Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Lister of Burtersett Excerpts

Tuesday 7th February 2012 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

177DB: After Clause 81, insert the following new Clause—
“Enforcement
(1) Where a magistrates’ court has fined an offender who did not respond to a summons and who was absent from the court when convicted, or has imposed any other financial penalty in the absence of the offender, at any time—
(a) the court may suspend or withdraw a warrant of enforcement given to a bailiff, and (b) the bailiff may return the case to the court which convicted the offender or such other responsible court within the jurisdiction of the area in which the offender resides (“the responsible court”).(2) Regulations shall be made enabling a court, Her Majesty’s Court Service or any person employed to enforce a warrant against a convicted person, to suspend or withdraw the warrant and return the matter to the court which convicted the offender or the responsible court as in subsection (6).
(3) Any person enforcing a warrant for a levy of distress or an execution against goods on behalf of a magistrates’ court shall be paid a single fee in respect of the work undertaken on the warrant to recover the fine or debt.
(4) Where any person enforcing a warrant for a levy of distress or an execution against goods following a fine or other order imposed by a magistrates’ court fails to recover the payment of the fine or discovers no or insufficient goods exist, that person shall return the matter to the court which imposed the fine or the responsible court in subsection (1) in order that another enforcement method for the recovery of the money owed may be undertaken.
(5) Regulations made under subsection (2) shall include the steps to be taken in a case where following conviction it is discovered that the convicted person falls into a “vulnerable category” for the purposes of page 9 of the National Standards for Enforcement Agents or as may be prescribed.
(6) Where on enforcing a warrant for a levy of distress or an execution against goods, the person enforcing the warrant discovers that the convicted person falls into a vulnerable category for the purposes of page 9 of the National Standards for Enforcement Agents or under regulations made in subsection (5), it shall be the duty of the person enforcing the warrant to return the matter to the magistrates’ court or the responsible court as the case may be for further consideration of the enforcement steps to be taken.”

[Baroness Lister of Burtersett]

My Lords, this is a probing amendment supported by the Zacchaeus 2000 Trust—Z2K—and Citizens Advice. I am grateful to Z2K in particular for its help. The amendment would end legal confusion when bailiffs are on the doorstep of vulnerable and impoverished debtors and fine defaulters. The confusion arises between, on the one hand, the judgment in the case of R v Hereford Magistrates ex parte MacRae, which states that once magistrates’ courts have passed a fine to the bailiffs for enforcement it cannot be returned to the magistrates for reconsideration; and on the other hand, the current advice of the Ministry of Justice, which states that it can be returned to the magistrates under Section 142 of the Magistrates’ Courts Act 1980.

In its briefing note, Citizens Advice says that when a county court issues a bailiff’s warrant—a warrant of execution—for enforcement of a debt, the debtor can apply to the court to have the warrant suspended and the court can make an order for payment of the debts by instalments. However, no such facility currently exists in the magistrates’ court for a person who is subject to bailiff action to enforce an outstanding magistrates’ court fine.

Once the fine has been passed to the bailiffs for enforcement, the debtor has no clear channel to ask the court to suspend the bailiff action on the grounds of hardship or vulnerability. In such cases, the only option for a defaulter or the advice sector is to try to negotiate instalment payments with the bailiffs directly. However, as numerous cases seen by the CAB service show, bailiffs will often refuse to accept an affordable instalment. Instead, they demand full payment or large instalments that fine defaulters are unable to afford. Some of these cases highlight how the magistrates’ court gives these often poor and vulnerable defaulters no help or support, refusing to take the warrant back from the bailiffs.

I shall give an example. A problem arose in a case dealt with by Z2K. A collection order was issued by Wycombe magistrates against a lone mother with three young children, threatening arrest, bailiffs, referral back to the court with the fine increased by 50 per cent, et cetera. She had failed to pay for her TV licence and then failed to pay the fine of £210 plus £60 costs levied in her absence by the magistrates. At the bottom of the collection order was written in capital letters:

“ONCE ISSUED A DISTRESS WARRANT CANNOT BE WITHDRAWN AND YOUR MONEY OR YOUR GOODS MAY BE SEIZED BY BAILIFFS AT YOUR EXPENSE”.

In a panic, she borrowed £400 plus £260 interest from Provident. She then went to the court and paid the £270 she owed in an envelope into a machine, which did not give her a receipt. Later the court told her that she paid only £170 and it wanted the remaining £100. She genuinely believed that she had paid and thought there must be a mistake by the court. Threatened by the bailiffs again, she reluctantly agreed to pay off the £100 at £5 a week, but no payments were received by the court, which then sent out the bailiffs. The bailiffs sent two letters and called twice, adding £150 to her fine. She described the conversation as follows:

“I tried to explain that I had already paid the fine he had to collect and that I shouldn't be paying it again, let alone another £150 fee for a bailiff. He said no way I could pay weekly, he would give me two more weeks to pay it. I tried to explain that I am on Income Support and that there was no way I could pay him £250 in two weeks. He said that was not his problem and he would be at my house at 1.00 pm on the 15th June. He phoned on the 14th. I explained again to him that I didn't have £250 and that I am on Income Support with three young children. He said pay me the money on Friday or I will get a locksmith and break into your house and take your possessions, he said it with quite an aggressive tone, which made me feel intimidated and quite scared. I then tried to contact Drakes [the bailiffs’ firm], however all you get is a machine with options none of which are to talk to someone”.

I am sure that noble Lords have experienced just that, but not in such stressful circumstances.

Since March 2006, bailiffs have had the power of forcible entry. There is a tendency to use the threat on the doorstep without proper consideration of the circumstances of defaulters. At this stage, Z2K heard of the case. It immediately wrote to the court asking for a rehearing of her case, but the court stood by the MacRae decision and refused to take the case back. Z2K then wrote to the Ministry of Justice pointing to page 9 of National Standards for Enforcement Agents, which gives bailiffs discretion to return cases in vulnerable situations. The MoJ replied that,

“enforcement officers can be prevented from continuing with the execution of a distress warrant. This can be done by a single magistrate”,

under Section 142 of the Magistrates’ Court Act 1980.

In the event, the court reheard the case on receipt of a written request. A McKenzie friend presented a statement of her income, expenditure and debts and related the circumstances of the case to the magistrates. The magistrates reduced the fine, arranged for it to be paid by deduction from her benefits at £5 a week, accepted that she had already paid £170 and ordered that she be repaid £40. The bailiffs were withdrawn without their fees being paid.

That is part of the problem. The bailiffs enforcing magistrates’ court fines are private companies. They make their profit from the fees paid by the fine defaulters. If they return cases to the magistrates, they lose their fees, so they obviously prefer the MacRae judgment to the MoJ guidance. They should not lose money for doing the right thing, so the amendment proposes a fee which is paid whether or not the fine is collected. I understand the fee structure is under consideration and consultations are due to take place.

--- Later in debate ---

[Baroness Northover]

My Lords, I have listened carefully to the case made by the noble Baroness, Lady Lister, in support of this amendment. I am also aware of the arguments made by Citizens Advice and the Z2K Trust. There are essentially two issues as regards the amendment. The first relates to the current law relating to the power to withdraw warrants for non-payment of fines, which has not been particularly explored in these discussions but to which I will return.

The second relates to the practice of bailiffs enforcing those warrants particularly against fine defaulters, especially those who may be considered to be particularly vulnerable. I understand the concerns that many people have about bailiffs enforcing warrants. However, many people are concerned at the level of fines that remain unpaid. There is a balance to be struck between the need to have an effective way to collect unpaid fines, and therefore to enforce the orders of the court, and the need to allow for some flexibility in the treatment of fine defaulters.

The national standards for enforcement agents were revised last month. They set out specific standards—for example, for dealing with vulnerable and socially excluded people—and I hope that the noble Baroness has seen them. It includes a list of those who may be potentially vulnerable, including the elderly or people with a disability or where someone has a difficulty in understanding English. In addition, the contracts with bailiffs include several conditions relating to their behaviour and treatment of vulnerable people. The Government remain of the view that the national standards, guidance and contractual arrangements are the best and most effective way to ensure the appropriate use of enforcement powers.

With regard to the first issue under the amendment, which relates to the legal powers to suspend or withdraw warrants, the Government think that this area deserves further consideration. We do not think that there is any doubt that a court has the power to suspend a warrant that it issues but there is at least an ambiguity about the question of whether a court or a fines officer can withdraw or suspend a warrant issued by a fines officer. I am willing therefore to take away these points and to consider whether there is a need for a change to the primary legislation and whether that change can be made in this Bill or at a later stage. In the light of that, I hope that the noble Baroness will withdraw her amendment.

[Baroness Lister of Burtersett]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his support and for another cautionary tale that he related to good effect. I would remind noble Lords of the very strong language he used. He talked about “confusion” and people being “bullied” and that it is a “disgrace”. I think that those words are warranted. I also thank the Minister for her response, in particular for leaving open the door on the second part. In taking away these issues, I wonder whether she would be willing to commit to meeting with the Zaccheus 2000 Trust and Citizens Advice to talk through the possibilities. The question is: if not in this Bill, in which one? It seems that we have an opportunity here and the Minister has shown an openness of mind that perhaps there is a case for clarifying this in law. I hope that the noble Baroness will seriously consider it for this Bill because another opportunity may not come up for some time. In the mean time, we may see other cases of people being bullied or rebuked and very vulnerable citizens being put into difficult situations. I do not think we should delay when we have an opportunity in this Bill. However, given what the Minister has said and the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 177DB withdrawn.