FLAC: Man unlawfully jailed for failure to pay debt released by High Court
30 March 2017
A man was released from Mountjoy Jail last week on High Court bail following an application brought by FLAC, the access to justice organisation, in a case that highlights major failings in adherence to the law surrounding debt enforcement in Ireland.
The man’s case was back before the High Court today where he was given unconditional release. He had been sentenced on 21 March in the District Court for failure to make court-ordered instalment payments on a judgment debt. The man, who has significant health issues, was then arrested on the order of the presiding judge, brought to a Garda station and removed to Mountjoy Jail to servea week in prison.
The man had spent two nights in Mountjoy before an application to the High Court resulted in his release on bail. FLAC says the presiding judge had not applied two safeguards required under legislation in circumstances where a person faces prison for failure to meet the terms of an Instalment Order:
- Legal aid must be offered to the debtor, and that
- A judge may not make any order to imprison unless he or she is satisfied that the creditor has shown beyond a reasonable doubt that the debtor failed to pay due to his or her “wilful refusal or culpable neglect”.
Counsel on behalf of the man highlighted to the High Court today that the warrant for his imprisonment signed by the District Court judge was incorrect, as it recorded that these two safeguards were adhered to, when an audio recording of the proceedings confirmed that they were not. Counsel also pointed out that the whole hearing in the District Court, resulting in the imprisonment of the man, took no more than three minutes.
“No person in financial difficulty and poor health, or indeed any citizen, should be treated this way,” said FLAC Senior Policy Analyst Paul Joyce. “This is particularly the case where the State claims to have brought an end to debtor imprisonment. Furthermore, legislation passed in 2015 - which should have removed all possibilities of a person being imprisoned on foot of a debt – has not been commenced by the Minister for Justice & Equality.”
Mr Joyce explained that in 2009, in the case of McCann v Judge of Monaghan District Court and Others, the High Court declared Section 6 of the Enforcement of Court Orders Act 1940 to be unconstitutional on the grounds that it allowed for the imprisonment of a debtor in his or her absence where he or she had failed to make court ordered instalment payments on a judgment debt.
To comply with this finding, the Enforcement of Court Orders (Amendment) Act 2009 was put in place. It allows for a debtor who has failed to make court-ordered instalment payments to be summoned before a court to explain non-payment, and also prescribed the two legislative safeguards mentioned above.
“The Civil Debt (Procedures) Act 2015 was signed into law in July 2015 and the government claimed considerable credit at the time that it had brought imprisonment for civil debt to an end,” added Mr Joyce. “However the relevant Statutory Instrument to give this Act legal effect has never been issued by the Minister for Justice & Equality.”
FLAC Chief Executive Eilis Barry called on the Minister to sign the statutory instrument which will bring the Civil Debt (Procedures) Act into effect as a matter of urgency, stressing that “the government must ensure that this does not happen to anyone else.”
In addition, a 2009 FLAC report, To No One’s Credit, focused on reforming other key failures in the law on the enforcement of judgment debts by instalment. One of these was that a court Instalment Order should never be made in a debtor’s absence and without full detail of the debtor’s financial circumstances. This and other FLAC recommendations were endorsed by the Law Reform Commission in its 2010 report on Personal Debt and Debt Management.
“All of this could have been avoided if this man had been obliged to be in court when the amount of any Instalment Order was being considered so that it reflected actual capacity to pay,” concluded Mr Joyce. “A simple change to the law making sure people are present for their Instalment Order proceedings would achieve this”.
- FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal access to justice for all. As an NGO, FLAC relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work.
- FLAC offers basic legal information through its telephone information line (1890 350 250). Free legal advice is available from volunteer lawyers through a countrywide network of 80 evening advice centres – more at www.flac.ie/help/. FLAC also campaigns on a range of issues including consumer credit, personal debt, fairness in social welfare law, public interest law and civil legal aid. FLAC has issued numerous analyses and policy statements calling for a fairer mortgage arrears resolution process.
- The Civil Debt (Procedures) Act 2015 is available at http://www.irishstatutebook.ie/eli/2015/act/28/enacted/en/html . FLAC’s submission on the Civil Debt (Procedures) Bill is online at https://www.flac.ie/publications/submission-civil-debt-procedures-bill-2015/
- The Enforcement of Court Orders (Amendment) Act 2009 is at http://www.irishstatutebook.ie/eli/2009/act/21/enacted/en/html and FLAC’s comment at the time is at https://www.flac.ie/news/2009/07/06/proposed-legislation-on-debt-enforcement-leaves-a-mountain-of-reform-left-to-climb/
- FLAC’s report ‘To No One’s Credit’ (2009) is available at https://www.flac.ie/publications/to-no-ones-credit/