CO/3738/2008 
Neutral Citation Number: [2009] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 20 February 2009
 
B e f o r e:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE DAVID CLARKE 
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Between: 
TERRY LOUIS 
Claimant

v 

EALING MAGISTRATES' COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Arthur Blake (instructed by Vickers & Co., Ealing) appeared on behalf of the Claimant
The Defendant was not represented
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J U D G M E N T
1.	LORD JUSTICE SCOTT BAKER:  The claimant is 37 and seeks judicial review of a decision of 25th March 2008 of the Ealing Magistrates committing him to prison for 112 days for non‑payment of a fine. 
2.	The fine was imposed by the Isleworth Crown Court on 15th February 2007, following the claimant's plea of guilty to eight offences of packaging goods with a sign either identical to or likely to be mistaken for a registered trademark.  The fine was £200 for each offence, making a total of £1,600.  The fine was to be paid at £50 per week with the first payment on 27th April 2007.  A period in default of 112 days was fixed.  That seems to us to be surprising because the provision in section 139 of the Powers of Criminal Courts (Sentencing) Act 2000, section 139(4), provides a maximum of 28 days for an amount exceeding £500 but not exceeding £1,000.  This seems to have been overlooked by everybody until the present proceedings.
3.	On 27th March 2007 the claimant contacted the Ealing Fines Office to say that he could not make the payments because he was still trying to find a job.  The order had been remitted to the Ealing Magistrates for enforcement, although we have not been provided with a copy of the Crown Court's order.  The Crown Court also made an order for costs and that too appears to have been remitted for collection to the Ealing Magistrates, but again we have not been provided with a copy of the Crown Court's order.
4.	On 27th April 2007 the claimant went to the Ealing Magistrates' Court and paid £50, followed by another £50 on 1st May.  On 14th May he went back to court saying he was unemployed, on income support and could not pay the fine.  He did, however, pay £30 on 22nd May and a further £20 on 11th July when he again attended court.  It appears that on this occasion the court made a further order that the balance of the fine should be paid at £100 per month with the first payment on 31st August 2007.  No change was made to the default period.  So what had been £50 per week became, from 11th July, £100 per month, but not payable until 31st August.  Again, we have no copy of the Magistrates' order on this occasion and we have no further detail of what took place before them on 11th July.
5.	There then followed a number of payments which are set out at page 9 of the bundle of documents and they are as follows:  3rd September £20; 4th September £30; 4th October £40; 5th October £10; 8th October £10; 9th October £10; 31st October £30; 6th November £40; 15th November £20; 20th November £40; 4th December £40; 21st December £60; and 27th February £50.  Thus, by 25th March the claimant had paid a total of £600 of the fine of £1,600.  There is no dispute about the amount or the dates and various payments to which I have referred.
6.	The Magistrates, at page 17 of the bundle, have produced what appears to be a printout from the court computer which contains, among other information, the following: 
"Time to pay £100 per month commencing on 31.08.2007."  
That refers back to the order as varied on 11th July.  Then these words: 
"Imposed £2640 ‑ Paid so far £600 ‑ Balance £2040."
It appears that what has been done is to lump the fine and the costs orders together, at least as far as the computer is concerned.  As I have already made clear, we have no copies of various orders that may be of some importance in this case, in particular the orders remitting to the Magistrates' Court for enforcement, the order of 11th July 2007 and, indeed, the order of 25th March 2008 which is under review.
7.	On 25th March 2008 the court said that they were minded to make a finding of wilful neglect and at that point adjourned for the claimant to instruct the duty solicitor.  We have a note of the evidence that the Magistrates heard and the note is not disputed.  It says: 
"I'm having employment probs with my crim record.  I'm looking but it's difficult.  I've only been on £200 per month.  I made great effort from August to December to make payments.  I'm struggling to pay my bills.  I haven't bought any new clothes.  I haven't been working.  All I get is my £200 per month benefit.  I was asbestos stripping in 2006.  It's not like I've been ignoring it.  I've been trying.  It's been my intention to pay.  If I go to prison I will lose everything."
8.	After the duty solicitor was asked to assist he made various submissions on the part of the claimant, setting out what had actually been paid, the efforts that the claimant was making and making it clear that he had on each occasion attended court and done what he could.
9.	The duty solicitor's note of what the Magistrates said is at page 13:  
"We find you guilty of wilful refusal to pay this fine.  You have consistently failed to make regular payments of the sums offered by you to the court.  The Crown Court were aware of your financial circumstances when they imposed this sum and gave 112 [days] in default of payment.  
This matter has gone on for almost one year, and still you have not obtained work.  We feel you should have made greater efforts to obtain work.  
We have considered all our other options.  We note you are on benefits, but in view of the large sum owed, deduction is unrealistic.  You are not eligible for an attendance centre order.  We do not believe the sum would be cleared even if we were to issue a distress warrant.  
We are activating the period of 112 days.  
Therefore you will go to prison for 112 days or until this amount is paid."
What is left unclear is what "this amount" is referring to and whether it was referring simply to the fine or to the total sum that remained outstanding from the original figure of £2,640.
10.	The Deputy Justice's Clerk has made a written submission.  Substantially it agrees with the facts that I have already outlined and in it he records the reasons for the Justices' decision in very similar, if not absolutely identical, terms to those that I have just read out.
11.	The Court was exercising its powers under section 82 of the Magistrates' Court Act 1980, which is headed "Restriction on power to impose imprisonment for default."  Section 82(3) provides: 
"Where on the occasion of the offender’s conviction a magistrates’ court does not issue a warrant of commitment for a default in paying any such sum as aforesaid or fix a term of imprisonment under the said section 77(2) which is to be served by him in the event of any such default, it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless—
 (a) he is already serving [F2a sentence of custody for life, or a term of imprisonment, youth custody, detention under section 9 of the Criminal Justice Act 1982]or detention in a detention centre; or 
 (b) the court has since the conviction inquired into his means in his presence on at least one occasion." 
It is that provision that was being operated by the Justices in March 2008.  Sub‑section (4) provides: 
"Where a magistrates’ court is required by subsection (3) above to inquire into a person’s means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless—
...
 (b) the court— 
(i) is satisfied that the default is due to the offender’s wilful refusal or culpable neglect; and 
 (ii)has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful." 
It is plain from the Justices' comments that they did consider in this case all other methods of enforcement, but the issue is whether they were entitled to conclude as they did that the claimant's default was due to his wilful refusal.
12.	We have been referred to the relevant passage in Archbold, the current edition, at paragraph 24‑52: 
"Wilful refusal or culpable neglect pursuant to section 82(3) must be demonstrated to the criminal standard of proof: R v South Tyneside Justices ex parte Martin, Independent, September 20th 1995.  The terms 'wilful refusal' and 'culpable neglect' denote deliberate defiance or reckless disregard of a court order:  R v Luton Magistrates' Court ex parte Sullivan [1992] 2 FLR 196.  The defaulter should be given proper opportunity to put his case, and all relevant factors must have been taken into account before the court concludes that the default is due to 'wilful failure' or 'culpable neglect': R v York Magistrates' Court ex parte Grimes (1997) 161 JP 550.  The court has an absolute duty to consider all other means of dealing with the defaulter."
As I have said, the court did in this case consider all other means. 
13.	We were also referred to a decision of Sedley J in R v South Tyneside Justices ex parte Martin, decided on 31st July 1995 dealing with non‑payment of a community charge where a similar provision was in play and it is plain, in my judgment, that a high threshold has to be crossed before there can be a finding of wilful neglect.   
14.	The problem in the present case is that the Magistrates simply did not explain the basis on which they rejected the claimant's evidence, if that is what they did, and the basis on which they came to the conclusion that he was guilty of wilful neglect in failing to pay more substantial sums than he did.  All the evidence, in my view, points to his having made significant efforts and if there was any evidence to the contrary then the Magistrates should have highlighted it and it was not appropriate for them to reach a conclusion simply based on a general assertion that he should have made more effort to obtain employment.  Amongst other things, he had a previous conviction for attempted murder and was obviously going to have significant difficulties in obtaining employment of any kind.
15.	There are a number of other matters of concern that have been flagged up to the court in the course of this hearing, but they are, in my judgment, matters which it is not necessary to resolve for present purposes.  Quite apart from anything else, the court would wish to hear detailed arguments from more than one party.  It might be necessary for an amicus to be appointed if the Crown Prosecution Service or the Magistrates' Court choose in a similar case not to participate, if it is necessary for the court to reach a conclusion on these matters.
16.	The first matter of concern is the imprisonment in default of 112 days, which appears, at least arguably, to be in excess of the maximum.  The second matter of concern is the apparent amalgamation by the Magistrates' Court of costs with the fine.  Costs and fines are dealt with under different statutory provisions.  The Magistrates say that it is standard accounting practice, (and this may very well be the position in other Magistrates' Courts up and down the country), that where there are payments made in respect of fines, costs and compensation, the Magistrates' Court treats the payments first as attributable to compensation; secondly to costs and only thirdly to fines.  I can see the force of doing so from the viewpoint of where the money goes after it has reached the Magistrates' Court, but it seems to me that when the payment is being made by a defendant it is important for him that if there is a fine with a period of imprisonment in default the money is attributed in the first instance to the fine.  But we have not heard argument on these issues.  Nor have we heard any argument on what the position is where part of the fine has been paid and the original imprisonment in default is in excess of the maximum allowed.  Further, we have not been addressed about the period to be served where part of the fine has been paid and only a proportion of the original fine remains outstanding.  We have no jurisdiction to deal with issues of that kind.  They are not before us today and I express no opinion upon them.
17.	In these circumstances, it seems to me that the appropriate course is simply to quash the Justices' order of 25th March 2008.  For my part, if my Lord agrees, I would simply quash the Justices' order and make no further order.  It would then be a matter for the court to decide what further steps should be taken with regard to enforcement of the payment of the fine.  What I make clear is that from the claimant's point of view there is still a significant sum outstanding, there is an obligation on him to pay that sum and also to pay the outstanding liability with regard to costs.  We note that he has already spent 27 days in custody prior to being released on bail on leave being granted for judicial review, but the period in custody seems to me to be of no consequence to the issue that we have to decide today.  
18.	MR JUSTICE DAVID CLARKE:  I agree. 
19.	MR BLAKE:  My Lord, I am most grateful to your Lordships for your patience and time.  He is publicly funded.  I would ask for a full assessment. 
20.	LORD JUSTICE SCOTT BAKER:  You may have that. 
21.	MR BLAKE:  I am most grateful, my Lord. 
22.	LORD JUSTICE SCOTT BAKER:  I hope you will draw his attention to the postion he is in now and to see if some sense can be got into the situation. 
23.	MR BLAKE:  Indeed, my Lord.