Law Report: Defaulter committed in his absence: Regina v Northampton Justices, ex parte Newell - Court of Appeal (Lord Donaldson of Lymington, Master of the Rolls, Lord Justice Nolan and Lord Justice Scott), 27 July 1992.

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Where, in the presence of a community charge defaulter, justices had postponed the issue of a warrant of commitment against him, under regulation 41(3)(b) of the Community Charge (Administration and Enforcement) Regulations 1989, on condition that he pay the outstanding amount, and he then failed to pay it, the justices were entitled to issue the warrant at a later hearing in the defaulter's absence, so long as he had been notified and given an opportunity to make representations.

The Court of Appeal refused an application by Ronald William Newell for judicial review to quash a decision by the Northampton Justices to issue a warrant committing him to prison for 80 days for non-payment of the Community Charge.

David Matthias and William Bojczuk (Duffields, Chelmsford) for Mr Newell; James Findlay (Borough Solicitor) for Northampton Borough Council.

LORD DONALDSON MR said that at a hearing on 16 October 1991, attended by Mr Newell, the justices, in accordance with regulation 41(2), had inquired into his means and into whether his failure to pay, which led to the liability order being made against him, was due to his wilful refusal or culpable neglect.

They found that it was and, in accordance with regulation 41(3)(b), fixed a term of 90 days' imprisonment (the maximum term) but postponed the issue of the warrant on condition Mr Newell paid pounds 10 per week to the authority.

Mr Newell fell into arrears. On 24 January 1992, the authority served him personally with a letter notifying him that unless he paid the outstanding debt he was required to appear before the justices on 6 February.

He failed to appear on that date and the justices proceeded in his absence. They were satisfied that he had had notice of the hearing and that he was pounds 80 in arrears under the instalment conditions and concluded that they were justified in issuing a warrant of commitment. The warrant was issued on 8 March, for 80 days' imprisonment, giving credit for the instalments already paid.

Mr Newell sought judicial review on that ground that the justices had no jurisdiction to issue the warrant under regulation 41(3)(a) unless the debtor was present in court at the time and they had inquired into his current means under regulation 41(2).

But that was to treat a decision to postpone the issue of the warrant as if it were equivalent to a refusal to issue it, in which case it would indeed be necessary to make a fresh application.

It must be implicit in regulation 41(3) that if the conditions were not complied with, the justices would then have to consider whether the postponement should be brought to an end.

It was thus regulation 41(3) and not 41(1) which empowered the justices to entertain an application for the issue of a commitment warrant whose issue had previously been postponed.

The justices were not obliged to have a repeat of the initial hearing, so long as the local authority could prove the breach of the condition.

Natural justice required the debtor to be notified of the hearing and given an opportunity to be heard, but he did not have to be present when the committal order was made.

LORD JUSTICE NOLAN and LORD JUSTICE SCOTT gave concurring judgments.

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