Not so fine

New powers for the enforcement of fines imposed by magistrates' courts came into operation in England and Wales on 27 March 2006. The new system transfers responsibility for fine enforcement from magistrates' courts to a new body of 4,000 fine collection officers, who are given wide powers to recover money from defaulters. The aim of the legislation is to strengthen the effectiveness of the fine as a criminal penalty and to increase collection rates. This is to be achieved at the expense of long-established civil liberties and it is easy to foresee that the enactment of such draconian powers is likely to prove a greater evil on occasion than the problem the new powers are intended to solve. Of particular concern are the risks posed to vulnerable individuals (particularly single women and lone parents), the danger of mistaken enforcement against innocent third parties and wholly disproportionate action in breach of human rights. This article examines the human rights implications of the new powers, particularly in connection with forced entry, search and seizure, as well as possible remedies where rights are infringed.

Fine collection orders

The Courts Act 2003 introduced the concept of the fines collection order, which is central to the operation of the new scheme. The Act itself has been subject to extensive amendment by regulation, and more amends are imminent. The main provisions are contained in Sched 5 to the Act, as amended
by the Fines Collection Regulations 2006 (SI no 501) and the Collection of Fines (Pilot Scheme) and Discharge of Fines by Unpaid Work (Pilot Schemes) Amendment Order 2006 (SI no 502); the amended Magistrates' Courts Act 1980 also partly governs enforcement on default.

When imposing a fine on conviction, the magistrates' court may choose to grant an all-purpose collection order allowing a fines officer to act in its place. Instead of enforcement being undertaken by the court, key decisions may now be taken by individual fines officers who can effectively act as one-man courts regarding many decisions on recovery, subject to a right of appeal back to the magistrates' court.

The collection order must contain a number of prescribed matters, including:

• the responsible fines officer to which the fine is allocated;
• periods for payment; and
• payment by instalment or by deduction from earnings or benefits.

There is scope to vary the terms by applying to the officer or to the court, for example on a change of circumstances.

New enforcement powers

The new powers available to individual officers go further than anything previously allowed under the Magistrates' Courts Act 1980. New powers allow a fines officer to:

• refer a fine back to court to be increased by 50 per cent where wilful refusal or culpable neglect by the defaulter is established;
• break into private dwellings to seize goods;
• conduct body searches on individuals who are subject to arrest for commitment proceedings (including searching the mouth); and
• clamp and seize vehicles.

Not only have many of these provisions slipped virtually unnoticed into law (the entry and search powers mostly concealed in a new Sched 4A to the Magistrates' Courts Act 1980 enacted by the Domestic Violence, Crime and Victims Act 2004, s 27 and Sched 4, and regulations made in 2006), but many of the safeguards that exist for the exercise of those powers in other situations are simply absent. It is not even clear on the face of the legislation to whom fines officers are ultimately answerable, although an appeal will lie to a magistrates' court against certain enforcement decisions, such as clamping vehicles.

Initial considerations and steps on default of payment

The most important role for a solicitor will be ensuring that the initial level of fine is kept to a minimum and that the court has as much information as possible about the offender's means and circumstances when the fine is set and the collection order made. Detailed information about the defaulter's means and circumstances are likely to remain important throughout.

Enforcement sanctions are triggered by default on a fine payable under a collection order. Upon default, a variety of situations may arise, including referral back to court for a fine increase (see below), or enforcement action, with or without reference to the court. In each case the fines officer must serve a 'further steps notice', informing the payer that the officer is either referring the payer back to court or considering taking further enforcement steps.

If the fines officer elects not to take a case back to court s/he has a range of powers to take enforcement action. These include:

• issuing a warrant of distress;
• registering the sum in the register of judgments and orders;
• making an attachment of earnings order or deduction from benefits;
• making a clamping order; and
• taking proceedings through the High Court.

Real problems are likely to arise where a default is recorded and the fines officer elects not to take a case back to court, but proceeds to enforcement by issuing a warrant of distress under Art 7(f) of the Fines Enforcement Amendment Order 2006 (SI no 502). Taking effect in conjunction with the power to force entry, the change has effectively swept away the rule of an Englishman's castle protection established by Semayne's Case (1604) 5 Co Rep 91 and long celebrated as one of the foundations of English liberty.

Human rights principles and enforcement powers

Strasbourg jurisprudence is likely to play an important part in mitigating the arbitrary and wrongful exercise of enforcement powers. The power to increase fines has already been subject to amendment in light of Art 6(1) of the European Convention on Human Rights. As originally envisaged, fines officers were entitled to increase fines without reference to court, but now are limited to only making a referral to court to increase a fine. This would have infringed the provision under Art 6(1) which provides:

'In the determination of his civil rights of obligations, everyone is entitled to a fair and public hearing by an independent and impartial tribunal established in law. Judgment shall be pronounced publicly.'

The area is not yet free of difficulty since one of the principles on which a fine may be increased is culpable neglect, which is notoriously hard to define. Under Strasbourg jurisprudence, laws must be certain and some doubt must remain about whether culpable neglect is sufficiently precise; culpable neglect must be proved. Furthermore, judicial orders must be certain and there is an argument that this must also go to the quantum of the fine. It is possible that the powers for a 50 per cent increase at different stages of the payment process might constitute a breach of this principle, particularly where a default occurs towards the end of a payment period or after a substantial amount of the fine has already been paid off.

Powers of entry

With respect to powers to force entry, it should be noted that Strasbourg jurisprudence is not as far reaching in its protection as English law (K v Sweden (1991) App. 13800/99 (1991) 71 DR 94), and while Art 1 entitles a person to peaceful enjoyment of possessions, the provisions do not impair the right of a state to 'enforce such laws as it deems necessary to secure the payment of taxes or other contributions or penalties'.

However, Art 8 provides protection for the home, privacy and family and it is a further condition for the lawfulness of all measures that result in an interference with Convention rights that they must be proportional to the goal to be achieved. In particular, forced entry and seizure of goods may be considered disproportionate in a case where a fine is small and disruption to domestic life extensive or oppressive, for example, against a single parent with small children. Proportionality has already been considered applicable in cases of imprisonment for fine default in England and Wales (R (Stokes) v Gwent Magistrates' Court [2001] 766),it is also possible that seizure of exempt goods or seizure where the sum owing upon a fine is small may be considered disproportionate in terms of Art 1.

In considering the proportionality of a house search in Camenzind v Switzerland [1997] 28 EHRR 458, the European court took account of the manner in which the search was conducted, whether the applicant was present and represented, the number of personnel involved, the time taken, the physical extent of the search, and the information given to the applicant.

Negligence by police in obtaining a magistrates' search warrant resulting in forced entry to a home was considered by the Court of Appeal in Keegan v Chief Constable of Merseyside [2003] 1 WLR 2197; (2003) 147 SJ 1443). Although a claim failed for malicious procurement of a search warrant, the case occurred before the Human Rights Act came into force and the speeches of both Kennedy and Ward LJJ suggested that future cases might fall to be decided differently in light of human rights principles. A further factor in Keegan was that the court confirmed the continuing applicability of the Constables Protection Act 1750, which it held continues to apply to actions by police under a
magistrates' warrant.

Body searches

Of equal concern are the powers to conduct body searches. The legislation lacks any express safeguards as to how search and entry powers are to be exercised. The inclusion of search powers (achieved by a schedule that appeared in the Domestic Violence, Crime and Victims Act 2004) has been justified by the government as a step in tackling knife crime, though this novel idea fails to explain why a power to search the mouth is included. Unfortunately, the House of Lords' decision in Wainwright v Home Office [2003] 3 WLR 1137 has firmly shut the door on the development of any judge-made privacy law in the UK. In Wainwright, which arose from an improper strip search of relatives of a detained prisoner, their Lordships rejected the concept of 'trespass to the person' as the basis of a claim and refused to create a tort of infringement of privacy based on an extension of Art 8 of the Convention. Nonetheless, the judgment acknowledged that claimants may still seek compensation for battery (see below).

Ultimate responsibility

A further open question is on precisely whom liability for the wrongful actions of a fine officer should ultimately fall. Certainly, an individual fines officer may be personally liable for wrongful acts and defaults, applying general tortious principles, but the question of whether the magistrates' court or the Courts Service are exposed to liability is more difficult to establish. The problem is complicated by the extensive statutory protection given to justices and because the question of forcing entry to collect a fine does not appear to have been before the courts since R v Myers (1786) 1 TR 265. Strasbourg jurisprudence dictates that a person is not to be left without a remedy under the domestic law of a Convention country, an issue also noted in Keegan, so the point will have to be resolved.

Liability for wrongful actions at common law

Aside from human rights principles, common law is likely to provide a number of remedies from oppressive or unlawful enforcement activity. Actions for trespass, assault and unlawful interference with goods will remain potentially available in civil law to any person whose home or liberty is the subject of improper enforcement action (eg, enforcement at the wrong address). It should be noted that, with respect to entry and searches of persons under arrest, the individual retains his/her right to use reasonable force against any unlawful interference with his/her person or liberty. However, there remain many uncertainties about the legal position. While an offence of assaulting a fines officer in the execution of enforcing a fine is created, a key question will be whether the fines officer is acting in the execution of his/her duty as with cases of assault on a constable under the Police Acts.

A person who makes an honest if unreasonable mistake as to the identity of a fines officer would be entitled to claim self-defence following Blackburn v Bowering [1994] 3 All ER 380, CA. That a claim for battery may be sustainable as a result of an improper body search was confirmed in Wainwright, where Lord Hoffmann affirmed the definition of battery in Collins v Wilcock [1984] 1 WLR 117. This maintains that a battery is 'any intentional physical contact not generally acceptable in the ordinary conduct of daily life'.

The unreformed law of bailiffs and the levying of distress in which fines officers will be operating remain a minefield. Long-standing plans to reform bailiff law may have been shelved, but this area has much potential for generating civil claims against fines officers because of the technicalities of the law of distraint. The best guide addressing the complexities of the issues remains The Law of Seizure of Goods: Debtors Rights and Remedies by John Kruse (2000). A further difficulty is that even where goods are distrained, the prices raised at auction are unlikely to pay the cost of either the fine or enforcement activity.

Challenging clamping orders

Fines officers are also empowered to clamp motor vehicles registered in the name of the fine defaulter as a step towards removing and selling a vehicle to discharge a fine. The Fines Collection Regulations 2006 govern the procedures for the clamping, removal, release, storage and sale of clamped vehicles. To use a clamping order, the fines officer must be satisfied that the payer has the means to pay the sum due and that the value of the vehicle, if sold, would be likely to exceed the sum due.

The court has the ultimate decision on whether a vehicle should be sold. Sale cannot take place until one month from the date on which the vehicle was clamped, but a hearing to determine whether the sale should take place may be held after 21 days of the order. The court must notify the payer who may attend the hearing and make representations.

A clamping order cannot be used against the following:

• a vehicle not registered in the name of the defaulter under the Vehicle Excise and Registration Act 1994;
• a vehicle with a disabled badge, or where there are reasonable grounds to believe it is used for the carriage of a disabled person;
• a vehicle used for fire, police or ambulance purposes;
• a vehicle used by a doctor that displays a British Medical Association badge or other health emergency badge showing the doctor's address.

In cases of irregular clamping, regard should be given to the appropriate provisions of the Fines Collection Regulations. These provide that a person may apply for the release of a vehicle and/or its return. The application may be made to a fines officer or storage contractor, as appropriate, with a further right of appeal to the magistrates' court under Art 28 of the Fines Collection Regulations 2006. The appeal must be brought within ten days of the request being refused, or within seven days of the request being made. The appeal must be made in writing and the court must list it for an expedited hearing. The designated court officer must inform the fines officer or contractor of the hearing and they must attend for the purposes of answering questions. It appears that a wide discretion is given to magistrates, as the court may either dismiss the application or order the release of the vehicle with or without payment of charges. A civil claim would also be available under the Torts (Interference with Goods) Act 1977 in a case of negligence.