Is imprisonment for council tax default unlawful?

[Peterbard]

I must say for the record that I have never said or even thought that a debtor should be imprisoned for whatever reason, the idea is abhorrent to me and goes against my core principles.

The suggestion is frankly absurd.

[Bailiff Advice]

 

The other Philip Evans (who I also know) is connected to two enforcement companies that are based in Wales.

 

I should also add that he is a highly experienced solicitor as well as being an Under Sheriff.

[brassnecked]

I think it is more to do with the attitude of the magistrates and poor knowledge of the law TBH, the idea that you are in debt so you must be punished although not legal is unfortunately alive and well in the minds of some our judiciary unfortunately.

Being poor and therefore unable to pay is a crime to some misguided magistrates, unfortunately as Council Tax is a flat rate paid by rich and poor alike according to band, and some council houses are in Band E there is an issue there, around affordability So the poor can't pay could end up in jail, as easily as a won't pay if they gaet a magistrate on a mission.

[Bailiff Advice]

Just to hopefully get this subject concluded, the position is that if a committal hearing is heard, the Magistrates would need to have evidence before them to show that ALL enforcement methods outlined in the regulations (taking control of goods, attachment against benefits, attachment against earnings etc) had first been attempted and failed.

 

Next, the Magistrates would be required to examine the debtors 'means' (MC 100) forms and assets etc (a charging order could be explored etc) and a great will depend on what is found at that stage. For example:

 

It may be that the debtor is paying hefty finance charges for a nice vehicle. Council tax is considered to be a 'priority' debt and the Magistrates could consider that the debtor failed to budget for council tax when taking out the finance and that therefore the debtor could be found to be in the bracket of 'culpable neglect'.

 

There are also cases (in particular with FMoTL) where debtors do not recognise council tax and refuse the pay. This would be seen as 'WILFUL REFUSAL" and committal could be considered.

 

What is clear is that committal must be a last resort and can only ever be considered if all other enforcement methods have been tried and failed (for one reason or another) and the debtors 'means' explored. The Magistrates would then need to be satisfied that the REASON for non payment was as a result of either WILFUL REFUSAL or CULPABLE NEGLECT.

 

PS: Culpable neglect would of course apply in cases where council tax was not paid but the family had just enjoyed an overseas break etc.

[Peterbard]

Yes indeed and as said before, custodial sentences like these are almost invariably due to a penalty for none payment, this is why so many can be overturned on appeal as said many times by me and others including the author of the piece, the passing down af a custodial sentence for a debt that the debtor is unable to pay is a penaltyl, deterrent and unlawful.

 

The sentences re penal(in the main, unless mainly the debtor is trying to make a point on the nature of the tax in question, as happened in many cases particularly in the poll tax years.

Statistics regarding theses cases have been published and I have access to them, however i will not be putting them on here for two reasons first i do not have permission and secondly I will not post them unaccredited as if they were my own work as others have elsewhere(oh and they are not really relavant currently).

 

I would however like to see recent figures on this subject under the current taxation system.

[mikeymack2002]

Even more people getting suspended jail terms recently looks like it is on the increase big time check out scoop for the stories

[Peterbard]

Yes i can understand the value of a suspended sentence as far as it could be a coercive measure, provided of course that the debtor has been proven to have the means to pay but refuses to.

[brassnecked]

Yes i can understand the value of a suspended sentence as far as it could be a coercive measure, provided of course that the debtor has been proven to have the means to pay but refuses to.

Problem also with a suspended sentence, if a custodial sentence was unlawful, and inappropriate given the particular circumstances. Same ground for appeal against a dangler as a lock 'em up. (BTW great to see you back DB)

[Peterbard]

Thank you, greatly appreciated.

 

I wonder if the person here was adequately represented, many times they are not . The burden of proof issue for instance is a criminal one, not just on balance of probabilities but beyond reasonable doubt. Very difficult to prove that someone has funds to pay on that level unless there are funds of that magnitude discovered in the defendant's saving account, which is generally unlikely.

[brassnecked]

Thank you, greatly appreciated.

 

I wonder if the person here was adequately represented, many times they are not . The burden of proof issue for instance is a criminal one, not just on balance of probabilities but beyond reasonable doubt. Very difficult to prove that someone has funds to pay on that level unless there are funds of that magnitude discovered in the defendant's saving account, which is generally unlikely.

 

I think the Court Clerk will infer civil burden of proof when advising magistrates as in balance of probabilities, so the possible £200 Personal independence payment to the disabled debtor they are considering sending down, will be mis-interpreted as available funds. Especiaslly if the are wanting to make an example and punish. Might also say they are upholding diversity and equality by sending that disabled debtor who cannot afford the CT top up payment from their benefit to jail. Trust me in another job I do, I know a magistrate who would do just that.

[Peterbard]

No apparently not, according to the article at the beginning of this thread, with the sanction being a criminal one(imprisonment) the proof must also be criminal.

 

Personally i think this is one of the reasons that these cases are proven in magistrates courts rather than county courts as in the latter case the committal sanction is not available.

[Peterbard]

Yes I agree that many magistrates have not taken on board that it is not legal to imprison people for debt, in spite of it being so since the middle of the 19th century.

 

Perhaps as you say they are being miss advised , all the more reason for adequate representation.

[brassnecked]

The government though are closing down the avenues of adequate representation for the poor and middle income as a matter of policy or so it might seem.

 

Yes as you state the article mentions the criminal burden must be used, but a Clerk on a mission might well say use civil so they can get the debtor sent down as an example to the other proles who can't or won't pay for whatever reason.

[Peterbard]

Indeed MM the crucial point is that imprisnment is not an option no matter what the level of debt.

 

I received this after some communication with the author of the article at the beginning of this thread early last June, which clarifies the issue.

 

. Dear Peter

 

Thank you for your email, glad to be in contact with you.

 

I attach an article on this topic which was published in Coventry Law Journal which you may find of interest.

 

She continues by quoting my letter to her .

 

You write: "I think the point is that the court must be assured that the debtor is able to pay, but has made a decision not to. The purpose of he investigation into the debtors financial affairs is after all to ensure that funds either exist or have existed which should have been allotted to paying the tax, and if the debtor made the decision not to do so."

 

That is indeed the law, that is what is supposed to happen. But it doesn't. The attitude, I believe, of some magistrates (important to understand that this is not universal, it only applies to some) is a basic punitive mindset "If X didn't pay council tax they are 'guilty' of wilful neglect or refusal to pay, so we can/should punish X with a term in prison" This is what they say to themselves, they then impose a period of custody, and that is unlawful, because the power to commit to custody is coercive not punitive. It can only be used in the circumstance that the debtor turns up to court with the money in his pocket and says 'No I won't use this money to pay my debts, I'm off to Tenerife to spend it on a holiday'. Some such fantasy scenario would be a lawful use of this coercive power. In fact, of course, the debtor does not have the money and the custody is unlawful. But people don't know this, custody is rarely if ever challenged, and that's the point I'm trying to get over to the general public. And I would be very grateful for your advice as to how I can do this most effectively. An article online in Local Government Lawyer doesn't reach too many people! How should I get my message across?

 

All best wishes

 

Rona

[Peterbard]

I sent her links to this thread.

[brassnecked]

I sent her links to this thread.

great.

[mikeymack2002]

Yet another defaulter imprisoned http://www.nuneaton-news.co.uk/Prison-borough-Council-Tax-evader/story-27449550-detail/story.html

[brassnecked]

Yet another defaulter imprisoned http://www.nuneaton-news.co.uk/Prison-borough-Council-Tax-evader/story-27449550-detail/story.html

Wonder what the back story is, is she a wilful refuser or a can't pay?

[caledfwlch]

Wonder what the back story is, is she a wilful refuser or a can't pay?

 

From reading the article, she had already paid the bulk of the arrears owing, so it does seem unlikely that she is a "won't pay"

 

a Prison sentence means she has likely lost her Job if she had one, so it is hard to see how she will afford £40 a month.

 

If she was employed, then this just goes so against Logic it defies belief - costing her a job by sending her to Prison, then expecting £40 a month, which is a large chunk of benefits. Not to mention the struggle she will have in finding a job since she will now have a criminal record.

 

She is not a threat to society, surely a Curfew controlled by a Tag would be a much cheaper and better alternative? Prison iirc costs something like several grand a week per prisoner....

 

What makes it worse, is you see people on the various Benefits Porn programmes going to Court for much more serious offences, such as violence, and yet, they would have to try really, really hard to actually get a Custodial Sentence, yet someone owes a couple grand in council tax, and its straight to Porridge.

[brassnecked]

Absolutely Caled, something stinks

[Peterbard]

I see Dick and Paul have been whining away about this subject again, of course without giving the right of reply nothing new there then.

 

Obviously upset that the author of the piece agrees with me , well she would, she obviously knows what she is talking about

 

The menatlaity highlighted within her article among the judiciary still exists, and people are still being sent to prison for debt which is of course ILLEGAL.

 

All other arguments and points have been discussed on this thread and as usual understood by people on here, it is pointless trying to educate the FMOTL amongst us so I will not bother. Not to say that if anyone has any problems with my points on here or has found any errors, i will not give my view and explanation.

 

Incidentally i have never spoken to Phil Evans on this subject to my recollection and i think I mentioned him once in one post somewhere, no idea where that is coming from, unless it is more jealousy that i have had the good fortune to known some intelligent and well thought of people.

 

I know several other well thought of people also if it is of any interest to anyone ?

[Peterbard]

From reading the article, she had already paid the bulk of the arrears owing, so it does seem unlikely that she is a "won't pay"

 

a Prison sentence means she has likely lost her Job if she had one, so it is hard to see how she will afford £40 a month.

 

If she was employed, then this just goes so against Logic it defies belief - costing her a job by sending her to Prison, then expecting £40 a month, which is a large chunk of benefits. Not to mention the struggle she will have in finding a job since she will now have a criminal record.

 

She is not a threat to society, surely a Curfew controlled by a Tag would be a much cheaper and better alternative? Prison iirc costs something like several grand a week per prisoner....

 

What makes it worse, is you see people on the various Benefits Porn programmes going to Court for much more serious offences, such as violence, and yet, they would have to try really, really hard to actually get a Custodial Sentence, yet someone owes a couple grand in council tax, and its straight to Porridge.

 

Yes indeed and it is proving that the debtor is a wont pay where the problem lies.

 

As said it would be easy if the money was in the debtors pocket and they refused to hand it over but that is not never the situation.

It has to be proven, beyond reasonable doubt that the debtor had funds which were more properly to be used to pay the tax.

How do you prove that ?

For instance a new school uniform for your child is a less proper expense that the council tax ?

Not possible there are to may factors to make such a judgment beyond reasonable doubt, both moral and dependant on the psychological attitude of the debtor at the time(lets not forget in criminal proof you also need to prove a guilty intent).

[Peterbard]

 

Personally i think this is one of the reasons that these cases are proven in magistrates courts rather than county courts as in the latter case the committal sanction is not available.

 

I thought this was clear,"in the latter case,ie the county court imprisonment is not possible" strange how some who spend all their time on the spellchecker loose the ability to read.

[mikeymack2002]

Here's a question if the debtor is actually jailed in as much as physically in jail are they (A) a civil prisoner or (B) a criminal prisoner? If the former can they get out earlier? If the latter do they get remission? There is a specific reason for this question if you know these answers can you post it up and see if it matches what I think is true? Also please confirm whether or not the debt still exists and if the LA can still chase?

[outlawla]

Here's a question if the debtor is actually jailed in as much as physically in jail are they (A) a civil prisoner or (B) a criminal prisoner? If the former can they get out earlier? If the latter do they get remission? There is a specific reason for this question if you know these answers can you post it up and see if it matches what I think is true? Also please confirm whether or not the debt still exists and if the LA can still chase?

 

Without referring to the relevant law (so it might be wrong) and assuming this is Council Tax, I reckon you can be released earlier if the amount outstanding is paid. That of course would make your second question redundant because the LA would not want to chase you (or would they).

 

EDIT:

 

If the above is correct then they would have to be a civil prisoner (if there is such a thing) because the function of imprisonment was obviously not to act as a penalty (they have been freed purely on the basis that money was paid).