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Karoonian v CMEC; Gibbons v CMEC [2012] EWCA Civ 1379

Child support: procedures adopted for commitment to prison held not to be compliant with Article 6 ECHR. Appeal allowed and orders for commitment set aside.

The appellants were non-resident parents who had been committed to prison, suspended on terms, for wilfully refusing or culpably neglecting to make payments for child support maintenance. They submitted that the procedure adopted under section 39A Child Support Act 1991 for commitment to prison was not compliant with Article 6 ECHR.

In the Court of Appeal Ward LJ held that:

Ward LJ remarked that the position was capable enough of easy remedy and he hoped steps would be taken by the Commission as a matter of urgency. He also held that the upper limit of the period of suspension should rarely exceed 2 years and was just about persuaded that cumulatively there were procedural errors in respect of Mr Karoonian's case (but regarded this part as of no great significance or importance).

Richards LJ agreed that both appeals should be allowed but had some limited reservations including not accepting that regulations needed to distinguish between a means enquiry and the committal proceedings if by that it was meant that they must provide for them to be the subject of distinct processes. Insofar as there was a difference between Ward LJ and Richards LJ, Patten LJ shared the views of Richards LJ.

Summary by Victoria Flowers, barrister, Field Court Chambers
________________________
 
Neutral Citation Number: [2012] EWCA Civ 1379
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL & MANCHESTER FAMILY PROCEEDINGS COURT
DISTRICT JUDGE SHELVEY & DISTRICT JUDGE A.P. CARR
MA11P00482 & LV11P00603

Royal Courts of Justice Strand, London, WC2A 2LL

Date: 30/10/2012

Before:
LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE PATTEN

Between:
B4/2012/0117
Kambiz Karoonian Appellant
- and- 
Child Maintenance and Enforcement Commission (CMEC) Respondent

AND BETWEEN:

B4/2012/0116
Christopher Gibbons Appellant
- and 
Child Maintenance and Enforcemement Commission (CMEC) Respondent

Richard Gordon QC and Matthew Stockwell (instructed by Forshaws Davies Ridgway LLP) for the appellants

James Eadie QC and Katherine Olley (instructed by Child Maintenance Litigation and Advice Team) for the respondent

Hearing dates : 30th April and 1st May 2012

Judgment Approved by the court
for handing down
(subject to editorial corrections)

Lord Justice Ward:
1. Each of these appellants in these linked appeals is a non-resident parent ("NRP") for the purposes of the Child Support Act 1991 ("the Act"). Each of them was committed to prison, suspended on terms, for their wilfully refusing or culpably neglecting to make payments for Child Support maintenance. In the case of Christopher Gibbons he was committed to prison on 3rd August 2011 for a term of 21 days suspended on condition that he discharged his liability for child maintenance in the sum of £2,895.00 at the rate of £5 per week. In the case of Kambiz Karoonian, he was sentenced on 14th February 2011 to 42 days' imprisonment suspended on terms he discharge his liability in the sum of £10,959.21 at the rate of £1,000 per month. It is their case that the procedure adopted under s. 39A of the Act is not compliant with the Human Rights Act 1998. If this contention is well-founded, the teeth will be drawn from this valuable remedy of last resort. With the number of committal orders having increased from 230 in 2004/5 to 1050 in 2010/11, the impact on the ability of the Child Maintenance and Enforcement Commission ("CMEC" or "the Commission") effectively to collect arrears of child maintenance will be huge. So this appeal raises issues of some importance. Each of the appellants had individual complaints arising from the conduct of the respective proceedings against him.

The operation of the Child Support Act 1991

"This statute introduced a new child maintenance scheme. The scheme was intended to provide an effective, cheap and speedy means to enforce parental support obligations. Another aim, of considerable importance, was to reduce dependence on social security and the cost to the tax payer."

2. So said Lord Nicholls of Birkenhead in Farley v Secretary of State for Work and Pensions (No. 2) [2006] UK HL 31, [2006] 1 WLR 1817 at [1]. That obligation to provide child support is imposed on each parent under section 1 of the Act. For the purposes of the Act a NRP shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act. Either parent may apply under section 4 for a "maintenance calculation", using the terminology since 3rd March 2003 when the Child Support, Pensions and Social Security Act 2000 came into effect. Under the old scheme a "maintenance assessment" was made. Where a maintenance calculation has been made the Commission, formerly the Child Support Agency, has the power to arrange for the collection of the child support maintenance payable in accordance with the calculation and for the enforcement of the obligation to pay that maintenance.

3. Liability is calculated under s. 11 and Schedule 1. If insufficient evidence has been provided by the NRP to make a "full maintenance assessment", then the Commission can make a default maintenance decision (formerly an interim maintenance assessment). That is what has happened in each of the cases before us. It is, however, important to note that any such decision may be revised under s. 16 or superseded under s. 17 or appealed under s. 20. Thus there is ample opportunity afforded to an NRP to have a correct assessment of his liability made by the Commission. Neither appellant availed himself of those opportunities although each of them still complain of the calculation/assessment made against him.

4. The Act then sets out a detailed and comprehensive code for collection and enforcement of payments due under the maintenance calculation assessments. The Commission, and not a parent with care, has the power to arrange for collection and to enforce payments of child maintenance (see s. 29). S. 31 provides for collection by means of a Deduction from Earnings Order; s. 32A provides for orders for regular deductions from accounts which can be frozen by orders made under s. 32G. Orders preventing avoidance can be made under s. 32L. These remedies lie in the hands of the Commission backed, in some circumstances, by penal sanctions. Thus far the Court is not involved.

5. The next raft of steps for enforcement does involve the court. The first step is for the Commission to obtain a Liability Order under s. 33. This section applies where a person who is liable to make payment of child support maintenance, called "the liable person", fails to make one or more of those payments and it appears to the Commission that it is inappropriate to make a Deduction from Earnings Order against him because, for example, he is not employed or although such an order has been made against him, it has proved ineffective as a means of securing that payments are made. The Commission may then apply to a Magistrates' Court for a liability order against the liable person and where the Commission so applies, the Magistrates' Court shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid. S. 33(4) is of some importance: the court shall not question the maintenance calculation under which the payments of child support maintenance fell to be made. Farley explained this, to cite from the head note:

"... that on the face of the language of s. 33(4), read in the context of the section as a whole, the Magistrates' Court has to proceed on the basis that the maintenance assessment in question was lawfully and properly made, and was precluded from questioning the assessment or any aspect of it; that the function of the Magistrates' Court was to check that the assessment related to the defendant brought before the court and that the payments in question had become payable and remained unpaid; that section 33(4) was not an ouster provision, but was part of a statutory scheme which allocated jurisdiction to determine the validity of an assessment to a court other than a Magistrates' Court; ... that the 1991 Act, in both its original and amended form, provided effective means whereby an absent parent could challenge the Secretary of State's jurisdiction to make a maintenance assessment; and that, accordingly, there was no justification for reading s. 33 as requiring or permitting the Magistrates' Court to entertain such a challenge."

6. The liability order provides the gateway for further steps for enforcement. Armed with the liability order the Commission "may levy the appropriate amount by distress and sale of the liable person's goods" pursuant to s. 35. he appropriate amount means the aggregate of (a) the amount in respect of which the liability order was made to the extent that it remains unpaid; and (b) an amount in respect of the charges connected with the distress. It should be noted that no order of the court is required to levy distress, the Child Support (Collection and Enforcement) Regulations 1992 setting out the conditions for levying distress on behalf of the Secretary of State. A person aggrieved by the levy of, or attempt to levy distress, may appeal to the Magistrates' Court. S. 36 provides the next means of enforcement. Where a liability order has been made against a person, the amount in respect of which the order was made, to the extent that it remains unpaid shall, if a county court so orders, be recoverable by means of a third party debt order or a charging order, as if it were payable under a county court order (s. 38 provides for comparable enforcement in Scotland.)

7. Now we get to the Exocet of enforcement, commitment to prison and disqualification
from driving.

"39A Commitment to prison and disqualification from driving.
(1) Where the Commission has sought –

(a) in England and Wales to levy an amount by distress under this Act; or

(b) to recover an amount by virtue of s. 36 ...,

and that amount, or any portion of it, remains unpaid it may apply to the court under this section.

(2) An application under this section is for whichever the court considers appropriate in all the circumstances of –

(a) the issue of a warrant committing the liable person to prison; or

(b) an order for him to be disqualified from holding or obtaining a driving licence.

(3) On any such application the court shall (in the presence of the liable person) inquire as to

(a) whether he needs a driving licence to earn his living;

(b) his means; and

(c) whether there has been wilful refusal or culpable neglect on his part.

(4) The Commission may make representations to the court as to whether it thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.
 
...

(6) In this section "the court" means —

(a) in England and Wales, a magistrates' court ...

40. Commitment to prison.

... [repealed provisions]

(3) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of a liable person it may —

(a) issue a warrant of commitment against him; or

(b) fix a term of imprisonment or postpone the issue of the warrant until such time and on such conditions (if any) as it thinks just.

(4) Any such warrant —

(a) shall be made in respect of an amount equal to the aggregate of —

(i) the amount mentioned in s. 35(1) or so much of it as remains outstanding; and

(ii) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of commitment; and

(b) shall state that amount.

...

(6) A warrant issued under this section shall order the liable person —

(a) to be imprisoned for a specified period; but

(b) to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant.

(7) The maximum period of imprisonment that may be imposed by virtue of subsection (6) shall be calculated in accordance with schedule 4 to the Magistrates' Courts Act 1980 (maximum periods of imprisonment in default of payment) but shall not exceed six weeks.
 
...

40B. - Disqualification from driving: further provision

(1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may

(a) order him to be disqualified, for such period specified in the order but not exceeding two years as it thinks fit, from holding or obtaining a driving licence (a "disqualification order"); or

(b) make a disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.

(2) The court may not take action under both section 40 and this section.

(3) A disqualification order must state the amount in respect of which it is made, which is to be the aggregate of

(a) the amount mentioned in section 35(1), or so much of it as remains outstanding; and

(b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under section 39A."

8. The Child Support (Collection and Enforcement) Regulations 1992 provide as
follows:

"33. Application for warrant of commitment

(1) For the purposes of enabling an inquiry to be made under section 39A of the Act as to the liable person's conduct and means, a justice of the peace may

(a) issue a summons to him to appear before a magistrates' court and(if he does not obey the summons) issue a warrant for his arrest; or

(b) issue a warrant for his arrest without issuing a summons.

(2) In any proceedings under section 39A and 40 of the Act, a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be evidence of the facts there stated.
 
...

35. Disqualification from Driving Order

(1) For the purposes of enabling an enquiry to be made under s. 39A of the Act as to the liable person's livelihood, means and conduct, a justice of the peace may issue a summons to him to appear before a magistrates' court and to produce any driving licence held by him, and, where applicable, its counterpart and, if he does not appear, may issue a warrant for his arrest."

The proceedings against these appellants

9. Christopher Gibbons is the non-resident parent of two children, a daughter born on 19th October 1995 and a son born on 18th April 1998. Application for maintenance was made on 17th May 2005 by which time the new scheme had come into operation. A full assessment at the rate of £5 per week was made on 2nd November 2005 but reduced to nil in February 2007 at which time the appellant was self-employed but on a low income. In February 2008 he stated that he was once again working and a default maintenance decision was taken assessing him at the rate of £40 per week from 19th May 2008. A liability order was made on 26th August 2009 in the sum of £2,895, the sums found to be unpaid in the period 2nd November 2005 to 30th June 2009. A summons under s. 39A was issued on 2nd February 2011. Shortly before the first hearing he called on the Commission to say he had been paying the mother directly. He failed to attend the hearing and objected to the application stating he had never received notice of the liability order hearing as he had moved address. The matter was adjourned and relisted for 17th March 2011 and further adjourned to 3rd August 2011. On that day District Judge (Magistrates' Court) A.P. Can sitting in the Manchester Family Proceedings Court committed the appellant to 21 days' imprisonment suspended on terms that he pay the sum of £2,895 at the rate of £5 a week.

10. The Karoonian case has a more complicated history. The appellant is the non-resident parent in two cases, both old scheme cases. His first children were born on 2nd September 1992 and 3rd May 1995. The initial claim was made in October 1997 but as he was claiming Jobseeker's Allowance a nil assessment was made. A second claim for child support was made by the mother of his third child born on 29th October 1997 and a maintenance enquiry form was issued in respect of that child in November 2000. No information was received from the appellant in respect of his income and as a result an interim maintenance assessment at the rate of £156.90 was made in respect of the older children and £125.25 per week in respect of the youngest. The maintenance enquiry form was received from the appellant in June 2001 stating he was of no fixed address and that he was self-employed as a sole trader. In February 2002 he claimed Jobseeker's Allowance and his assessments were reduced to nil. At that time the arrears stood at £6,163.93 in case 1 and £4,795.29 in case 2 but the arrears were temporarily suspended. No further action was taken until 2007 but attempts to get further information from the appellant were unsuccessful and in October 2007 all parties were advised that the case had been assessed at nil. A liability order was obtained on 29th September 2009 in the sum of £10,959.21 representing the arrears owing on both cases from 28th May 2001 until 27th February 2002. In his case a charging order was granted on 24th February 2010. His solicitors were informed that if he wished to have the interim maintenance assessments converted he would need to provide details of his income, housing costs and a full set of accounts etc but he said he did not have any relevant documents going back so many years. The summons for committal was issued in July 2010 but twice adjourned to give the appellant the opportunity either to pay or to provide evidence for the conversion of the interim maintenance assessment. When information was provided it was not accepted as sufficient to allow a supersession to be made. On 1st December 2010 the matter was further adjourned, the order reciting that both the CSA and the appellant were represented by solicitors and then recording:

"Upon hearing from Mr Lawson that he wished to raise legal issues on behalf of his client in respect of the CSA application for committal

The Court directs that:

1. Mr Lawson files a skeleton argument outlining the issues on behalf of his client within the next 14 days.

2. The CSA to respond 14 days thereafter.

3. The matter is adjourned for further directions before District Judge Sanders on 17th January 2011 at 10.00 am (ELH 30 minutes)."

 

30 minutes was not long enough and so on 17th January 2011 the court directed that:

"The matter is further adjourned for legal argument in respect of the CSA application for committal before District Judge Shelvey on 14th February at 2 pm (ELH 3 hours)."

On 14th February 2011 District Judge Shelby sitting in the Liverpool Family and Civil Court ordered that Mr Karoonian "go to prison for 42 days which is suspended upon payment of the sum of £1,000 per month, first payment within 28 days and thereafter at the rate of £1,000 per month. Costs of £3,000 to be paid by the defendant."

The issues in these appeals

11. A whole raft of points is taken, some more important than others and even some of little importance altogether. At the heart of the appeal is the appellants' contention that these committal proceedings under the Child Support Act do not comply with the appellants' rights to a fair trial guaranteed by Article 6 of the European Convention of Human Rights. The appellants submit that the case is indistinguishable from the flawed judgment summons proceedings in the Family Division as was decided by this Court in Mubarak v Mubarak [2001] 1 FLR 698. It is further submitted that the threshold pre-requisites for bringing committal proceedings are not routinely observed, that s. 39A lacks the necessary certainty to be enforced by these proceedings which are of a criminal nature; that they are not brought in reasonable time and that the wrong burden and standard of proof are routinely applied by district judges. I shall look first at the operation of s. 39A itself and then examine the procedures routinely followed in the magistrates' court before finishing briefly with the individual complaints.

The operation of s. 39A: the statutory preconditions for applying for commitment to prison

12. In approaching this question of construction I must bear in mind the purpose to be served by the Act in general and s. 39A in particular. The object of the Act is to provide a system for the NRP to honour his responsibility to support his children. This gives effect to our international obligations under the United Nations Convention on the Rights of the Child, Article 27(4) of which requires States parties to "take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having responsibility for the child ...". As Baroness Hale of Richmond said at [78] of Smith v Secretary of State for Work and Pensions and anor [2006] UKHL 35 [2006] 1 WLR 2024:

"Even if an international treaty has not been incorporated into domestic law, our domestic legislation has to be construed so
far as possible so as to comply with the international
obligations which we have undertaken. When two
interpretations of these regulations are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the United Nations Convention on the Rights of the Child."

Enforcement by commitment to prison must be seen as achieving a reasonable relationship between the legitimate aims of the legislation and the means employed to achieve those aims.

13. That said, it cannot be overlooked that, as is now common ground in this appeal, commitment to prison is a penal sanction and as such the proceedings are to be treated for Article 6 of the ECHR as criminal in their nature. On established principles of construction the statute must be strictly interpreted. As Lord Steyn made clear at [38] in R v A (No. 2) [2001] UKHL 25 [2002] 1 AC 45:

"... the guarantee of a fair trial under article 6 is absolute ... The only balancing permitted is in respect of what the concept of a fair trial entails ..."
Consequently the interests of the child cannot erode the right to a fair trial.

14. The question of construction which arises here is whether the pre-condition set by s. 39A(1) that the Commission "has sought (a) ... to levy an amount by distress ... or (b) to recover an amount by virtue of s. 36 ..." requires the Commission actually to have attempted enforcement in one of those ways or merely to have given consideration to such enforcement. What does "sought" mean?

15. In the Gibbons case District Judge Carr approached the matter in this way:

"I considered the evidence before me from Ms Neill (who stated in fact she had not sought distress etc) but came to the conclusion that as a matter of law the Agency had sought those reliefs. Their reasoning was that the Agency must have done more than consider the use of distress etc but that 'sought' did not require it to have actually attempted to levy distress etc (without success). What the Agency had done was take the steps necessary before it could instruct bailiffs but had concluded that there was no utility in either of the available processes in the light of the evidence available. In my view the word 'sought' implied less than 'attempt' and more than `consider' and the Agency had done more than consider distress. Accordingly, I was satisfied that the Agency could proceed to the application under s. 39A."

16. Mr James Eadie QC, for the Commission, supports this view with a powerful plea to common sense. What a silly waste of time and money he says, but much more eloquently than that, to send in the bailiff at some expense when it is obvious that nothing will come from it. The legislature could not have intended that. So "sought" does not mean what its plain ordinary meaning would convey, namely, that the Commission actually seeks enforcement to obtain the recovery of money by levying distress: robustly construed it means no more than giving proper consideration to the efficacy of instructing the bailiffs. In other words, as I understand the argument to run, s. 39A has to be construed in this sense that when it appears to the Commission that it is inappropriate to levy an amount by distress, then the Commission need not take the trouble and incur the wasted costs.

17. I see the force of that submission but the problem with it is that if the legislature wanted to say that, it could easily have done so because that is the very language employed in s. 33 in setting the threshold for the liability order:

"33. This section applies where —

(a) a person who is liable to make payments ... fails to make one or more ofthose payments; and

(b) it appears to the Commission that:

(i) it is inappropriate to make a Deduction from Earnings Order against him ..."

I have added the emphasis. That language is plain but it was not chosen by the legislature when defining the threshold for s. 39A. The different use of language must be deliberate and so "sought" must have a meaning other than distress appearing to the Commission to be inappropriate which is how, in effect, the district judge construed it.

18. There are other pointers in the same direction. S. 35 permits levying "the appropriate amount" by distress and that is defined to be the aggregate of the unpaid child support and the prescribed "charges connected with distress". Under s. 39A(1) the Commission must have sought to levy "an amount" by distress under the Act and read with s. 35 that amount must include those costs of distress. There would be no charges if distress was simply considered but not actually undertaken. There is also s. 40B dealing with the disqualification from driving as an alternative to committal. S. 40B(3) provides that the disqualification order must state the amount in respect of which it is made "which is to be the aggregate of (a) the amount mentioned in s. 35(1), or so much of it as remains outstanding and (b) an amount ... in respect of the costs of the application under s. 39A." Once again it appears to be assumed that distress will have been attempted and that the costs will have been incurred.

19. I do not find this an unwelcome conclusion. The scheme sets out a hierarchy of steps to take to enforce payment. I do not find it inconsistent with such a scheme that all steps must be taken before the last resort is had to imprisonment or disqualification. That the distress may be wasted may be the price to pay before depriving the NRP of his liberty.

20. Since no distress was sought to be levied against Mr Gibbons and no attempt was made to recover an amount by third party debt order or charging order, the necessary pre-condition was not satisfied in his case, and his appeal should allowed on that ground alone. The pre-condition was satisfied in Mr Karoonian's case because there charging orders had been obtained and s. 39A(1)(b) was satisfied.

The need for certainty

21. The rule is not in dispute. In R v Rimmington [2005] UKHL 63 [2006] 1 AC 495, Lord Bingham of Cornhill said:

"33. ... There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it "must be done step by step on a case by case basis and not with one large leap": R v Clark (Mark) [2003] 2 Cr App R 363, para 13.

34. These common law principles are entirely consistent with article 7(1) of the European Convention, which provides:

"No punishment without law

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

The European Court has repeatedly considered the effect of this article, as also the reference in article 8(2) to "in accordance with the law" and that in article 10(2) to "prescribed by law".

35. The effect of the Strasbourg jurisprudence on this topic has been clear and consistent. ... An offence must be clearly defined in law (SW v United Kingdom (1995) 21 EHRR 363), and a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, the consequences which a given course of conduct may entail (Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49) ..."

22. There being no dispute that an application for committal is to be treated as a criminal charge, the question is whether the law is sufficiently clear to have enabled these appellants to foresee with the good advice they were getting that the consequences of a failure to pay may entail committal to prison.

23. In my judgment ss. 39A and 40, which have to be read together for this purpose, are formulated with sufficient precision. It is perfectly obvious that the facts to be established are:

(1) that a liability order has been made;
(2) that the Commission has sought to levy distress or to enforce under s. 36;
(3) that an amount remains unpaid and how much it is;
(4) that the liable person has or had the means to pay it; and
(5) that he has wilfully refused or culpably neglected to pay the outstanding sums.

24. I reject the submissions advanced by Mr Richard Gordon QC for the appellants that there is no certain temporal focus for the court's enquiry and that it is not clear whether the wilful refusal or culpable neglect on the part of the NRP must be demonstrated for some or all of the period between the making of the assessment and the making of the liability order or between making the liability order and the issue of the committal proceedings or the making of a means assessment or at any other time. It is true that the calculation or assessment of maintenance leads to an obligation to pay the amount thus calculated or assessed but there is no risk of committal at that stage if payment is not made. As the scheme is designed to operate, the liability order crystallises the debt. A fresh obligation to pay arises on the making of the liability order. It is his wilful refusal or culpable neglect to make payment after the liability order has been made that will lead to his committal. So the court must look to the period between the making of the liability order and the hearing of the application for committal. If at the time of the hearing he has the means but has not paid the court will judge whether the failure to pay is due to wilful refusal or culpable neglect. If at some time between the making of the liability order and the hearing of the committal he did have the means to pay though at the time of the hearing he was without means, nonetheless the court must consider whether he was wilful or culpable when he was possessed of sufficient financial resources to discharge the liability imposed upon him by the liability order. The refusal or neglect to pay child support at times before the making of the liability order may be relevant but only as part of the history from which the court may be able to draw inferences as to the proper characterisation of his failure to pay once the liability had been made. Putting it simply he must not wilfully refuse or culpably neglect to pay the sums specified in the liability order if he has the means to do so.

The need for a hearing within a reasonable time

25. The opening words of Article 6 are well enough known: in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

26. Mr Gordon's concern, and it arises particularly in the Karoonian case, is that there has been a violation of this right because the relevant period for these purposes must commence at the date of assessment as an NPR is not permitted to challenge the assessment or the liability order on which it is based within the committal proceedings, as was established in Farley v Secretary of State for Work and Pensions (No. 2) which I cited at [2] above. He submits that if an application for committal is not pursued on a timely basis (taking into account the period between assessment on an interim or final basis and the obtaining of a liability order), the rights enshrined under Article 6 are neither practical nor effective. I cannot agree. An application for committal being a criminal charge for Article 6 purposes, the proper question is to ascertain the length of time between the laying of the charge and its determination. No committal proceedings can be brought before there has been a liability order (indeed before there have been the attempts to enforce the liability order by distress or under s. 36). In fact the charge is not laid until the committal summons is issued. Anything that happened before then is pure history. The period between calculation or assessment and the issue of the committal summons is totally irrelevant for the purpose of fixing a reasonable time. The committal summons was issued against Mr Karoonian on 2nd July 2010 and the several adjournments that took place were for his convenience or at his request. The hearing was concluded on 14th February 2011. The delay between July 2010 and February 2011 can by no stretch of the imagination be said to be unreasonable: indeed, Mr Gordon does not suggest that it was.

27. Likewise there can be no complaint by Mr Gibbons of a failure to prosecute the committal summons expeditiously enough. It is not necessary for the purpose of this judgment to decide whether the delay between the making of the assessment in his case and the making of the liability order is unreasonable or, if it is, whether that makes any difference. If complaint was to be made, it was to be made on the hearing of the liability order and none was made. It is unnecessary for the purposes of the present appeal to consider whether for the purposes of making a liability order the six year period of limitation of judgments or orders applies pursuant to s. 34 of the Limitation Act 1980. Nor is it necessary to consider whether the practice in the Family Division or the other divisions that there should be no execution after six years without leave has any relevance for these child support purposes.

Commitment to prison or disqualification from driving?

28. S. 39A(2) gives the court the power to consider which is more appropriate in all the circumstances — a warrant committing the liable person to prison or an order disqualifying him from driving. There is no express guidance as to which order is the preferable one. Ss. (3) does make it mandatory for the court to inquire as to whether the liable person needs a driving licence to earn his living. The implication is that the defendant should not be deprived of his licence if a licence to drive enables or furthers his earning his living: better that he earn for then he can pay. This seems to be the only statutory guidance. Ss. (4) envisages that the Commission may make representations as to whether it thinks it more appropriate to commit the liable person to prison or to disqualify him from driving and the liable person may reply to those representations. S. 40 informs us that it is only if the court is of the opinion that there has been wilful refusal or culpable neglect that a warrant of commitment may be issued but s. 40B gives exactly the same test for ordering disqualification. We gain no help there. One must turn to more basic principles.

29. Although it has been said that "s. 39A is essentially a carrot and stick provision" (see [38] in CMEC v Mitchell [2010] EWCA Civ 333 [2010] 2 FLR 622), it remains true that "the power to commit to prison [for a failure to pay local taxes] is plainly to be used as a weapon to extract payment rather than to punish", per Kennedy LJ in R v Wolverhampton Magistrates Court ex parte Mould [1992] RA 309. The right to liberty is such a fundamental human right that deprivation must always be an order of last resort. The order should not be made without good reason. Given that there is this choice of sanction, the liable person is entitled to know why the option of disqualification was rejected and why imprisonment was preferred. Those reasons need not be expressed at length: all that is required is that the defendant should understand why the court thinks that imprisonment is the more appropriate choice.

30. In Gibbons' case the District Judge noted, "It is not argued before me that I should disqualify and I have no evidence that this would be appropriate or effective. What is needed is pressure on Mr Gibbons to encourage him to accept his responsibility." So he made the suspended order of committal. His approach to the question of imprisonment or disqualification does not seem to me to be capable of sustainable criticism.

31. In the Karoonian case the District Judge said that she required to be satisfied of three matters, namely, (a) that the Commission had obtained a liability order; (b) that they had tried to recover the arrears by distress or by virtue of s. 36 or 38 and that an amount remained unpaid and (c) if and only if the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may move to commitment. He did not address the need to consider whether imprisonment was more appropriate than disqualification. There was no reference to the mandatory requirement to enquire into the need for a driving licence. There is nothing in the short judgment to indicate that the possibility of disqualification as an alternative to imprisonment crossed the District Judge's mind. This was, in my judgment, an error and the order of commitment should, therefore, be set aside.

The presumption of innocence and the burden and standard of proof does s. 39A itself comply with Article 6?

32. It is time to recite Article 6 in full:

"Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."


33. I do not see how it can be said that s. 39A does not comply with Article 6(2). Ss. (3) insists that the court "shall ... inquire" as to three things, namely, (1) the need for a driving licence, (2) means and (3) whether there has been wilful refusal or culpable neglect. Nothing in the language ordains that the ordinary rules of procedure do not apply and, consequently, he who asserts a fact must prove it. It certainly casts no burden on the defendant to prove anything. He can remain silent if he chooses. S. 39A does not deprive him of the presumption of his innocence. The Commission accepts the onus of proof lies on them and that the standard of proof is the criminal standard beyond reasonable doubt, not the civil standard of the balance of probability. Nothing in s. 39A impinges upon the minimum rights guaranteed by Article 6(3). S. 39A is of itself wholly compatible without Article 6.

The compliance of the practice and procedure of committal proceedings with the right to a fair trial

34. The question which arises is whether the practice and procedure is compliant with the right to a fair trial. Mr Gordon would see this as the crucial issue for this appeal but as I would allow the appeals for the reasons already given, it is perhaps not necessary to deal with it. Nonetheless it apparently affects the way these cases are dealt with up and down the land. McFarlane LJ directed the parties to agree if possible on the practice routinely adopted and I am grateful to them for the joint work that has been submitted. This is what seems to be happening. There are no written procedures or official guidance so far as we know. The Commission commonly send a warning letter informing the NRP that proceedings for committal or disqualification may be taken if payment is not made of the arrears. If the debt remains unpaid, the Commission may then issue a summons. Form CSF 874 is apparently used for this purpose. As far as I can tell it is not a statutory form. The form of the liability order, the order of commitment and the disqualification order are prescribed by regulations 29(1) and schedule 1, regulation 34(1) and schedule 3, and regulation 35(4) and schedule 2 respectively. So far as the application for a warrant of commitment is concerned regulation 33 provides:

"33(1) For the purpose of enabling an inquiry to be made under s. 39A of the Act as to the liable person's conduct and means, a justice of the peace may —

(a) issue a summons to him to appear before a magistrates' court and (if he does not obey the summons) issue a warrant for his arrest; or

(b) issue a warrant for his arrest without issuing a summons." [Italics added by me.]

So far as a disqualification from driving order is concerned, regulation 35 is in slightly different terms:

"35(1) For the purposes of enabling an enquiry to be made under s. 39A of the Act as to the liable person's livelihood, means and conduct, a justice of the peace may issue a summons to him to appear before a magistrates' court and to produce any driving licence held by him, and, where applicable, its counterpart, and, if he does not appear, may issue a warrant for his arrest." [Italics again added by me.]

The important point to note is not only the different scope of the inquiry but the very fact that the regulations contemplate that the inquiry under s. 39A involves the court inquiring into the liable person's conduct and means or, under regulation 35, the liable person's livelihood, means and conduct. An inquiry into means is taken to be an integral part of the hearing which the summons directs the defendant to attend.

35. The summons in Form CSF 824 confirms this. In the Gibbons case the proforma is completed to read as follows:

Summons

Section 39A of the Child Support Act 1991 and regulation 33 and 35 of the Child Support (Collection and Enforcement Regulations 1992
[insert name and code
 Manchester
number]
[Defendant]
 Mr Christopher Gibbons
of [address] [the details are correctly given]
National Insurance Number
Date of Birth
[Matter of Complaint] That a Liability Order ("the Order") was made against you by the Manchester Magistrates' Court on 29/08/2009 under section 33 of the Child Support Act 1991 ("the Act") in respect of an amount of £2985.00
[Insert Amount]
The Child Maintenance and Enforcement Commission
(i) sought under section 35 of the Act to levy by distress the amount then outstanding in respect of which the order was made;
[Select as appropriate] select
sought under section 36 of the Act to recover through the County Court, by means of
[Delete as appropriate] , the amount then outstanding in respect of which the Order was made;
[Insert amount] (ii) and that £ remains unpaid; [this figure should have been supplied]
[Delete as appropriate] (iii) and there has been wilful refusal/culpable neglect on your part. The Child Maintenance and Enforcement Commission applies for a Warrant of Commitment or an Order to disqualify from holding or obtaining a driving licence under section 39A of the said Act to be made against you and you are required to show cause why such a Warrant or Order should not be made.
[The complaint of] Mrs A Neill an officer duly appointed by and on behalf of the Child Maintenance and Enforcement Commission who states that you were responsible for the matter of complaint of which particulars are given above. [signed A Neill]
Taken before me

District Judge (Magistrates' Court) Justice of the Peace
(Authorised Assistant to the) Justices' Clerk.
Date 2.2.11

[Day and date] YOU ARE THEREFORE HEREBY SUMMONED to appear on Thursday the 24th day of February 2011 at 2.00 am/pm before the Magistrates' Court at Civil Justice Centre, 1 Bridge Street West, Manchester, M60 9DJ to answer the complaint

Dated 2.2.11
District Judge (Magistrates' Court) Justice of the Peace
(Authorised Assistant to the) Justices' Clerk.

The summons in the Karoonian case is similar, the amount remaining unpaid being £10,959.21 and in his case it was alleged that there had been culpable neglect on his part only.

36. The summons for committal in the magistrates' court is invariably served by ordinary post unlike committal proceedings in the High Court or County Court which are required by paragraph 2.5(1) of the Practice Direction to RSC 52 and CCR 29 to be served personally. Paragraph 2.5(5) of that Practice Direction also requires that the claim form must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. Here a covering letter is sent with the summons and the defendant is warned that if he does not attend the court may issue a warrant with or without bail for his arrest. The next point of difference is that by paragraph 2.5(2) of the Practice Direction the claim form must set out in full the grounds on which the committal application is made and must identify, separately and numerically each and every act of contempt, including, if known, the date of each such act. In my judgment the summons gives adequate information because it specifies as the matter of complaint that a liability was made in a certain sum, that the Commission sought to enforce it; that an amount remains unpaid and that there has been wilful refusal or culpable neglect on the defendant's part. There are, however, other differences in the procedure. Paragraph 3 of the Practice Direction deals with the written evidence which must be given in support of the committal application specifying that it must be served personally with the claim form. The respondent is told he may give oral evidence at the hearing and if he does so he may be cross-examined. In the magistrates' court no evidence or supporting documents seem to be served and the usual practice, in the absence of specific directions having been made, seems to be that the presenting officer simply outlines the indebtedness of the NRP and it is then left to the court to enquire as to his means without evidence being offered by the Commission. The Practice Direction was deliberately framed in order to ensure that committal proceedings are compliant with the ECHR and in paragraph 4.6 the court is specifically told to have regard to the need for the respondent to be –

"(1) allowed a reasonable time for responding to the committal application including, if necessary preparing a defence;

(2) made aware of the availability of assistance from the community legal service and how to contact the service;

(3) given the opportunity, if unrepresented, to obtain legal advice; and

(4) if unable to understand English, allowed to make arrangements, seeking assistance of the court if necessary for an interpreter to attend the hearing."

It will be obvious that the Practice Direction has endeavoured to comply with Article 6(3). Without a corresponding Practice Direction, the magistrates' court has to make its own effort to ensure that those safeguards have been met.

37. The appellants contend that the current procedures adopted in respect of applications under s. 39A do not guarantee the fair trial rights of NRPs for substantially the same reasons as were applicable to the old judgment summons procedures found wanting by the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698. A close analysis of Mubarak is therefore required.

Mubarak v Mubarak

38. The issue here was whether the Family Division's judgment summons procedures complied with Article 6. The judgment summons was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. That order was made by Bodey J. after the husband had withdrawn from the hearing of the ancillary relief application. The judge had to perform his statutory duty which included having to satisfy himself under s. 25 of the Matrimonial Causes Act 1973 of the income, earning capacity, property and other financial resources of the husband. He made a number of very damaging findings against the husband both as to his integrity and as to the quality of his disclosure, which does seem to have been, as usual, voluminous. He made a lump sum order of nearly £5 million and at a later stage made an order that the lump sum be paid in instalments, the first instalment being in the sum of £3,200. That was not paid and the wife issued her judgment summons in the conventional form. It recited that the wife as the judgment creditor had obtained the order for the payment of the lump sum and that the husband was in default. The summons then continued:

"You are hereby summoned to appear personally before ... on ... to be examined on oath touching the means you have or have had since the date of the said Order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default."

I have added the emphasis in order to show the similarity with the summons in our cases requiring the defendants "to show cause why such a warrant [of commitment] or order [to disqualify you from holding or obtaining a driving licence] should not be made". The judgment summons was supported by what was a conventional affidavit simply deposing to the default. The husband complained of its lack of detail and the wife was ordered to file a succinct statement of her case. She said she was relying on the evidence adduced at the trial of her claim for ancillary relief and the judgments given and findings made by Bodey J. in those proceedings. She also relied on affirmations made by the husband in the course of the ancillary relief proceedings. The stance adopted by the wife was that as the judge had already looked at that evidence and made his findings on it on a balance of probability, he would now look at the same evidence together with any new evidence but this time apply the criminal standard of proof She contended that the usual procedure of the Family Division should be followed, namely, that once the money was shown to be outstanding then the judge would say, "Well, Mr Smith had better go in the witness box and explain why he has not paid it," in other words, the procedure was that the husband was obliged to attend court and obliged to give evidence about his means and give excuse, if he could, as to why he had not paid.

39. Relying on Engel & ors v the Netherlands (No. 1) (1979) 1 EHRR 647 Mr Charles Howard QC for the husband submitted that applications under the Debtors Act 1869 were to be classified as criminal proceedings for Convention purposes. He complained that there was no recognition of the presumption of innocence and nowhere a recognition of the fact that the burden was on the wife to produce evidence of and to prove his default and not upon the husband to prove that he had not had the ability to comply with the order.

40. Thorpe LJ held:

"36. However an application under the Act may originate in family proceedings, it is clearly a procedure subjecting the respondent to the risk of the criminal sanction of imprisonment, and it seems to me manifest that Mr Howard is correct in his submissions as to its proper classification in terms of convention law. The difficulties of adapting the age-old court 51 procedure [the into-the-witness-box-you-go-Mr-Smith] to the arrival of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 are, it seems to me, considerable. As my Lord has pointed out during the course of argument, the procedure under the Debtors Act essentially combines in one what might be said to be two distinct exercises, namely the examination of means, for which the husband respondent may well be a compellable witness; and the determination of whether he is in default and whether or not the sanction should be applied, as to which the husband is certainly not a compellable witness.

37. The researches which Brooke LJ, has conducted over the adjournment have demonstrated that the practice direction, "[from which I have already cited]" which was issued at the beginning of this term to ensure that proceedings for civil committal should be conducted in a fashion that would comply with the Human Rights Act, actually extends to applications under the Debtors Act 1869. He has further demonstrated that that was the case when Bodey J sat on 9 October 2000. Unfortunately, it seems that this development — then, of course, extremely fresh — was not recognised by the court and was not specifically drawn to the court's attention by counsel. It seems to me that the fact that the practice direction is of equal application in the Family Division as it applies to committal proceedings in other divisions, and the further fact that the practice direction extends to applications under the Debtors Act 1869 as well as to any other application for civil contempt, is something of great importance that needs to be recognised immediately by all family practitioners. If that recognition follows, and if the practice direction is strictly adhered to in any future applications under the Debtors Act 1869, then the objections which Mr Howard has raised on this appeal should not be open in future cases. The practice direction should be sufficient to make the procedures under Family Proceedings rules 1991, r. 7.4 compliant with the Convention.

38. It seems to me, in short, that Mr Howard has triumphantly vindicated, during the hearing of this appeal, the stance that he and his team have adopted ever since the initiation of the Debtors Act 1869 application. I also conclude that he has convincingly demonstrated that the stance taken by the wife's litigation team was plainly wrong, in that it insufficiently reflected the impact of the Human Rights Act 1998 in this relatively obscure corner of family proceedings."

41. Brooke LJ agreed. He added:

"47. I accept Mr Russell's submission [for the wife] that, so far as the charge was concerned, Mr Mubarak had ample notice of what was complained of under section 5 of the Debtors Act 1869. But, in relation to the matters to be relied on in support of that charge, for the reasons given by Thorpe LJ, the strategy adopted by those formerly advising Mrs Mubarak fell very far short of what modern international standards of fairness require.

...

54. I return to the problems created by s 5 of the Debtors Act 1869 and the procedure prescribed for judgment summonses. Section 5 of the 1869 Act, which preserves the right of committal to prison for a term not exceeding six weeks in certain limited circumstances, contains, as proviso 2, the rule:

"That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same."

55. In other words, it is putting the onus correctly on the judgment creditor to prove those matters to the satisfaction of the court, and modern case law shows that they have to be proved to the criminal standard of proof.

56. What follows in s 5 is a procedure for a means enquiry. It reads:

"Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules."

57. As Thorpe LJ has said, this postulates a requirement that a person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under the European Convention on Human Rights: nobody is obliged to incriminate themselves.

58. To make matters worse, under the Family Proceedings Rules 1991, r 7.4(5) provides that:

"Every judgment summons shall be in Form M17."

59. When one looks at form M17, it provides that it is addressed to the judgment debtor and it reads:

"You are hereby summoned to appear personally before one of the Judges sitting in this Division at the Royal Courts of Justice, Strand, London [and then the date and time is mentioned] to be examined on oath touching the means you have or have had since the date of the said order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default."

60. This involves putting the burden of proof upside down, so far as the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is concerned.

61. In the context of the more modern codes for enforcing orders in the magistrates' court, the means inquiry is separated from the subsequent proceedings which may lead to committal. Under the Debtors Act 1869 and the rules and the prescribed form made under it, on the other hand, these two processes are muddled up, and muddled up impermissibly so far as the requirements of the European Convention are concerned.

62. I have mentioned the requirements of the convention. So far as they are relevant for current purposes, article 6(1) requires "a fair and public hearing". Article 6(2) requires that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law" — and Mr Howard rightly submitted that the presumption of innocence appeared to be being turned upside down by the procedure adopted by Mrs Mubarak's advisors. Article 6(3) provides that:

"Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...

(d) to examine or have examined witnesses against him ..."


63. Both these requirements seem to have been completely overlooked by Mrs Mubarak's former advisors when preparing their case in these proceedings."

Jacob J. also agreed.

42. In his skeleton argument Mr Eadie submits that the procedures utilised by the Commission are distinguishable from those criticised in Mubarak. He submits:

"In that case a finding was made regarding the amount of assets. The standard applied was the civil standard of proof on a default basis. Here the amount payable arises under statute and is confirmed by a liability order. The magistrate has only to enquire into the reasons for non-payment and the individual's ability and means to do so, not the question of whether the debt is due."

With respect, that slightly misses the point. True the amount here arises under the statute and is confirmed by a liability order but in the divorce proceedings the amount of the lump sum was an amount determined in accordance with statutory guidelines and was an amount confirmed by the order for payment of the lump sum. The liability order proves itself and so does the lump sum order. There can be no dispute in either case about the fact that a sum of money payable under an order of the court was outstanding. So Mr Eadie is quite right that all the magistrate has to enquire into are the reasons for non-payment and the individual's ability and means to do so, not the question of whether the debt was due. The judge on the judgment summons had exactly the same task.

43. At the heart of the problem in Mubarak's case and in this case is how that task is to be undertaken. Mrs Mubarak called no evidence of the husband's current means: she relied entirely on what had been before the judge in the ancillary relief proceedings. The court said that was not good enough. Here the Commission filed no evidence whatsoever of the defendant's current financial position. It may be they do not have that evidence. Regulation 33(2) provides that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period purporting to be signed or on behalf of his employer, shall be evidence of the facts there stated. Apart from that there is no rule, and apparently no practice, requiring evidence to be given by the Commission of an essential fact which the Commission has to prove namely the means of the defendant. Instead the Commission seem to rely upon the fact that Regulation 33(1) allows for an inquiry into the liable person's "conduct and means" to establish both facts which the Commission must prove namely that he has or had the means to pay and that he wilfully refused or culpably neglected to do so. As Brooke LJ held, these two processes are (or, as I understand is often the case, can be) impermissibly muddled up. There would be nothing wrong with the inquiry into means being conducted by the Commission proving that the defendant has – or at some time after the making of the liability order had - the means to pay and, having established the case to answer on that, going on to consider his conduct and whether there is wilful refusal or culpable neglect. The danger is that the two stages are rolled into one – little or no evidence of means but get the defendant into the witness box to explain himself. That is impermissible muddling up.

44. Furthermore just as the Family Proceedings Rules required the respondent to show cause why he should not be committed to prison for his default, so too the summons in this case requires the defendant to show cause why a warrant of commitment should not be made. The requirements are indistinguishable. In Mubarak that was held to involve putting the burden of proof upside down. I cannot see how the same conclusion does not follow in this case. The ratio of Mubarak is clear enough. I regret that I cannot see why the same reasoning does not compel us to reach the same conclusion here, namely that the procedures in fact adopted are frequently not compliant with Article 6.

45. In his oral argument Mr Eadie went further. He submitted that we should hold that Mubarak was decided per incuriam. If I understand this argument correctly, it was submitted that the error in Mubarak was to rely only on Engel and not to have regard to the earlier decisions of the European Court of Human Rights in Lingens and Leitgens v Austria (1982) 4 EHRR 373 and Salabiaku v France [1991] 13 EHRR 379. I have two difficulties with this submission. The first is that this Court was instructed by the House of Lords in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465 at [43] per Lord Bingham of Cornhill:

"It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here."

So even if Lingens and Salabiaku could lead to a different result, I am compelled to follow Mubarak.

46. Secondly I do not see that either Lingens or Salabiaku have any relevant application here. In Lingens the particular method chosen by the Austrian legislature to regulate the private prosecution offence of criminal defamation in the press was to lay down a general criminal liability for statements which per se may be considered as defamatory and to provide a special defence if the accused could prove the truth of his statement: see paragraph [4]. It was held that although the burden of proof was shifted to the defence as regards the establishment of the truth of the statement at issue, that in no way meant the accused had to prove his innocence and so there was no violation of Article 6(2) of the Convention. In Salabiaku there was an express presumption of criminal liability under the French code in question and the court held that presumptions of fact or of law operate in every legal system and that the Convention did not prohibit such presumptions in principle. Contracting States had to remain within certain limits in this respect as regards criminal law. States are required to confine presumptions of fact or of law within reasonable limits which take account of the importance of what is at stake and maintain the rights of the defence: see paragraph [28]. In those cases there was a statutory provision for the transfer of the burden of proof or for the existence of the relevant presumption. In our case there is none. The statutory provision is s. 39A. As I have already held, this - as I think Mr Eadie concedes, indeed asserts - places the burden of proof squarely on the Commission to establish all the relevant facts which include proof of means and the wilful refusal/culpable neglect. The statutory provision is compatible with the Convention. Where the system breaks down is in the unregulated procedures which are adopted and the form of the summons which requires the defendant to show cause, i.e., per Mubarak, reverses the burden of proof. The procedure adopted is flatly contradictory to the statutory scheme itself. That is why it is obnoxious. That is why it is unreasonable and cannot be justified.

47. We were referred to R v Keogh [2007] EWCA Crim 528, [2007] 1 WLR 1500, a case under the Official Secrets Act 1989. So once again the Court is considering a statutory provision. Lord Philips of Worth Matravers C.J., giving the judgment of the Court observed:

"6. To require a defendant to prove anything, whether positive or negative, in order to prove that he is not guilty of a crime might, on the face of it, appear to conflict with the presumption of innocence required by Article 6. To interpret Article 6 in this way would, however, conflict in some areas with the requirements of an effective criminal law and the Strasbourg Court has not so interpreted the Article.

...

11. In Sheldrake [v Director of Public Prosecutions [2005] 1 AC 264] Lord Bingham of Cornhill reviewed both the Strasbourg and the domestic authorities and summarised their effect at paragraph 21 as follows:

"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."

..."

It seems to me that the case is being made over-complicated by reference to this great body of jurisprudence. A procedure properly applying s. 39A would be fully compliant with our Convention obligations. The section recognises that the burden of proof is on the Commission. The nature of the proceedings is criminal and so the criminal standard of proof applies. S. 39A preserves the presumption of innocence. The practical problem arises in the need for the Commission to obtain and then provide evidence of the defendant's means and his neglect or default. The defendant can not be required to incriminate himself yet the very purpose, or at least effect, of the a means inquiry as part and parcel of the committal hearing is to do just that and compel him - when otherwise not a compellable witness - to prove the case against himself. Somehow the Commission has to give some evidence that he has or had the means to pay the child support that had been found to be due under the liability order. If some such evidence is given then the defendant has the choice: he can submit there is no case to answer or he can accept that the evidence, limited as it may be, nonetheless may still be enough to prove, even beyond reasonable doubt, that he has or had means to pay unless he has, and chooses to call, other evidence, which invariably would include his own, to show that would be the wrong inference to draw. The evidential burden of proof shifts. There is nothing wrong with that. It happens every day in every court. The defendant then gives evidence to defeat the inference that will be drawn if he gives no evidence on the question. That is not the kind of reverse burden of proof with which this great array of authorities is concerned. That was part of Mr Eadie's submissions to us and in that regard he was absolutely right.

48. Nonetheless for the manner in which the summons is framed, for the failure fairly to provide evidence of the material facts and for the muddling up of the means inquiry and the committal itself, the procedures adopted do not comply with the rights to a fair trial and were flawed accordingly. The appeal should, therefore, be allowed and the orders for commitment set aside.

49. I reach this conclusion with considerable reluctance. Without the carrot – or the stick – of commitment the Commission's chances of recovering arrears of child support are very significantly reduced, if not almost completely emasculated. That is a most unsatisfactory state of affairs. The position is capable enough of easy remedy. The regulations should distinguish between a means enquiry and the committal proceedings. Rules analogous to the Practice Direction for committal in the High Court and County Court can remove the other anomalies and the position is capable of being put right without too much delay or too much difficulty. I hope those steps will be taken by the Commission as a matter of urgency.

What's left in these appeals?

50. In the light of the main conclusion I have reached, the other points taken are of less, even trifling, significance.

Mr Gibbons' appeal

51. In his case the sentence of imprisonment has been suspended on terms that he pays £5 per week. He owes £2,895 so it will take him 579 weeks, over 11 years, to discharge the arrears and throughout that period he has the threat of imprisonment hanging over his head. In my judgment that is an unreasonable and disproportionate penalty. No period is set by the statute or by the regulations as the upper limit of the length of suspension of the committal order but s. 40B does provide that the liable person should not be disqualified from driving for more than two years. A sentence of imprisonment would not be suspended for more than two years in the criminal courts. In R (Cloves) v Ealing Justices [1991] RVR 169, a case concerning the committal of a defaulting rate payer, Lord Justice Nolan stated:

"... The criminal courts, when imposing fines upon convicted defendants of limited means, frequently provide for the fines to be paid by instalments over a period. There is no fixed limit to the period over which payment can be ordered. It has recently been indicated by the Court of Appeal that in appropriate circumstances a period of 3 years might not be excessive ...

... In my judgment it would be a very rare case indeed in which a defaulting rate payer could properly be ordered, on pain of a sentence of imprisonment, to make payments in discharge of the arrears for a period anywhere near approaching 8 years. In my judgment, with great respect to the justices, unless they were confident that she could pay it off more quickly they should not have made an order in those terms ..."

For the sake of consistency, I would hold that the upper limit of the period of suspension should rarely exceed 2 years. Nothing prevents the Commission from applying for a further commitment to recover any arrears still outstanding thereafter.

Mr Karoonian's appeal

52. He complains that no consideration was given to the interests of his children. He relies on R (on the application of Aldous) v Dartford Magistrates Court and Gravesham Borough Council [2010] EWHC 1919 (Admin) (2011) 175 JP 445, in which Mr C.M.G. Ockelton, sitting as a Deputy High Court Judge, observed at [16]:

"The existence of children cannot of course keep a person out of prison who should properly be sent to prison, but a sentencing court needs to be able to bear in mind what the effect on the children will be and, if there are children, and if the court does not have the information it needs in order to assess the effect of the parent's imprisonment on them, then the court must make enquiries so that it is properly informed."

That is as may be. Here the children were supposed to the beneficiaries of the assessment for child support made in respect of them and the court is, nominally at least, using commitment as a weapon of coercion to recover that maintenance. Their interests are involved and to that extent are taken into account. I am not saying the court should be blind to the effect of imprisonment upon them and of course their interests must be taken into account. In this category of case it is easier to see that their interests are being served by the penalty imposed.

53. Mr Karoonian also complains about a procedural failure in his case. It will be recalled that the case was listed for the court to address the legal issues that were being raised on his behalf by his solicitor. It was then further adjourned for legal argument for 3 hours. We are told that some evidence was served on his solicitors but only shown to him at the court, leaving him with inadequate opportunity to digest it or to obtain any evidence to rebut it. Moreover only one page of a relevant document was served, not the whole document. Far from confining the matter to legal argument, the magistrate required the case to be dealt with on the merits leading to the order that was made. The Convention makes clear that there should be adequate time to deal with evidence and the district judge may have been hasty in refusing to allow that time. If a document is to be put in, the whole document must be proffered, not just a selected extract from it. If the case is listed for directions or for legal argument, it can be said that it is unfair to rush the defendant into a hearing on the merits. I am just about persuaded that cumulatively there were these procedural errors but I regard this part of the case as of no great significance or importance given that for other reasons the appeal should succeed.

Conclusions

54. For the various reason set out I would allow both appeals and discharge both orders of commitment.

Lord Justice Richards:

55. I agree with Ward LJ that both appeals should be allowed and the respective orders of commitment be discharged. To a large extent I also agree with his reasons for reaching that result. The one section of his judgment in relation to which I have some reservations is that concerning the general compliance of the practice and procedure of the committal proceedings with the right to a fair trial (paras 34-49. Even there my reservations are limited in nature.

56. My starting point is that the statutory scheme under ss.39A-40B is capable of being operated in compliance with article 6. I agree with Ward LJ that, although s.39A(3) provides for the court to "inquire" as to the defendant's means and whether there has been wilful refusal or culpable neglect on his part, and s.40(l) requires the court to be of the "opinion" that there has been wilful refusal or culpable neglect, the burden lies on the Commission to prove to the criminal standard that there has been wilful refusal or culpable neglect on his part (which will necessarily include proving that the defendant has or has had the means to pay the unpaid amount). The District Judge in the case of Gibbons was wrong to say: "The court is required simply to form an opinion as to whether there has been wilful refusal or culpable neglect. There does not seems to be any burden of proof no[r] standard other than that of 'opinion'. The court must be satisfied to the criminal standard, on the basis of all the evidence before it, that there has been wilful refusal or culpable neglect. So much, indeed, is common ground between the parties.

57. It follows that in practice the Commission must adduce sufficient evidence to establish at least a case to answer. In the generality of cases the exercise may not need to be a particularly elaborate one, since there will be a history of default from which inferences can properly be drawn. But the exercise is an essential one: the defendant is not required to give evidence or to incriminate himself, and in the absence of a case to answer he is entitled to have the application against him dismissed without more. If the Commission establishes a case to answer, there will be an evidential burden on the defendant to answer it, but that is unobjectionable in article 6 terms. I would add that there is no requirement under article 6 for the Commission to serve evidence in advance of the hearing, but if it chooses to wait for evidence to be given by the presenting officer at the hearing, the court must be astute to ensure that the defendant is not taken by surprise and that the matter can proceed at that hearing without unfairness to him.

58. Provided that the burden and standard of proof and the need for procedural fairness are borne clearly in mind, there is in my view no inherent objection to considering the defendant's means and the issue of wilful default or culpable neglect in a single hearing. They are closely related matters, and it seems to me that the statute contemplates that they will be inquired into at one and the same time: s.39A(3) provides in terms that on an application under subs.(1) "the court shall (in the presence of the liable person) inquire as to (a) whether he needs a driving licence to earn his living, (b) his means, and (c) whether there has been wilful refusal or culpable neglect on his part". In so far as Ward LJ considers that this involves an impermissible muddling up of two distinct processes, I respectfully disagree. Mubarak v Mubarak was concerned with a specific regime and I do not read it as laying down any general rule that issues of means and wilful refusal or culpable neglect cannot be considered together. We were not taken to any Strasbourg case-law laying down such a rule. In Benham v United Kingdom (1996) 22 EHRR 293, which involved a very similar procedure (see para 19 of the judgment), there was no suggestion that in this respect it offended article 6.

59. For like reasons, I see nothing inherently wrong with the fact that the regulations cited at para 34 of Ward LJ's judgment contemplate that issues of means and conduct will be considered at the same "inquiry". I do not accept that the regulations need to "distinguish between a means enquiry and the committal proceedings" (para 49), if by that it is meant that the regulations must provide for them to be the subject of distinct processes.

60. On the other hand, I agree with Ward LJ's criticism of the language of the summons used in these cases. In stating that " you are required to show cause why such a Warrant or Order should not be made", the summons fails to respect the burden of proof and sends out a seriously erroneous signal both to the defendant and to the court.

61. More generally, I am concerned that the Commission has not been giving sufficient thought in practice to the implications of the burden of proof upon it, and I share Ward U's view that the practice and procedure in this area need to be improved as a matter of urgency. For the reasons outlined above, however, I take the view that the changes required in order to bring the practice and procedure into line with article 6 are relatively limited.

62. None of this affects the outcome of the appeals, which fall to be allowed in any event for the reasons given by Ward U at para 20 (Gibbons) and para 31 (Karoonian).

Lord Justice Patten:

63. I agree that the appeals should be allowed for the reasons set out in paragraphs 20 and 31 of the judgment of Ward LJ. Insofar as there is a difference between Ward and Richards U about certain aspects of the practice and procedure adopted in committal proceedings in this type of case I share the views of Richards U. But as the points are not critical to the outcome of these appeals I do not propose to say anything further about them.