Examination of Witness (Questions 20 -
39)
MONDAY 24 JUNE 2002
SIR HAYDEN
PHILLIPS GCB
20. I would suggest something entirely different
which is that if I want to have a good write-off rate in terms
of my indices of management—presumably you require some
performance-related indices of some kind—I would cancel
quite a lot so that the write-off rate was not quite so high,
indeed we discover in my own patch in West Yorkshire there is
quite a low write-off rate but a very high cancellation rate.
Going quickly through the figures, there does appear to be a correlation
between the extent to which one writes off and the extent to which
one cancels. Is there not a correlation? Has anybody bothered
to look at that?
(Sir Hayden Phillips) I thought about that. I concluded
that whatever the superficial look is, there is no such correlation.
Cancellations are in a real sense obligatory on the court. When
a person reaches a certain situation—
21. I think a judgement is being exercised,
with all due respect.
(Sir Hayden Phillips) They are judicial decisions
and I should be pretty careful as a member of the executive not
to comment on that.
22. I am a member of the legislature and I will
comment. It would certainly occur to me, and it has occurred to
you as well, that it is possible to manipulate the figures in
that way. I guess you would measure on write-off rates rather
than on cancellation rates because the write-off rate is a measure
of one's efficiency as a magistrates' court, whereas it could
be argued the cancellation rate is not. I suspect that some manipulation
is going on between the two. I want to ask about a case of which
I am aware which illustrates some general points. I have a man
who is a French citizen driving on a British road in my constituency
and he kills somebody who was driving on the correct side of the
road and the French driver was on the wrong side of the road from
the English point of view and my constituent was killed. There
is an argument about the kind of charge he faced but I do not
want to go into that. He was fined £500, which you might
think is cheap for a death and I certainly do think that. He then
went back to France with three points on his licence, which do
not count in France so he was able to continue with his business,
but the court never bothered to chase the £500 because he
had gone back to France. What should the court have done in a
case like that?
(Sir Hayden Phillips) As far as I know, there is no
means for an English court to enforce a fine on a foreign national
who then returns home. I am not passing any judgement on that.
As far as I know, subject to correction, that is the fact. The
way we would have to deal with that would be within the context
of the European Union or bilaterally or whatever, to have mutually
agreed and understood arrangements between any one country and
another for the enforcement of financial penalties abroad on foreign
nationals.
23. That is my understanding. I just wonder
at the magistrates' bench, which was advised—I do admire
the magistrates tremendously but they do rely to some extent upon
advice which they receive—that a fine levied on a foreign
national would not be paid if that person chooses not to pay.
I just wonder about the guidance. He is presumably not the only
person who lives abroad and has committed an offence who has been
fined and failed to pay. I bet there are significant amounts of
money uncollected from foreign nationals. Has that been looked
at?
(Sir Hayden Phillips) My understanding is that we
need a legal and agreed basis between ourselves and other countries
to enable this to be enforced.
24. The way in which the fine is levied might
be considered. Presumably one can insist the money is paid before
he leaves the court?
(Sir Hayden Phillips) In that sort of case what the
magistrates should do and would do—and I do not know whether
they did—is precisely what you said, to try to make sure
that the person did pay. The magistrates are entitled—I
forget which section of which Act it is—to cause someone
to be searched to see whether they have the money on them and
the wherewithal to pay.
25. He had a wagon.
(Sir Hayden Phillips) They have to be very careful
about how they handle that because in a vast array of cases people
will not have the money and even if they did have some on them,
the magistrates are required to make sure that taking the money
away does not cause more injury to the person than getting it.
26. I am certainly not xenophobic in any way
but I do think there is an issue about foreign nationals not paying
fines. If it has happened in my constituency in the last year,
I am sure it is happening elsewhere. Do we have any statistics
at all on this particular matter?
(Sir Hayden Phillips) I do not have statistics.
27. Would these fines be subject to cancellation
or write-off?
(Sir Hayden Phillips) They would be subject to write-off.
28. They would be written off rather than cancelled.
(Sir Hayden Phillips) Yes. The right way forward is
to have an agreement and we are working on this in the European
Union to get a framework agreement so that financial penalties
in one state can be enforced in another.
29. In the meantime do you think it would be
a good idea for somebody centrally, probably yourselves, to give
some kind of guidance to magistrates' courts in such eventualities
to avoid this kind of situation arising in the future.
(Sir Hayden Phillips) I see the point. It will take
a couple of years, but pending clear-cut agreement in the European
Union to indicate to them the steps they could take to minimise
the risk of the fine not being paid is certainly something I will
have a look at.[2]
30. I want to raise one final point, again about
the same case but it does raise generic issues and that is why
I am using it. It turns out this Frenchman was given free legal
aid and advice. I am not talking about foreign nationals now,
I am talking more generally. It occurs to me that many of these
people now paying fines and the hundreds of millions of pounds
not being paid in fines will be receiving free legal aid and advice.
Presumably in order to obtain free legal aid and advice, all kinds
of information is given by the alleged criminals. Surely that
information could be used in some way to ensure that the court
has data with which to pursue the fine which otherwise is written
off. Is the data available, is it accessible and how is it used?
(Sir Hayden Phillips) You are raising a subject which
has exercised the NAO and this Committee and myself and my predecessors
over many years. In the old days—it has stopped now—we
used to get means information at magistrates' courts for the purposes
of legal aid payment. This was a system which was incredibly bureaucratic,
often wrong and the accounting mechanisms were no good. We have
changed that now. People are entitled when charged with a criminal
offence to legal aid in their defence and we would be in difficulty
with the Human Rights Act if we did not grant it. That is what
happens. The information which is available now to a court about
a person's means and ability to pay depends entirely on the court's
enquiries of that person rather than them filling up any form
about legal aid. We can come on to the issue possibly about whether
there should be a more systematic way of finding out the financial
position of a defendant, but I am afraid that is the position
as it is now.
Jon Trickett: It does seem to me that
it causes great offence when a victim, in this case a widow, discovers
that not only was the fine not paid, that the court had imposed
a fine which could not be levied because it was a foreign national
living abroad, but that the man had received free legal aid and
advice and the data which he gave to the court to get legal aid
and advice was not then used in some way to try to ensure that
the fine was paid. That is the point I was trying to make.
Mr Williams
31. We all accept that the collection of financial
penalties is essential, as it says in the report, if the credibility
of the system as a punishment is to be maintained. It is also
important, as in the case the Chairman cited, if victims are to
receive justice as well where compensation is involved, is it
not? Why is no financial incentive offered to people who pay promptly?
I can understand there being no penalty; since they are not paying
in the first place a penalty would probably not deter them. Why
is there no incentive to encourage people to pay quickly?
(Sir Hayden Phillips) The technical answer is that
it would require legislation to put incentives and indeed sanctions
into play.
32. Is it something you have looked at?
(Sir Hayden Phillips) It is something we are looking
at. There is a general feeling now that arrangements like that
really are worth looking at, provided they do not unfairly penalise
those who genuinely are in financial difficulty.[3]
33. It has taken a long time to get around to
it, has it not?
(Sir Hayden Phillips) Yes, it has.
34. It is a fairly obvious first step. Why do
you think it has not been dealt with before?
(Sir Hayden Phillips) There has been a general consensus
view over the years—and I would not pretend to be an expert
on this—that you should treat everyone in exactly the same
way and you should not try to get incentives into the system.
35. You are supposed to be the expert. That
is why you are here today.
(Sir Hayden Phillips) I am talking about the history
here.
36. As long as the incentive is available to
everyone you are treating everyone in the same way.
(Sir Hayden Phillips) You are then; I accept that.
The simplest answer I can give is that it has not been done, we
are looking at it and it could be of value in the battery of measures
we are looking at it.
37. Are you looking at it through the right
end of a telescope or the wrong end of a telescope? Is it way,
way in the distance, or is it something which is near your desk
for consideration at the moment?
(Sir Hayden Phillips) The second; that it is near
my desk and not a long, long way out there.
38. It is near your desk. Do drop us a note
as soon as it happens. I am sure we would be overjoyed to hear
from you.
(Sir Hayden Phillips) I shall try to keep up my track
record of letting the Chairman and PAC know before something happens
rather than afterwards.4
39. That is very good, as long as it then happens
afterwards. It astonished me to find that magistrates may not
have information on an offender's outstanding financial penalties
at the time of the sentence. Magistrates can have someone sitting
in front of them who is a gross and persistent non-payer and quite
happily be imposing more financial penalties on him, not realising
that he or she has not the slightest intention of paying in the
first place. Why is that information not available?
(Sir Hayden Phillips) In some cases what you say is
true; it is not generally true of all cases. Again it is a question
of making sure you have information systems which are instantly
available, which have the right records and information in them
and frankly we do not have those yet, which is why we are setting
up new IT systems in order to deliver them.
2 Ev 27 Back
3
& 4 Ev 27 Back
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