policing Board do not view fine enforcement as a core policing function.
Under the current practice the District Judge will order the defendant to pay the fine within a specific timescale. The Judge is not, however, required to specify the default period of imprisonment or to indicate to the defendant that he is liable to be sent to prison for this default period if he does not pay the fine within the timescale fixed. The Divisional Court said that the decision to issue a warrant of commitment was a judicial decision which required the court to give an offender the opportunity of making representations:
“The power to commit to prison in default of payment of a fine is … the final step to be used only where every other option has been shown to be inappropriate or unsuccessful. All relevant factors must be taken into account before the court concludes that the defendant is guilty of wilful default. The court has a duty to consider other means of dealing with the defaulter. The automatic issue of a warrant of commitment … means that no judicial officer has considered the relevant circumstances of the case including, in particular, matters required to be considered by the statute.”
Lord Justice Girvan, delivering the judgment of the Divisional Court, said that neither the 1981 Order nor the Magistrates’ Courts Rules deal expressly with what procedure should be followed to ensure that the defendant is given an opportunity to make representations before a warrant of commitment is issued. He referred to Article 23(3) of the 1981 Order which requires the defendant to be before the court if it is sentencing him or her to imprisonment or making an order for detention. Lord Justice Girvan said that this only applies to the passing of a sentence of imprisonment which is to be distinguished from the imposition of a period of imprisonment for non-payment of a fine. The Divisional Court concluded that Article 23(3) does not impose a statutory duty to secure the attendance of the defendant in person in court when the court is considering the imposition of a period of imprisonment for non-payment of a fine.The judge then referred to case law which held that while legislation did not require the defendant to be present in person at proceedings at which a magistrate was issuing a warrant of commitment for default, it did not dispense with the requirement imposed by principles of natural justice for the court to give adequate notice to the offender before making any order thus giving him the opportunity of making representations to the court to show cause why an order of commitment should not be made in his or her case. Lord Justice Girvan held that proceedings for the enforcement of a fine which may result in the imprisonment of a defendant in default should be considered to be a criminal charge for the purposes of Article 6 of the ECHR. He concluded therefore that a hearing will be necessary where imprisonment is being considered as a penalty where a defendant has defaulted in the payment of a fine:
“The defendant must be given the opportunity to attend the hearing and to make whatever representations he considers appropriate. If his means justify it, a defendant will be entitled to legal aid …. He must be given the opportunity to take legal advice and to give instructions to a legal representative to appear on his behalf. If the defendant does not appear at the hearing fixed to consider the question of enforcement the court could only proceed in his absence if it is satisfied that the defendant is aware of the listing of the hearing, that he is entitled to apply for legal aid and that he has the right to make representations at the hearing in person or through a legal representative. The defendant must also be aware that the court has the power to impose a period of imprisonment up to the maximum fixed or to issue a warrant of distress. If, as will sometimes be the case, the court cannot be satisfied that a defendant in default is aware of the hearing the defendant must be brought before the court to ensure that he is present at the hearing.”
Lord Justice Girvan also held that the power to issue a bench warrant under Article 25 of the 1981 Order must also be interpreted in a manner which is compatible with and gives effect to the defendant’s Article 6 rights. He said that if the court cannot be satisfied that the defendant is aware of his or her rights, then it should issue a bench warrant to secure the attendance of the defendant before imprisonment is imposed to ensure that he can make his case why imprisonment should not be imposed:“Before the bench warrant is executed, the defendant should be written to at his last known address to inform him or her that a warrant has been issued and that it will be executed unless he pays the sum due on foot of the fine. If as a result of the hearing, the court concludes that the defendant should be given some further time to pay or allowed to pay the balance by instalments on fixed dates, the court should consider issuing a warrant staying the execution of the warrant of commitment until the day immediately after the date by which the balance should be paid or the date on which the first instalment falls due. It should be made clear to the defendant that the warrant of commitment will then fall to be executed. If he or she wishes to make any further representations to the court before that date he or she may do so.”
The judge added that if the defendant does not make any representations the warrant of commitment will take effect and the defendant cannot complain that he or she has not had a fair opportunity to make a case against imprisonment. If the defendant does make representations, he or she may be able to persuade the court that he or she should have further time but by that stage the court may be “justifiably sceptical of his promises to pay”.Lord Justice Girvan held that the system as currently operated and applied breached the law in a number of respects:
“There has been no hearing before a judicial officer before a warrant of commitment is currently issued. The automatic computerised generated issue of warrants is not subject to judicial oversight. The decision to issue a warrant of commitment requires a judicial consideration of the circumstances to ascertain what the appropriate form of enforcement should be. Commitment is not inevitably or always the most appropriate form of enforcement, particularly bearing in mind that imprisonment should be a last resort. The particular circumstances of the individual case must be taken into account. The fixing of the period of imprisonment requires the exercise of a judicial assessment in the circumstances. The current system does not make provision for a hearing at which the defendant may attend and/or make written and/or oral submissions either in person or by a lawyer. The system does not give the defendant an opportunity to make representations and therefore is not compatible with the requirements of natural justice nor is the process compatible with Article 6.”
The Divisional Court concluded that the warrants issued in these cases were not lawful warrants of commitment. Delay in the Enforcement of Warrants of Commitment in the Magistrates’ Courts
The Court then considered the issue of delay in enforcing the warrants. Lord Justice Girvan said that a warrant of commitment issued by the court is a command directed to the relevant police officer to take steps to arrest the defendant and lodge him in prison. He noted that read strictly Article 115(2) of the 1981 Order imposes the obligation on the police officer to bring the warrant back before the District Judge only where he is “unable to execute it”. It does not provide that where the warrant has not been executed within the time fixed or within a reasonable time the officer shall return the warrant to the court for reconsideration: “It links the returning of the warrant to the court with an inability to execute it. This implies an attempt to do so”.
The Divisional Court considered the relevant case law. Lord Justice Girvan said it demonstrates that it is not desirable for the court to leave undefined the period within which the warrants of commitment issued under the 1981 Order should be executed once they are validly issued. He said that the fixing of a clear cut timetable within which they are to be executed enables the police to know precisely the date by which they must execute the warrants and they will then know when they must return to the court to extend the life of the warrant if they have not been executed within the court’s timescale:
“Where the defaulting defendant has been kept informed at every stage of his rights and has been given a fair opportunity to state his case and turn up to court in person or by legal representation to make his case if he continues to default knowing that a warrant has been issued against him, the clear inference will be that he is evading his responsibilities. This being so there seems to be no reason in principle why the court should not specify a period of up to 12 months for execution before the police have to return to the court to renew the life of the warrant. The demands on police and court time are such that there does not seem to be any particular reason why such warrants should require frequent renewal applications. The delay will be of the defendant’s own making and flow from his own evasion of responsibility. He cannot complain of oppression in delay in the execution of the warrant in these circumstances.”
In conclusion, Lord Justice Girvan said that the Court’s analysis of the law on the enforcement of unpaid fines underlines that is cumbersome and not cost effective:“It seems clear that careful thought should be given to the introduction of an effective civilianised system for the collection of fines, the timely use of attachment of earnings and statutory benefits and the establishment of a system more attuned to modern economic realities.”
The judge further commented that pending any more radical reform of the law, the Magistrates’ Courts Rules Committee should urgently consider whether the court rules could usefully be amended to establish the proper practice and procedure for proceedings to enforce payment of fines.Warrants of Commitment in the Crown Court
The second judgment in the cases of George Maye and Paul McHugh dealt with the validity of warrants of commitment arising out of failure to pay monies ordered to be paid on foot of Confiscation Orders made under the Proceeds of Crime (NI) Order 1996 (“the 1996 Order”). Counsel for the applicants contended that the warrants of commitment issued when they defaulted on payment of the confiscation orders were unlawful. It was claimed that no default period had been specified in the orders, the exercise of proper judicial discretion was required in issuing the warrants and the applicants were entitled to be notified and heard on whether a warrant should issue.
Maye’s Application
The Divisional Court concluded that the warrant of commitment issued against George Maye cannot stand because the Crown Court had not fixed and pronounced a default period of imprisonment when the Confiscation Order was made. Lord Justice Girvan said that while the 1996 Order did not require the court to fix a default period of imprisonment when imposing the Confiscation Order, there appeared to be no reason in principle why the court could not, subject to ensuring that there is a fair hearing, impose a default period at any point in time when the confiscation sum remained unpaid.
McHugh’s Application
The Divisional Court concluded that the Crown Court Judge erred in concluding that the term of imprisonment to be served had to be fixed at 18 months. Lord Justice Girvan said that the statutory period was a maximum term and the sentencing judge was bound to consider whether that period or a lesser period should be fixed as the appropriate period.
The Divisional Court also concluded that although the legislative context in these cases was different to the cases dealt with the Magistrates’ Courts, similar principles come into play in the Crown Court when considering whether to put into effect a default order for imprisonment when a defendant has failed to pay monies due under a Confiscation Order.
Lord Justice Girvan noted that, unlike the legislation in England and Wales, the 1996 Order does not contain a statutory provision empowering the prosecution to apply to the court to issue a summons ordering the defendant to appear before the court for a hearing at which the court was empowered to issue a warrant of commitment and to issue a warrant for his arrest if he failed to appear. The judge said that requirements of Article 6 of the ECHR and common law fairness would call for such a procedure. The Crown Court would therefore be bound to conduct a hearing that would give the defendant an opportunity to attend and make representations (and depending on the defendant’s means, with the benefit of legal aid). It would also give the court to find out the circumstances which may call for the extending of time for payment and where an instalment order should be imposed or, if already imposed, should be varied. Lord Justice Girvan said that, furthermore, this would enable the defendant to argue that Crown Court should not make an order of imprisonment immediately until he or she has had an opportunity to make an application to the High Court for a certificate that the realisable property is inadequate for the payment of the amount remaining to be recovered. Such a hearing would also permit the defendant to produce evidence of special circumstances which would help inform the court on whether the issue of an immediate warrant of commitment would be proportionate.
The Division Court concluded that the warrants of commitment in both cases were not validly issued.
Relief and Remedy
The five cases are listed for a further hearing on 19 April to consider issues around relief and remedy.
NOTES TO EDITORS
- This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
ENDSIf you have any further enquiries about this or other court related matters please contact:Alison Houston
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JFTelephone: 028 9072 5921
Fax: 028 9023 6838
E-mail: Alison.Houston@courtsni.gov.uk
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JFTelephone: 028 9072 5921
Fax: 028 9023 6838
E-mail: Alison.Houston@courtsni.gov.uk
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