Wandless, R (on the application of) v Halifax Magistrates' Court & Anor

Mr Stephen Wandless is 42 years of age, his date of birth being 6 July 1966. He currently lives at an address in Woodlands Grove in Halifax. He is disabled. In 992 he was injured in a serious industrial accident resulting in the loss of several fingers. He is currently unemployed and in receipt of some £55 to £56 a week in incapacity benefit. In the past he has been the occupier of a number of other properties. He originally owned a property in Gatrix Lane, Sower Bridge. In or about 1995 he sold that property and bought a house in Ashville Street Halifax. He sold this house in or around 2005 and moved into the present address which is privately rented accommodation. His case is that he used some £20,000 of the £25,000 proceeds of sale he received for the Ashville Street house to pay off his debts.

This is an application by Mr Wandless for permission to apply for judicial review with the case being listed for the substantive hearing to follow if permission be granted. The review sought is of the order for his committal to prison for 90 days made on the 8^th October 2008 by the Defendant Calderdale Magistrates Court for wilful refusal to pay arrears of Council Tax in relation to his various properties. As I have already indicated, a complication in this case is that the applicant has had a number of different homes. The arrears were alleged to be some £4,516.26 going back to 1995. I hesitate to say anything other than alleged. There is in the papers before me a copy warrant for the arrest of the Applicant for non payment of Council Tax dated 21 April 2006 in which the amount originally stated to be due is the handwritten figure of £4,663.31. A line has been superimposed crossing out this figure and a different handwritten figure inserted of £4,516.26. The circumstances in which this alteration came about are wholly unclear. According to the Warrant, these arrears allegedly extended back to 1995 for discrete council tax years: 1995/996; 1996/1997;

The Applicant was unrepresented at the hearing. He says the hearing was perfunctory and lasted no more than 15 minutes. There is before me a witness statement from Alexander West, Legal Team Manager of the Defendant Court, in which it is accepted that in total the hearing could have been no more than 30 minutes in total. Thus paragraph 7 of the statement reads:

Following the issue of the claim form in these proceedings the Applicant was granted bail on the 10^th November 2008 by Timothy Brennan QC sitting as a deputy High Court Judge. The matter now comes before me, as a rolled up hearing, pursuant to the order of Dobbs J. of 9^th February 2009. Her order reads as follows:

“1.

The Defendant is to serve an Acknowledgment of Service within 14 days together with any

documentation relied on.

2.

Permission to be decided in open court, both parties appearing.

3.

Substantive hearing to follow should permission be granted.

4.

Skeleton arguments to be lodged no later than 48 hours before the date of the hearing."

It is an unfortunate aspect of the hearing before me that although I have had the benefit of helpful submissions made by counsel on behalf of the Applicant, there has been no appearance by any other party. In particular the Defendant Magistrate Court has not served any acknowledge of service, notwithstanding the order of Dobbs J, although as I have indicated a witness statement has been filed by Mr West on the Defendant’s behalf. The Interested Party, the Council, has taken no active steps in these proceedings at all although there is in my papers a bundle of material which I am told was sent by the Council to the Applicant’s solicitors and which appears to be taken from their records relating to the Applicant. However this material has not been formally produced by any witness statement from the Interested Party and has not been attested to, by any statement of truth.

I have a second witness statement from the Applicant’s solicitor, Carita Thomas, of yesterday’s date, indicating that she has over recent days contacted both Mr West and Interested Party by telephone but this has not produced any response to this court by either party other than the witness statement from Mr West to which I have already referred, itself dated 1^st April 2009.

The consequence is that save for the evidence produced on behalf of the Applicant through the witness statement of his solicitor and that produced through the statement of Mr West on behalf of the Defendant I have no other material properly laid before evidencing the circumstances in which the order under challenge was made and the nature and contents of the hearing before the Magistrates.

The opening paragraphs of Mr West’s statement read as follows:

He then in the subsequent paragraphs purports to set out what the notes of the hearing record, what the claimant indicated at the hearing , what were the results of the deliberations of the Justices, what their findings were and why allegedly they considered custody was the only viable method of enforcement. It is of note however that Mr West does not purport himself to state how outside the note of the hearing which is annexed to his statement, he has any source of knowledge of the matters to which I have referred. He was not one of the Justices. He may or may not have been the Justices’ clerk at the time of the hearing although there is some suggestion in an unattested note of the hearing, apparently made by the Interested Party which was part of the material sent to the Applicant’s solicitor, that he may have been. However, Mr West does not say he was, on the face of his statement. Significantly there is no affidavit or witness statement from the Justices themselves, for example from the Chairman.

I say at this juncture that I grant permission in this case and I now turn to deal with the claim for judicial review as a substantive hearing.

Since the evidence from the Defendant Justices is so confined, it is convenient if I set out in full what in my judgment appears to be the sole source of the evidence on behalf of the Defendant as to what happened at the hearing, namely the handwritten note of the hearing annexed to Mr West’s statement. It is a short two page document. At the top of the first page on the right hand side is a reference to two properties, namely 4 Alfred Street Halifax and 34 Gatrix Lane S/B (Sower Bridge). The note is headed “CMBC v. Stephen Wandless”, and continues:

It is not entirely clear which part of the note refers to submissions or evidence made on behalf of the Interested Party and which is a record of submissions or evidence being given by the Claimant. However it is relatively clear that the Claimant’s position was that he was saying he thought he was entitled to rebates and that he was offering to pay £10 per month out of his benefits.

The only other source of the matters referred to by Mr West as to the amount and nature of the alleged arrears, which has been produced by the Defendant through Mr West, is the copy warrant for the arrest dated 2006 to which I have already referred. This however does not purport to explain how the arrears are made up. It asserts an amount of council tax of £143.47 together with amounts for the cost of distress, the warrant, the committal, with a total “now due” of £290.97, plus arrears of £4,372.34 less an amount paid, the figure for which is unclear, and a total now due of £4,661.31 crossed out, as I have already indicated, and a figure of £4,516.26 written in. I should record that the note of hearing sent to the Claimant’s solicitors by the Interested Party but which has not been properly put in evidence, does assert that the author of the note:

There is one final document to which I must refer which is annexed to Mr West’s statement on behalf of the Defendant. This does appear to record the decision and reasons of the Bench for making the custody order. In the box headed “Is there Culpable Neglect and/or Wilful Refusal”, culpable neglect is crossed out. After the instruction “If yes record the reasons” the following appears in handwritten form:

Then at the bottom of the document, to the question “Is there an alternative enforcement option available/viable other than custody?” the answer “No” is indicated, following which there is in the box headed “Decision and Reasons (custodial powers only available when all other methods of enforcement have been tried or considered), the following handwritten:

“The bench feel that there is no alternative to custody in this case. It is a blatant case of wilful refusal”

This has been signed by Chairman J. Poole.

In between the two boxes to which I have referred there are other boxes under the heading “Consider the following enforcement options” and the instruction is given to tick the appropriate reasons box if an option discounted. These boxes are completed as follows:

It is these replies which appear to be the source of the following assertions of fact appearing in paragraph 11 of Mr West’s statement:

I would highlight that on behalf of the Defendant it is there being advanced as a justification for discounting other enforcement methods that the Claimant had no funds or assets of any sufficiency. As will be seen in due course this concession is fundamental in my judgment to the undermining of the custody order which was made in this case. In this context I should record what appears in paragraph 12 of Mr West’s statement which appears to be an expansion upon the reasons for the making of the custody order already recorded in the box referred to above. Paragraph 12 reads as follows:

“The Defendant therefore considered that custody was the only viable enforcement method. The Defendant considered that the maximum penalty of 90 days was appropriate, having regard to the amount outstanding, and the number of years which the Claimant had wilfully refused to pay his debt”.

Let me turn to the legal framework within which the Justices were operating when making the order they did and the jurisprudence which exists on how they should have approached their task. In so doing I am mindful of the general overriding principle applicable to any application for judicial review of an order for committal, cogently expressed by Lord Greene M.R. in Gordon v Gordon [1946] 1 All ER 247, 250 in these terms “ ….as orders for committal ….affect the liberty of the subject such rules as exist in relation to them must be strictly obeyed. However disobedient the party against whom the order is directed may be unless the process of committal …..has been carried out strictly in accordance with the rules he is entitled to his freedom.”

The Defendant’s powers to commit the Claimant to prison for failure to pay Council Tax are to be found in regulation 47 of Part V1 of the Criminal Tax (Administration and Enforcement ) Regulations 1992 (as amended). Regulation 47 states so far as is material:

…

(7) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed 3 months, unless the amount stated in the warrant is sooner paid;..."

It follows from the terms of subparagraph (7) of the regulation that the Magistrates in the present case sought fit to impose the maximum period of immediate imprisonment available under the regulations. This in itself is a matter which would require detailed justification in the evidence laid before this court. Full and due regard in this context must always be had to the principle of proportionality (see the judgment of Laws J., as he then was, in Highbury Corner Magistrates’ Court ex parte Uchendu (1994) 158 JP 409,412 A- B)

The following principles emerge from these governing regulations and the cases to which I was helpfully referred by Mr Wise.

First the power to commit is plainly intended to be used as a weapon to extract payment, rather than to punish. A helpful expression of principle is to be found in the judgment of the Divisional Court in R v. Wolverhampton Magistrates Court, ex parte Mould [1992] RA 309 at 329 -330, per Kennedy LJ:

It also follows from this basic principle that immediate imprisonment should be regarded as the last resort for the purposes of enforcing payment. Alternatives to the immediate issue of a warrant of commitment should always be considered first. Subparagraph (3) of regulation 47 itself contemplates a form of suspended order by postponing the issue of a warrant on conditions.

Secondly before there can be any consideration of whether to issue a warrant, subparagraph (2) of the regulation has to be satisfied, namely an inquiry as to means and whether the failure to pay has been due to wilful refusal or culpable neglect. The inquiry as to means is a crucial part of this process. This involves a thorough inquiry not only into what the debtor’s sources of income are but what is his disposable income. A number of authorities were cited by Mr Wise for this proposition. I refer in particular to the observations, again of Laws J., in R v. Stafford Justices ex parte Shaun Thomas Johnson (16 March 1995):

Moreover a discrete inquiry into means for the purposes of making a finding of wilful refusal/culpable neglect, must be made in respect of each discrete liability in cases where the application to commit is made, as in this case, in respect of monies owing for a number of different council tax years. Under the regulatory regime to which I have referred, before regulation 47 can come into play there has to have been a liability order made under regulation 34 and further an attempt to levy distress under regulation 45 in respect of a remaining liability under such order. The effect of regulation 47(2) (3) is to require a discrete inquiry into the Defendant’s conduct and into whether there has been wilful refusal /culpable neglect in respect of each discrete liability. The point is well made in the following passage from the judgment of Tucker J in Middlesborough Justices, ex parte Lisa Marie Readshaw [1998] EWHC Admin 973 at paragraph 11:

Furthermore even if a finding of wilfulness has been made so as to give rise to the power to commit, a proper inquiry as to current means must be conducted before that power can be properly exercised so as to ensure that it is not being used simply to punish. As Kennedy LJ said in the passage from ex parte Mould set out above, if a debtor currently has no means and no real prospects of obtaining any, custody can only punish. Put another way: the inability to pay is no reason to make a committal order. I agree with the sentiments expressed by Collins J in Doncaster Justices ex parte Elizabeth Jack [1999] EWHC (Admin) 427 at paragraph 24:

I have already referred to the need, if any order for committal is to be held to have been lawfully issued, for the applicable governing rules and principles to be strictly adhered to. In the context of the present case this means in addition to the matters already referred to, that there has been proper proof of the sums said to be owed and the Magistrates have satisfied themselves of the exact sums owed. I was referred to the following observations of Auld J., as he then was in R v Erewash Borough Council and Ilkestone Justices, ex parte Smedburg and Smedburg [1994] RVR 40,63:

Finally on the question of governing principles, although I accept that the standard of proof applicable to a finding of wilful refusal/culpable neglect is the civil standard of the balance of probabilities, nonetheless I equally accept that since an application for an order for committal concerns the liberty of the individual, there is a requirement that the evidence to satisfy that standard should be of a sufficiently high cogency. In this regard I was referred to the observations of Tucker J. in Readshaw, above, at paragraph 11 where he referred to a “heavy burden of proof” and to those as follow of Sedley J, as he then was, in R v South Tynside Justices ex parte Martin, 31 July 1995:

Having regard to the above stated principles, I am satisfied that this order for committal must be quashed as having been unlawfully made. My reasons are as follows.

In my judgment on the evidence before me there was a total failure by the Justices properly to enquire into the Claimant’s means as required by regulation 47(2) before making a finding of wilful neglect. This patently was a perfunctory hearing given the time spent upon it, and there is nothing to suggest for example that the Justices ever investigated in any detail, if at all, the disposable income available to the Claimant at the relevant times of his failure to pay. There is moreover nothing to suggest that there was such a proper inquiry at to means and investigation into the Claimant’s conduct with respect to each discrete liability for each particular council tax year. There appears simply to have been a global finding of wilful neglect without any particularisation.

Thus given in my judgment there was no proper compliance with the material regulation for the purposes of the finding of wilful neglect it must follow that that finding was itself unlawful and hence the committal order which was dependent upon such a lawful finding, must thereby be rendered unlawful.

Moreover on the face of the evidence before me it is wholly unclear whether the Justices ever sought to satisfied themselves that the amounts said to be owed, had been proved to be owed in respect of each particular council tax year, and to make proper findings as to what those exact amounts were. I have already referred to the differences in the figures as between the copy summons, the arrest warrant in its original form, and the warrant with its handwritten amendments. In addition my attention has been drawn to features of the, albeit unattested, material sent by the Interested Party to the Claimant’s solicitors purportedly being the account history for the material council tax years which apparently disclose a number of contradictions as to figures both internally and when compared with that set out in the other documents to which I have referred. In respect of the alleged liabilities for 2002 and 2003 there are two accounting statements suggesting an overlap and a degree of double accounting. On a fuller investigation it may well be that this assessment of first impression may be shown to be wrong. The important judgment I make for present purposes is that there is nothing in the evidence before me relating to the conduct of the hearing or the making of their decision in this case, to demonstrate that the Justices ever made discrete findings as to the exact amounts which had been proved to be owing in respect of each alleged liability or ever satisfied themselves that the amounts for which the Claimant was committed to custody were in fact correct. In my judgment they failed to make any such findings as by law they were required to do before the Claimant could be lawfully committed.

However even if the Justices had been entitled to make the finding of wilful neglect which they did and they had made the requisite findings as to the amounts owed, I am equally satisfied that the decision to issue an immediate committal order was in any event unlawfully reached. Given the overall time devoted to the hearing, I do not consider there can have been any proper enquiry as to the Claimant’s means at this stage of the process. But even if there were, the Justices cannot properly have considered the available alternatives short of immediate committal before making the committal order. I find it remarkable that if as appears to be the case put forward by Mr West on behalf of the Defendant that as at the date of the hearing the Justices found that the Claimant had no funds, no assets and was not in employment, that the Justices were then able to conclude that it was appropriate to commit him immediately to prison – and then for the maximum term available. I repeat the important principle well established in the case law that an immediate order for committal is to be made only as a last resort and then only as a means to extract payment and not as a punishment for non-payment. As Collins J. said in Jack, an inability to pay is no reason to make a committal order. Here the Claimant had made an offer to pay by instalments out of his available state benefits, albeit in a very modest amount. It is wholly unclear to me why this offer was rejected, as it apparently was, out of hand.

I have to say that the conclusion I have come to is that the Justices must at this stage of their decision making process have entirely failed to have in mind that the purpose of a committal order is as a method of last resort to extract payment - in circumstances where they are satisfied that the debtor has the means to pay - and cannot lawfully be used as a mean of punishment. The very strong impression I have from the material before me completed by the Chairman of the Bench is that unfortunately the Justices were diverted down the road of viewing this case as one deserving punishment rather than concentrating upon a proper consideration of determining a practical means of extracting payment. I am also of the view that the Justices must have ignored the principle of proportionality when imposing the maximum term which they did. The imposition of the maximum term of 90 days is out of all proportion to any rationale assessment of the Claimant’s culpability on the material before me, in my judgment.

For all these reasons I quash the warrant for committal made against the Claimant.

Mr Wise further seeks an order, either by way of mandatory order or declaration, in the light of my findings that the matter be remitted to the Justices with a direction or indication that the Justices, in exercise of their powers under regulation 48(2) of the 1992 Regulations, should remit any liability in respect of the amounts for which the committal of the Claimant has been sought. I am not prepared to go this far in usurping the function of the magistrates if they are asked at some future date to consider exercising their powers under regulation 48(2). I do however make the following observation, namely that in the light of my findings and the express assertion made on the Defendant’s behalf by Mr West in paragraph 11 of his witness statement that the Justices proceeded on the basis that the Claimant had no funds and no assets, and having regard to the fact that the Claimant has already served 34 days’ imprisonment pursuant to a warrant for committal which this court has quashed as unlawful, the Justices may well consider exercising their power under regulation 48(2) if this matter were to back before them, in order to remit all or alternatively part of the amounts to which the application for committal relates.

Mr Wise seeks to make application for costs against the Defendant and/or the Interested Party. It is of course not usual for costs to be made against Justices who do not attend applications against them for judicial review. It is only if the court concludes that the Justices have done that which is so wholly unreasonable as to call for strong disapproval that a costs order should be made. In any event Mr West in his witness statement has asked that the Defendant be given an opportunity to make submissions if the court were minded to make such an order. What I propose to do is to give Mr Wise the opportunity on receipt of my approved judgment to make written representations in support of his application and then to give both the Defendant and the Interested Party the opportunity to respond in writing to his application. I will then make a decision on the papers.