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Culpable neglect and wilfull refusal

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Re: Culpable neglect and wilfull refusal

Postby dls » Mon Oct 03, 2016 6:15 pm

I would need to see any Regulations before I accept that the position is as described. I looked up teh enforcement policies of several councils. None admitted to such a policy directly, though one can see they would not wish to advertise it.

Nor were the policy declarations consistent. Does this suggest that it is more a matter of policy than of Regulation?

Indeed: "the sole purpose of issuing a warrant of commitment is to compel the debtor to pay where he has the means to do so. In R v Leicester Justices ex parte Deary, (Unreported 7 June 1994 (QBD)) Brooke J stressed that:"The court has now repeatedly made clear that the purpose of the powers of the court under Regulation 41 are not the powers of punishment for past misdeeds, but powers to ensure future payment of past liabilities.""

How can it both be there to ensure future payment of past liabilities if the term of imprisonment operates to excuse the debt?
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Re: Culpable neglect and wilfull refusal

Postby dls » Mon Oct 03, 2016 6:40 pm

Can I also point you to:
http://www.localgovernmentlawyer.co.uk/ ... &Itemid=24

Where the author, perhaps unwisely, invites correspondence.
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Re: Culpable neglect and wilfull refusal

Postby Spankymonkey » Wed Oct 05, 2016 9:04 am

"If you have not paid the total sum due to the Council before the date of the hearing and you fail to appear before the court, a warrant may be issued for your arrest."

Who executes this warrant, court bailiffs or the police? And if you aren't there when they come to arrest you, how long does is this warrant good for? Is it then entered onto the PNC?

Surely if you fail to attend a committal hearing then you have committed a criminal offence. The arrest warrant is then issued in respect of this, rather than your failure to pay the debt. If so, is failure to attend a committal hearing a summary or indictable offence? If it's a summary offence then surely the six month time limit applies?
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Re: Culpable neglect and wilfull refusal

Postby dls » Wed Oct 05, 2016 9:30 am

You take several (unwarranted) leaps forward.

Failure to answer a summons is not itself an offence. If you do not attend, a warrant for your arrest can be requested and if granted it is made available for police officers on their computer systems (on the PNC) so that you can be arrested and brought before the court.

If taken to court and bailed, and you do not answer bail with no proper reason, then that can indeed be a criminal offence.

The warrant is good for as long as it takes to find you. Truth is that the police generally have better things to be doing, but if, for example, someone is stopped for a broken tail light then the PNC may be checked and appropriate action taken.
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Re: Culpable neglect and wilfull refusal

Postby Spankymonkey » Wed Oct 05, 2016 10:01 am

But surely the whole point of the warrant is to force me to participate in some kind of Camera Stellata without a lawyer or a prosecutor.

Hopefully you can correct the error in my logic DLS, but it appears to me thusly:

I ignore every request the council make of me to pay the tax or fill in their attachment of earnings form. They then make good on their threats to issue a warrant of commitment. I am arrested and taken before a district judge for a hearing so he can determine if I am wilfully refusing to pay my debt. To aid him in his decision I am expected to make a statement of means, and declare my income and outgoings. In other words, I am to provide him with the very evidence he needs to potentially convict me.

So I refuse. On the grounds that it’s not my job to prove my guilt, it’s the prosecutions. Of which there isn’t one, because this is a hearing. Even though the judge can decide to send me to jail or give me a suspended sentence at the end of it. In which case it's a trial. Isn't it?

And if I refuse to surrender the evidence the court needs to convict me - even though they could obtain it themselves by plundering my bank records with the appropriate warrant (and a good old fashioned prosecutor) - am I then to be held in contempt of court and sent down anyway?
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Re: Culpable neglect and wilfull refusal

Postby Smouldering Stoat » Wed Oct 05, 2016 4:55 pm

In a modern society it is proper for the State to be able to collect taxes, and if necessary to be able to resort to coercion to do so. Otherwise the burden of taxation falls only on those honest enough to pay unprompted. It follows that paying one's taxes is not optional.

To be clear, we are not dealing with a conviction here: this is a Court exercising its civil jurisdiction. It is not uncommon for people to be sent to prison by the civil courts. These are not convictions, but civil courts have trials just as much as criminal ones do.

It is not optional to provide the information the court needs to conduct a means inquiry. If it were, it would become optional to pay your Council Tax. If you fail to do so, the Court will have to proceed on the information it does have. They're not going to let you off because you refuse to answer. In this respect it's no different to refusing to co-operate with a criminal prosecution. You still go to prison if the court finds enough evidence.
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Re: Culpable neglect and wilfull refusal

Postby dls » Wed Oct 05, 2016 7:12 pm

SM,

Courts come across the deliberately obtuse daily. Short shrift is entirely appropriate. You have seen that the courts are (as they should be) extremely reluctant to send people to prison. However a wilful refusal to obey a lawful order of the court (of the sort you describe) will eventually amount to a contempt of court and is of itself punishable with imprisonment until purged.
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Re: Culpable neglect and wilfull refusal

Postby Spankymonkey » Thu Oct 06, 2016 7:41 am

However a wilful refusal to obey a lawful order of the court (of the sort you describe) will eventually amount to a contempt of court


That's the part I struggle with David. Civil proceedings that command you to incriminate yourself under threat of contempt of court. And I appreciate what you are saying Stoaty, but clearly participation in means testing is optional if you risk contempt of court for refusing. And if the penalty is imprisonment, is the hearing then not conducted to the criminal rather than the civil standard?

Are there other instances of civil or criminal trials where the defendant is compelled to provide the very evidence that the prosecution needs to send him to prison, that they could not obtain themselves?

Also, is there any corresponding legislation to means testing or a right to silence during such hearings, aside from the rules of adverse inference?
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Re: Culpable neglect and wilfull refusal

Postby atticus » Thu Oct 06, 2016 9:23 am

Numerous statutes, relating to tax and other matters, contain provisions compelling production of information even if it may incriminate or give grounds for a civil claim.

A non-tax example would be a liquidator's powers under s236 Insolvency Act 1986 to compel a director to answer questions and produce documents - as the Maxwell brothers discovered in one of the cases relating to their late father's companies.
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Re: Culpable neglect and wilfull refusal

Postby dls » Thu Oct 06, 2016 11:42 am

Are there other instances of civil or criminal trials where the defendant is compelled to provide the very evidence that the prosecution needs to send him to prison, that they could not obtain themselves?


The evidence which sends someone to prison is primarily the refusal to make payment. The refusal to co-operate is of itself evidence of a generally wilful approach to the entire matter.

It is the defendant's behaviour which transforms the proceedings from civil to a quasi-criminal one.
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