Karoonian v Child Maintenance and Enforcement Commission (CMEC) [2012] EWCA Civ 1379

“… 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.”

“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).”

“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.”

“… 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 …”

“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.”

“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.”

“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.” (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.”

“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.”

“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.”

“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”

“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.”

“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.”

“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.”

“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." …”

“… 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 …”

“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.”

“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’”

“33. This section applies where – (a) a person who is liable to make payments … fails to make one or more of those 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. (a) a person who is liable to make payments … fails to make one or more of those payments; and (b) it appears to the Commission that: (i) it is inappropriate to make a Deduction from Earnings Order against him …”