Law report: No right of silence in poll tax proceedings: Regina v Highbury Corner Magistrates' Court and another, ex parte Watkins: Queen's Bench Division (Mr Justice Henry), 9 October 1992

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A person cannot rely on the privilege against self-incrimination to justify refusing to answer questions as to their means and as to why they have not paid their community charge when appearing before a magistrates' court on an application, under regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 (SI 438), for their committal to prison for non- payment.

It was no crime not to pay the poll tax, and a defaulter, by appearing in such proceedings, did not thereby risk prosecution or penalty within the meaning of section 14(1) of the Civil Evidence Act 1968.

Mr Justice Henry refused an application by Phoebe Watkins for judicial review by way of orders of mandamus to compel the Highbury Corner Justices, when hearing a committal application by Islington London Borough Council, (i) to hear legal argument as to her compellability as a witness, or (ii) to permit her the assistance of a friend in court.

But although his Lordship denied the applicant the formal relief she had sought, he upheld her complaint that she should, at a committal hearing on 21 April 1992, have been permitted the advice and assistance of a friend in court and should been given an opportunity to cross-examine the local authority's witnesses.

Hugo Charlton (Graham Bash & Co) for the applicant.

MR JUSTICE HENRY said that the justices, in pursuance of their statutory power to inquire into the debtor's means and as to whether her failure to pay community charge was due to her wilful refusal or culpable neglect, had called the applicant into the witness box. But she would not answer their questions for three reasons.

(1) She had prepared her case with the assistance of a friend and wanted her friend to advise her and assist her in court, but the friend had been refused entry to the court.

(2) She had been denied the opportunity to cross-examine the local authority's principal recovery officer on the evidence he had given the justices as to the steps taken by the authority to recover community charge.

(3) She wished to challenge her obligation to answer questions put to her and to address legal argument to the court on her entitlement to rely on the privilege against self-incrimination.

The justices took the view that since the procedure under regulation 41 was merely a means inquiry and involved no point of law, there was nothing on which the friend could assist and no relevant questions to be put to the recovery officer.

On the first issue it was clear, in his Lordship's judgment, following R v Leicester City Justices, ex p Barrow (1991) 2 QB 260, that a litigant in person was entitled, in the interests of fairness, to have the assistance of an adviser in court, unless, in the interests of justice and to maintain order and regulate the proceedings, the court ordered otherwise. The mere fact that the proceedings were, in the court's view, simple and straightforward was not a reason for denying such assistance.

On the second question, although the applicant could not reopen the issue of her liability to pay, a liability order having already been made in earlier proceedings in which she had an opportunity of challenging it, the present proceedings were more than just a means inquiry. The justices had to be satisfied that the charging authority had attempted to levy distress and had found insufficient goods on which to levy it, and as to the precise amount still outstanding and whether anything had been paid since the liability order. These things had to be proved, and were susceptible to challenge by cross-examination.

As for the third (and most important) question, the Common Law privilege against self-incrimination was now set out in section 14 of the Civil Evidence Act 1968, which was declaratory of the Common Law. See Re Westinghouse Electric Corporation (1978) AC 547 at 636 (per Lord Diplock).

Section 14 read: '(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question . . . if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty (a) shall only apply as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law . . .'

That was quite clear, as was its application. Proceedings under regulation 41 were plainly legal proceedings other than criminal proceedings, since they were proceedings for the recovery of unpaid tax. The applicant's answers as to her means and as to why she had not paid would not expose her to proceedings for a criminal offence, because it was no crime not to pay the poll tax, any more than it would have been not to pay rates.

In this context, moreover, 'penalty' clearly meant something in the nature of a fine provided for by statute: see Re Westinghouse (above) at 563-565. There was no provision in regulation 41 for the imposition of any such penalty.

It followed that the privilege against self-incrimination had no relevance to questions asked in civil proceedings for the recovery of unpaid tax. It would not have provided the applicant wih a 'just excuse' under section 97(4) of the Magistrates Courts Act 1980, and she would have been vulnerable, under that section, to be committed into custody for her refusal to give evidence.

Although she should have been allowed to argue this point before the justices, since it would clearly fail it was not right now to order the justices to hear it. Nor was it necessary, having set out the law, to order the justices to permit the applicant the assistance of her friend.