Law Report: Community charge payer wrongly imprisoned

Regina v South Tyneside Justices, ex parte Martin; Queen's Bench Division (Mr Justice Sedley); 31 July 1995

Justices exercising their power to commit a community charge payer to prison for failure to pay his community charge should apply either a criminal standard of proof or a high civil standard when they consider whether the failure was due to his wilful refusal or culpable neglect.

Mr Justice Sedley quashed decisions of the justices to commit the applicant to prison for breach of conditions relating to payment of community charge.

The applicant appeared before the justices on two occasions for failure to pay community charges of pounds 288.63 and pounds 283. After a perfunctory means inquiry a warrant for his arrest was issued and postponed on conditions. After a fuller inquiry on breach of the conditions the applicant was committed to prison.

The applicant applied for judicial review on the grounds that there had been no or an inadequate means inquiry at the two hearings, such inquiry being an essential pre-condition of a finding of culpable neglect to pay under the Community Charges (Administration and Enforcement) Regulations 1989, and that the justices when deciding whether the applicant was guilty of culpable neglect applied the wrong standard of proof. The applicant submitted that the correct standard of proof was proof beyond reasonable doubt, the standard in criminal process, and if the civil standard was appropriate, a bare balance of probability would not suffice and that a high degree of probability was required.

Ian Wise (Clyde Chappell & Botham) for the applicant.

Mr Justice Sedley said that regulation 41 permitted justices to issue a warrant of commitment or to postpone doing so on terms, if but only if the court, following an inquiry (a) into the debtor's means and (b) into whether the failure to pay was due to wilful refusal or culpable neglect, was of the opinion that the failure was due to such refusal or neglect. The justices here reached their opinion that the applicant was guilty of culpable neglect to pay by considering the evidence only on the balance of probability.

Justices who had reached the point of entertaining an application to commit an individual to prison for non-payment of community charge by reason of wilful refusal or culpable neglect were entertaining criminal process. The process had both a coercive and retributive aspect.

It was necessary for justices to be satisfied not merely on the balance of probability but so that they were sure following a proper means inquiry that the debtor's failure to pay had been due to his or her wilful refusal or culpable neglect before they could issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant.

If that was wrong and if the proper standard was a civil standard, what was at stake for the individual made it inescapable that only the highest standard of probability was commensurate with the exercise of the power of committal or of fixing a term of imprisonment.

The justices applied neither such standard. A bare balance of probability was not a sufficient standard and their decisions could not therefore stand.

As to whether proper means inquiries were conducted, the purpose of a means inquiry was to decide whether wilful refusal or culpable neglect had been proved. That depended not only on discovering what the debtor's income, outgoings, assets and liabilities were but proceeding to decide whether he could and should have paid more than he had.

The justices' consideration of some of those issues was a long way from a tenable basis for a finding of culpable neglect, especially on a criminal standard of proof. The inquiries produced data not capable by themselves of founding a finding of culpable neglect to pay, even on the lower standard of proof applied by the justices. The justices' decisions would be quashed.

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