Law Report: Poll tax debtor wrongly denied friend's help: Regina v Wolverhampton Stipendiary Magistrate, Ex parte Mould - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Waterhouse), 4 November 1992

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A community charge debtor, against whom the charging authority was seeking an order committing him to prison for non- payment, might have a greater part to play in the ensuing magistrates' court proceedings than merely giving evidence about his means and about why he had not paid. He might wish to challenge evidence given against him and make submissions to the court, and accordingly it was wrong to refuse his request for the assistance of a friend in court on the basis that he would merely be giving evidence.

The Queen's Bench Divisional Court granted an application by Paul Mould for judicial review to quash the decision of the Wolverhampton Stipendiary Magistrate, on 25 March 1992, to issue a warrant of commitment under regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 (SI 438), imprisoning him for 30 days for non-payment of his community charge. The case was remitted for rehearing.

Rambert de Mello and Hugo Charlton (Tindallwoods & Millichip, West Bromwich) for the applicant; Richard McManus (Solicitor, Wolverhampton Metropolitan Borough Council) for the charging authority; the magistrate did not appear.

LORD JUSTICE KENNEDY said the charging authority had obtained a liability order against the applicant in the sum of pounds 456 in respect of community charge arrears.

After bailiffs had failed to find sufficient goods of the applicant upon which to levy an amount by distress, the charging authority applied for his committal to prison under regulation 41.

At the hearing, the applicant asked if a friend could assist him. After the applicant had been identified, the court clerk asked him if he had understood the proceedings thus far. He said he had.

The magistrate then considered his request for assistance in the light of R v Leicester Justices, ex p Barrow (1991) 1 QB 260 and refused it on the basis that the applicant would simply be required to give evidence on oath as to his personal circumstances during the relevant period, that to do so he did not require assistance from another, and that it would be undesirable for him to be prompted.

The applicant was then called into the witness box and examined by the clerk. He offered to pay his outstanding community charge at pounds 1 per week, which the magistrate considered derisory. The charging authority's representative then presented his case, but did not give his information on oath. The applicant complained that he was given no chance to cross-examine the charging authority's representative.

The magistrate having considered all the information, concluded that the applicant was guilty of culpable neglect and committed him to prison for 30 days.

In his Lordships' judgment, while the magistrate clearly had power to refuse the applicant's request for the assistance of a friend, he could only do so for a good reason. His reason was that the applicant was only there to give evidence on oath as to his personal circumstances. If that was right, then his refusal to allow the applicant the assistance of a friend was hard to fault.

But it was clear from the wording of regulation 41 that the applicant, as a community charge debtor, might well have a part to play going beyond the mere giving of evidence.

First, he might want to challenge any evidence given by the charging authority as to his indebtedness, and as to the steps taken to levy the amount by distress, although in fact no such evidence was given in the instant case and, if R v Dudley Magistrates, ex p Blatchford (1992) RVR 63 was correctly decided, no such evidence was required.

Second, he might wish to challenge any information given to the court as to his means from any source other than himself. Regulation 41(2) was clearly so worded as to permit such evidence.

Third, he might wish to submit to the court that the failure to pay which led to the liability order was not due to his wilful refusal or culpable neglect.

Fourth, he might wish to submit that, even if it was found to be due to one of those causes, the court should not issue a warrant of commitment, preferring, if fixing any term of imprisonment, to make use of the power set out in regulation 41(3)(b), to 'postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just'.

Accordingly, the magistrate's faulty appraisal of the nature of the proceedings led him to the unsustainable conclusion that the applicant's request for the assistance of a friend should be refused.

While such assistance could always be refused or terminated for a good reason, none was shown here.

His Lordship then went on to reject the applicant's second main argument, that no warrant of commitment should have been issued on 25 March 1992, because the charging authority's application under regulation 41 was out of time.

Section 127 of the Magistrates' Courts Act 1980 provided that 'a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within six months from the time when the offence was committed, or the matter of complaint arose'.

The applicant's case was that the authority was making a 'complaint' within the meaning of that section.

But regulation 41 was invoked without a complaint, so section 127 did not apply, and the authority's application to invoke regulation 41 was not time-barred. MR JUSTICE WATERHOUSE agreed.

Paul Magrath, Barrister