Criminal Justice and Immigration Bill

Part of the debate – in the House of Lords at 4:00 pm on 3rd March 2008.

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Photo of Lord Bach Lord Bach Government Whip, Government Whip 4:00 pm, 3rd March 2008

As I understand it, it is not defined in statute. It is defined in guidance of various kinds. We, too, are troubled by that expression in this context, and I shall say a little more on that shortly. Subsection (4) of the proposed new clause attempts to define a vulnerable person for the purposes of this power.

Let me explain to the Committee the long process which would have to be gone through before a person sentenced to a fine in their absence ever got to the stage of having a bailiff at the door attempting to seize assets to pay a fine. It would involve many different opportunities for the offender to make it known that he or she found it difficult or impossible to pay the fine. The offender would have numerous opportunities to contact the court and to explain the circumstances.

Following any charge or final notice, depending on the offence which has been committed, the offender will receive a summons informing him when his case is due to be heard, together with a request to provide means information. If a person is summoned to attend but does not, he may be tried in his absence. That decision is made by the court, but it must have regard to the principle that a defendant is entitled to a fair trial, which must include a fair opportunity for the accused to be present and/or to be legally represented. The principle that the defendant should have a fair opportunity to be present does not amount to an unlimited opportunity or a defendant could indefinitely postpone the proceedings. There can be no veto on the court hearing a case in the absence of an accused. So trials in absence should and do happen, and the offender may be fined.

Where the offender did not respond to a summons and did not produce any means information, a fine or other financial penalty can be imposed, whether it is a compensation order, costs or victims surcharge. It may have to be imposed in the absence of any information about the offender's particular circumstances. Since March 2006, the fines collection scheme provided for by the Courts Act 2003 applies and a collection order will normally be made where a fine is imposed. The offender will receive a copy, along with a notice of financial penalty. This will explain how to pay and offers the offender an opportunity to make contact with the court to ask for time to pay if they cannot afford to pay the fine as ordered. But if the offender fails to pay and makes no contact, what happens then? The fines officer will issue a final demand, a further steps notice, saying that unless payment is made, enforcement action will start without further notice. This further steps notice again provides the offender with an opportunity to engage with the court and ask for time to pay. The notice also explains the consequences of further default and outlines the sanctions which the court can impose.

If the offender still fails to respond, after approximately three weeks the fines officer will decide which enforcement sanction to deploy once a check has been made to ensure that the offender has neither made payment nor contacted the court to explain why they have failed to do so. While the ultimate sanction for fine default is imprisonment, this, I think the Committee will be pleased to hear, is a rarely used sanction. Of course it is used, but not often these days. However, the fines officer and the court have at their disposal a number of enforcement sanctions which they will consider and/or try before getting to this stage.

Let me move on to explain the enforcement process for a fine so that I can demonstrate the varied opportunities which offenders have to make contact with the court. The first sanction usually applied on default is either a deductions from benefit order for those offenders who are on benefits, or, in the case of employed offenders, consideration will be given to an attachment to earnings order. The court will only be able to make these orders if it holds the relevant information about the offender. If either order fails or cannot be used, the fines officer will issue yet another notice, another further steps notice, seeking payment. This notice asks the offender to make contact with the court and warns that failure to do so will lead to further enforcement action, including registration of the fine, clamping of the offender's vehicle or—and here we come to the distress warrant—to seize the offender's goods. If the offender again fails to respond to the notice, the fines officer will order the appropriate sanction. At this point the offender would have been contacted by the court on at least three occasions, if not more, and this does not include in practice the numerous text messages and telephone reminders that many courts now provide.

Let us suppose that if the court does issue a distress warrant after all these steps have been taken, what can be done to stop the enforcement process because unbeknown to the court, the offender is a vulnerable person? The distress warrant will be passed to contractors currently providing bailiff services to execute on behalf of the court. The bailiff will leave a notice of attendance to remove goods at the premises. This will allow a further seven days in which to make payment. If that does not happen, the bailiff will attempt to execute the warrant at the offender's last known address. But if it is clear to the bailiff that the offender appears to be vulnerable, what is to be done? The situation is dealt with by the National Standards for Enforcement Agents which provide guidance intended to build on existing good practice and raise the levels of professionalism across the enforcement sector. The standards, which are guidance rather than law, provide that in respect of vulnerable people who are identical to those identified in new Clause 122A as drafted, agents must use their discretion on how to proceed and that they have,

"a duty to contact the creditor and report the circumstances where there is potential cause for concern".

I hope that the Committee agrees that this is entirely right. Not all those listed in the new clause would be automatically considered to be vulnerable because it will depend on the circumstances; they may not necessarily be so. Others may be vulnerable for reasons not listed in the proposed new clause. Here I come back to the words of my noble friend Lord Clinton-Davis by saying that this demonstrates to us the dangers of setting out such a list in the Bill.