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

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

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Business Development Executive / Digital Marketing Executive

£26000 - £35000 per annum: Recruitment Genius: A luxury beauty house with a nu...

Recruitment Genius: Housekeepers - Immediate Start

£8 per hour: Recruitment Genius: This company are currently recruiting new exp...

Recruitment Genius: Head Concierge

£25000 - £28000 per annum: Recruitment Genius: This award winning Property Man...

Recruitment Genius: Content, SEO and PPC Executive

£20000 - £25000 per annum: Recruitment Genius: A fantastic opportunity has ari...

Day In a Page

On your feet! Spending at least two hours a day standing reduces the risk of heart attacks, cancer and diabetes, according to new research

On your feet!

Spending half the day standing 'reduces risk of heart attacks and cancer'
Liverpool close in on Milner signing

Liverpool close in on Milner signing

Reds baulk at Christian Benteke £32.5m release clause
With scores of surgeries closing, what hope is there for the David Cameron's promise of 5,000 more GPs and a 24/7 NHS?

The big NHS question

Why are there so few new GPs when so many want to study medicine?
Big knickers are back: Thongs ain't what they used to be

Thongs ain't what they used to be

Big knickers are back
Thurston Moore interview

Thurston Moore interview

On living in London, Sonic Youth and musical memoirs
In full bloom

In full bloom

Floral print womenswear
From leading man to Elephant Man, Bradley Cooper is terrific

From leading man to Elephant Man

Bradley Cooper is terrific
In this the person to restore our trust in the banks?

In this the person to restore our trust in the banks?

Dame Colette Bowe - interview
When do the creative juices dry up?

When do the creative juices dry up?

David Lodge thinks he knows
The 'Cher moment' happening across fashion just now

Fashion's Cher moment

Ageing beauty will always be more classy than all that booty
Thousands of teenage girls enduring debilitating illnesses after routine school cancer vaccination

Health fears over school cancer jab

Shock new Freedom of Information figures show how thousands of girls have suffered serious symptoms after routine HPV injection
Fifa President Sepp Blatter warns his opponents: 'I forgive everyone, but I don't forget'

'I forgive everyone, but I don't forget'

Fifa president Sepp Blatter issues defiant warning to opponents
Extreme summer temperatures will soon cause deaths of up to 1,700 more Britons a year, says government report

Weather warning

Extreme summer temperatures will soon cause deaths of up to 1,700 more Britons a year, says government report
LSD: Speaking to volunteer users of the drug as trials get underway to see if it cures depression and addiction

High hopes for LSD

Meet the volunteer users helping to see if it cures depression and addiction
German soldier who died fighting for UK in Battle of Waterloo should be removed from museum display and given dignified funeral, say historians

Saving Private Brandt

A Belgian museum's display of the skeleton of a soldier killed at Waterloo prompts calls for him to be given a dignified funeral