Aldous, R (on the application of) v Dartford Magistrates Court & Anor

Before committing a person to prison for unpaid council tax, magistrates must comply strictly with the statutory inquiries. They must consider each liability order separately, make an adequate inquiry into the debtor’s means, and determine whether the failure resulted from wilful refusal or culpable neglect. They must distinguish between those forms of culpability when fixing the term. Imprisonment is coercive, not punitive, so the court must consider whether the proposed term is appropriate to secure payment. Where imprisonment will affect children, the court must obtain sufficient information to assess that effect. Failure to undertake these inquiries renders the committal unlawful.

The claimant challenged the decision of Dartford Magistrates’ Court to commit her to prison for 90 days for failing to pay council tax arising from eight liability orders. The liability itself was not disputed. The magistrates had been told about unsuccessful enforcement by distress and had considered the claimant’s offer to pay £20 per week.

The claimant also sought damages for alleged breach of article 5 of the European Convention on Human Rights. The court considered the statutory immunity applicable to magistrates and the approach taken in TTM v Hackney London Borough Council [2011] EWCA Civ 4. The central issues were whether the committal procedure complied with regulation 47 and whether damages could be claimed against the magistrates.

1. Judicial review granted. The committal order was quashed.
2. Regulation 47 required the magistrates to treat each liability order, and therefore each year of liability, separately. The absence of separate inquiries was fatal to the decision. The court relied on R v Leeds Justices ex parte Kennett (5th April 1995), as discussed in R(Wandless) v Halifax Magistrates’ Court and Calderdale Metropolitan Borough Council [2009] EWCA 1857 Admin.
3. The inquiry into means was inadequate. A standard form and limited information did not amount to the inquiry required by regulation 47(2), particularly where the debtor had children and the liability was substantial.
4. The magistrates had to inquire whether the failure to pay resulted from wilful refusal or culpable neglect. The court declined to decide whether that assessment had to be made separately at the date of each liability order, but held that the inquiry itself was essential. The magistrates also had to determine which form of culpability applied. Under R v Highbury Corner Magistrates’ Court ex parte Uchendu (1994) 158 JP 409, culpability affected the seriousness and length of imprisonment.
5. Imprisonment under regulation 47 was coercive. The magistrates had to consider whether immediate imprisonment, its duration, and the maximum period were appropriate to persuade payment. They failed to consider the claimant’s offer, alternative enforcement, or proportionality.
6. Following R(P) v Secretary of State for the Home Department [2001] EWCA Civ 1151 and R v Bishop (Wayne Steven) [2011] WL 844007, the magistrates had to obtain information about the effect of imprisonment on the claimant’s children. They made no such inquiry.
7. The damages claim was dismissed. Article 5 required a process for compensation for wrongful imprisonment, but the court was unwilling, in light of the statutory immunity under section 31 of the Courts Act 2003, to hold that magistrates were liable in damages. The approach in TTM v Hackney London Borough Council was not applicable to this different statutory context.

The judgment describes an earlier order by Mr Dutton QC, sitting as a deputy judge, releasing the claimant from custody on 29 March 2011 after 74 days. This court granted permission and granted the judicial review, but refused permission to appeal on the damages issue.