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January 16, 2016

How many prisoners are languishing in prison who legally shouldn’t be there?

Around 100 people are imprisoned in England and Wales every year for non payment of council tax. Probably, none of them should legally be there.  Its a tiny drop in the ocean of the prison population, but how many others are behind bars on dubious legal grounds?  Scarily, we only know about the 100 per year because of the research of Rona Epstein, a research assistant of Coventry University.

Rona has studied how and why mothers get imprisoned.  She came across a couple of cases of mothers who had been imprisoned for non-payment of council tax and double checked this was legal.  It basically isn’t.  Though the law allows for imprisonment of council tax, this can only be imposed if this is due to “wilful refusal or culpable neglect” and case law says that imprisonment cannot be used for debtors “when an alternative to imprisonment is available”. There are always alternative ways to get the debt paid, since the court has the power to deduct from earnings or benefits.

Rona was so outraged by one case she came across that she helped her appeal.  Amanda Aldous owed £7000 in council tax.  She was married with five children, the youngest of whom was 15 and had autism.  In 2011, Dartford Magistrates sentenced her to 90 days, even though she had offered to repay the debt at £20 per month.   To her shock, she was sent straight to Bronzefield prison. No-one suggested she might have grounds for appeal, and she had served most of her sentence by the time Ian Wise QC could get her out on bail.   In prison Amanda suffered from severe anxiety, and spent many hours on her own crying.   She won her appeal. The High Court found her sentence unlawful on five grounds, including that the magistrates had failed to establish that her failure to pay was due to culpable neglect or wilful refusal.

So far, so good.  But Rona came across an equally shocking case the other day.  Clare (not her real name) was sentenced to 50 days in August 2014 for the same “offence”, having no previous criminal record and being the sole carer of two children aged 7 and 17.

Its easy to dismiss such cases as unfortunate, isolated incidents, but there are c 100 each each year imprisoned for such debts. I think this raises serious questions about the system

– Magistrates, CPS, defence and legal advisors are not sufficiently aware of both the letter of the law and case law. We have so many laws that few people are actually across the latest in statute and case law; which inevitably leads to the law being misapplied.

– Is the appeals system working properly for the right cases?  Even if the defence in these cases were not up to speed with the case law, surely they could have appealed on the basis of disproportionate sentences?

– Should both the individual magistrates who sat on these cases, and magistrates in general, be told about important appeal judgements?  If all magistrates and legal advisors had known about the successful appeal of Amanda Aldous in 2011, would 89 people have been sent to prison for non-payment of council tax in 2014?

– How many more people are there in prison whose grounds for being there are legally shaky?  I suspect many, partly for the reasons above, partly because there are financial, and cultural barriers to people appealing their sentence.

I hope most of the 89 imprisoned in 2014 were not parents of young children.  The two mothers quoted above were deeply scarred by their experience, as were their children.

The easiest (though politically most difficult) way to improve things would, of course, be to change primary legislation to prevent anyone being imprisoned for non payment of council tax.  Meanwhile, I suspect miscarriages of justice will continue to happen.