Here is a selection of cases which
reached national prominence in the media or have become the subject of
full appeals before
the High Court.
1. Richard Northover aged 79.
Summonsed to court on June 14 1990 by Poole Borough Council who sought
to impose £450
in penalties because of his failure
to fill in a community charge form. The court reduced the sum by £200
but imposed a liability
order for £250. He failed
to pay this and was jailed for 30 days in October 1991. He had actually
paid his community charge.
The case was mentioned in the
House of Commons during Parliamentary Questions in October 1991 by David
2. Cyril Mundin, aged 75. Jailed
for one month by Northampton Magistrates in October 1990 for failure to
charge. Released after payment
of the sum by the Daily Mirror.
3. Anne Ursell, 67 suffering from
diabetes and a heart condition was unlawfully jailed by Faversham and Sittingbourne
Magistrates' Court in 1992. This
was despite the court having received a letter from her doctor about her
committal to prison was quashed
by the High Court and is reported in R v Faversham and Sittingbourne Magistrates'
p Ursell(1992) RA 99.
4. George and Doris Smedburg (74
and 80 years) old. Jailed by Ilkeston Justices for 28 days in February
magistrates court had known at
earlier hearings that Mr Smedburg suffered from severe epilepsy and arthritis.
received attendance allowance
and suffering from asthma, rheumatoid arthritis and doubly incontinent
and being wheelchair
bound. Police refused to execute
the arrest warrant and appeal by way of leave for judicial review, backed
for bail. The local
authority claimed the Smedburgs
had refused to pay £600 in outstanding community charge. On appeal
in the High Court it was
revealed that the true amount
was only £349.95 and that the couple had been up to date with an
existing payment arrangement
at the time the warrant was issued.
The case is reported in full in R v Erewash BC and Ilkeston Justices ex
p. Smedburg and
Smedburg (1994) RVR 60, highlighting
defects in the warrant.
5. Dorothy Pittaway, 64
was jailed by Oldbury Magistrates' Court for 14 days in 1994 for non-payment
of community charge.
She was in hospital recovering
from TB at the time of arrest, was an alcoholic and weighed six stone.
On examination by a
police surgeon at the prison
she was discharged from prison into council care. On appeal to the High
Court the prison
sentenced was reduced to one
day, subsequently commuted entirely on intervention by Betty Boothroyd,
MP, and Speaker of
the House of Commons.
6. Marjorie Ribbans, 71, illiterate
and suffering from a terminal cancer was unlawfully jailed for community
charge default by
Barnet Justices in 1996. Committal
was quashed by the High Court and remains authority that justices should
be alert to the a
debtor being illiterate and unable
to respond properly to proceedings. See R v Barnet Justices ex p. Ribbans
7. Elizabeth Jack, 71 of Doncaster
(since deceased). Jailed for 90 days in respect of council tax arrears.
The case was
reviewed by the High Court in
R v Doncaster Justices ex P. Jack and Christison (1999) The Times
May 26 where the court
condemned the maximum 3 month
sentence passed as manifestly excessive. Justices had tried to justify
the order on the basis
of culpable neglect because Mrs
Jack had spent money on having her hair done which justices said should
have been used to
clear council tax arrears. The
bench of justices were also found to have made identical procedural errors
in a similar hearing in
1998 where an unlawful committal
was quashed on appeal.
8. Nellie Copson, 81, jailed in
March 2000 for 14 days for unpaid uniform business rate demands. Currently
(Further details with Ian Wise
Doughty Street Chambers)
9. England and Wales remain the
only countries in Europe to continue to jail people for local tax default.
imprisonment for debt in 1987.
Over the last ten years there have been many cases of people wrongly jailed
by magistrates for
failure to pay local taxes. Many
of these have been pensioners.
10. The problem of jailing of
elderly people for failure to pay local government taxes was first identified
in the 1980s by Audrey
Harvey of Shelter (Pamphlet "In
Court for Rates and the Community Charge" Shelter 1987). She discovered
defaulters were being committed
to prison without legal aid or proper procedures being followed. Sometimes
the court would
merely detail an elderly person
for an afternoon or until the court rose (no power in fact existed to do
this); on other occasions
longer sentences were imposed.
Harvey predicted the situation would worsen with the community charge.
11. Evidence shows cases of pensioners
being jailed turn out not be an aberration of the community charge but
problem with the enforcement
of all four systems of local taxation levied in England and Wales in the
last 10 years
(rates,uniform business rates,
community charge and council tax).
12. In over 90% of the appeals
heard to date, the decisions of justices to commit debtors
have been quashed - a success rate
unparalleled in any other area
of judicial review. All too often the successful applicants have turned
out to be debtors who are
elderly, people with physical
or mental disabilities or single parents on low incomes.
PROVISIONS FOR COMMITTAL FOR LOCAL
13. Provisions for the commitment
of a local tax debtor are set out in Regulations 47 and 48 of the
(Administration and Enforcement)
Regulations 1992 SI 613, Regulations 41 and 42 of the Community Charges
and Enforcement) Regulations
1992 as re-enacted, with amendments following the case of R v Poole Justices
ex p. Benham
(1992)156 JP 157. Modelled on
ss 102 and 103 of the General Rate Act 1967, analogous procedures also
non-domestic rating under Regulation
16 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists)
1989 SI 1015. These are the regulations
which would have to be amended in order to stop pensioners being sent to
local tax default.
14. It is important to note that
imprisonment for tax default is not a punishment but a coercive measure
only to be applied
where there is proof that assets
to discharge a debt exist (although courts have all too frequently failed
to understand this crucial
proviso). Sentences are not intended
to contain a deterrent element.
15. The power to apply for the
imprisonment of a local tax defaulter only arises where a local authority
has failed in a levy of
distress against the goods of
the debtor; this is a matter which must be proved to the court as a prerequisite.
16. Regulation 47(2) sets out
the procedure the court must follow when faced with an application for
committal: "On such
application being made the court
shall (in the debtor's presence) inquire as to his means and inquire whether
the failure to pay
which led to the liability order
being made against him was due to his wilful refusal or culpable neglect."
"If (and only if) the
court is of the opinion that
his failure to pay was due to his wilful refusal or culpable neglect it
may if it thinks fit:
a. issue a warrant of commitment
against the debtor
b. fix a term of imprisonment
and postpone the issue of the warrant until
such time and on such conditions
(if any) "as the court thinks just."
17. The power to make an application
for committal of a debtor only arises after a local authority has sought
levy distress; this is an essential
prerequisite to be proved before the court before any power to seek a committal
18. Depending on the results of
its inquiries, magistrates at a committal hearing have a number of options
where a debt is found
to be outstanding. They may:
a. Issue a warrant of commitment
b. Postpone the issue of a warrant
of commitment suspended on terms (invariably payment by instalments)
c. Remit of the whole or part
of the debt
d. Adjourn the application
e. Make no order (the local authority
having a right to renew the application
where circumstances are changed)
19. Unfortunately there is much
evidence to suggest that magistrates do not properly understand their duties
responsibilities and these options
are not explored. Few debtors are represented and very limited legal aid
provision was only
made in 1997.
20. The Marjorie Ribbans case
recorded above, she was illiterate and suffering from a terminal cancer,
is now authority for the
principle that if justices are
aware that a debtor may be illiterate they are obliged to make some investigation
into the whether
the proceedings have come to
the attention of the debtor. Interestingly, this is not a new problem.
Over sixty years ago the
Money Payments (Justices procedure)
Act 1935, which had the effect of ensuring better notice of proceedings
and allowing for
inquiries into means halved the
number of persons imprisoned for rates default from 3,089 in 1932 to 1,464
21. This review of cases in the
last 10 years does not include examples where pensioners have been jailed
freed on bail granted by the
High Court with the justices or the local authority subsequently settling
cases by way of consent.
Accurate figures are hard to
come by no estimate is available as to the precise number of elderly people
jailed for sums owed in
local taxes or of the number
of cases where suspended warrants have been issued or where debts have
been remitted entirely.
22. In practice, some courts appear
to take the view payment may be achieved by committing a pensioner in the
belief that a
family member or a friend will
provide the money to secure the release of the debtor from prison. Numerous
known to the author. Apart from
such an event demonstrating that the debtor does indeed lack the means
to pay and that the
means inquiry has been flawed,
this practice is contrary to the analogous principles in fine enforcement
as in Charalambous
(1984) Cr App Rep 389 whereby
imposing a fine which is paid by other family members is unjust.
23. Certain dwellings occupied
by certain elderly and disabled residents are already wholly exempt from
council tax in
recognition of the difficulties
that the elderly may face. There seems no reason why similar intelligent
reforms could be made
with respect to the enforcement
of local taxes against those who have failed to pay. The system has shown
repeatedly that it
cannot distinguish being those
who can and cannot pay and those who blameworthy and those debtors who
24. Although 100% council tax
benefit exists for pensioners in receipt of income support, there are many
others who find
themselves on the threshold of
poverty and those who, for whatever reason, cannot meet ordinary household
cope with local authorities.
Whilst there have been substantial moves to change discrimination on grounds
of sex and race, a
degree of social prejudice
clearly exists against the poor, including the elderly poor. What else
can explain the failure to
conduct inquiries or the imposition
of the maximum 3 month sentences on people with no means?
25. One of the biggest problem
is that justices become emotionally involved in committal proceedings.
The author has often
witnessed cases where justices
seem to take non-payment and the often inarticulate statements by the persons
before them as
defiance in the face of the court.
The temptation develops to impose imprisonment as a punishment. This danger
in R v Watford Justices ex p
Hudson (1999) CO/4261/98 where Ognall warned a magistrates' court
"....must always be
scrupulous in not becoming exasperated
for allowing what they perceive as a degree of fecklessness in the person
to cloud their judgement as to
what is fair and proper." A study of the psychology in decision making
in this area is perhaps long
26. Ultimately, should our prison
system really be destination for pensioners who are often suffering from
illness or disability ?