3. Enforcing a financial penalty

CPAG

3. Enforcing a financial penalty

Collection order

Warrant of control

The use of bailiffs (enforcement agents)

Collection order

A magistrates’ court that is either imposing a new financial penalty or enforcing payment of an unpaid financial penalty must make a collection order. The collection order sets out:

•a breakdown of the sum due – ie, the amount of the fine and/or compensation order and/or costs;

•whether the client is an ‘existing defaulter’ – ie, whether s/he has already defaulted on payment of another financial penalty and, if so, whether that default can be disregarded;

•whether an attachment of earnings order or an application for deductions from benefits has been made and, if so, the repayment terms that apply if the order or application fails (known as ‘reserve terms’). If not, the payment terms;

•which fines office will deal with the case; and

•the consequences of default.

If the client is an existing defaulter

If the client has defaulted on a previous penalty and s/he has failed to show the court there was an adequate reason for the default, the court must:

•make an attachment of earnings order (see here) if the client is in employment, provided it is not impracticable or inappropriate to do so (see below); or

•apply to the Department for Work and Pensions (DWP) to make deductions from benefits (see here) if the client is in receipt of income support (IS), income-based jobseeker’s allowance (JSA), income-related employment and support allowance (ESA), universal credit (UC) or pension credit (PC), provided it is not impracticable or inappropriate to do so.

If a fixed penalty has been registered in the magistrates’ court for enforcement, the client is deemed to have no adequate reason for default, and so can be treated as an existing defaulter.

Impracticable or inappropriate

There is no guidance on the meaning of ’impracticable or inappropriate’. It could include a situation where the court has no information about the client’s financial circumstances or where, for example, there is an existing council tax attachment of earnings order and the client would be left with insufficient income to meet essential expenses if another order was made. It could also include a situation where deductions are already being made from the client’s benefit for debts with a higher priority.

If the court is satisfied that the client has shown an adequate reason for her/his default, an attachment of earnings order or an application for deductions from benefits can still be made, but only if the client consents, unless the financial penalty consists solely of, or includes, a compensation order. If so, the court must make an attachment of earnings order or apply for deductions from benefits, unless it is impracticable or inappropriate to do so.

If a client does not want an attachment of earnings order or deductions made from her/his benefit, check before the court hearing whether s/he has any outstanding financial penalties. If so, the client should be advised either to bring her/his payments up to date or to provide the court with an explanation of the default and of the possible adverse financial consequences of any attachment of earnings order or deductions from benefits.

If the client is not an existing defaulter

If the client is not an existing defaulter, the collection order sets out the terms on how the financial penalty must be paid. An attachment of earnings order or a request for deductions from benefits can only be made if the client consents, unless the financial penalty consists solely of, or includes, a compensation order. If it does, the court must make either an attachment of earnings order or apply for deductions to be made from the client’s benefits, provided it is not impracticable or inappropriate to do so (see here).1Art 11 Collection of Fines (Final Scheme) Order 2006, No.1737 Where appropriate, clients should be advised to resist any pressure to agree to such a course of action in favour of voluntary payments.

1 Art 11 Collection of Fines (Final Scheme) Order 2006, No.1737 »

Attachment of earnings orders

Attachment of earnings orders made in the magistrates’ courts are not made in the same way as those made in the county court (see here). Instead, fixed deductions are made from the client’s net earnings using the percentage deductions in the table below.

Net earnings
Monthly	Weekly	Daily	Deduction rate
Up to £220	Up to £55	Up to £8	0%
£220.01 to £400	£55.01 to £100	£8.01 to £15	3%
£400.01 to £540	£100.01 to £135	£15.01 to £20	5%
£540.01 to £660	£135.01 to £165	£20.01 to £24	7%
£660.01 to £1,040	£165.01 to £260	£24.01 to £38	12%
£1,040.01 to £1,480	£260.01 to £370	£38.01 to £53	17%
£1,480.01 and over	£370.01 and over	£53.01 and over	17% of this threshold and 50% of the remainder

Attachment of earnings orders for fines take priority over existing attachment of earnings orders for payment of judgment debts, administration orders and attachment of earnings orders made by the DWP (except those to recover child support) and have equal priority with other attachment of earnings orders – eg, for council tax arrears.

Employers must deal with such orders in date order. The client’s net earnings are calculated after making the deductions due under previous orders.

Deductions from benefits

The court can apply to the DWP to deduct payments towards a financial penalty from the client’s UC, IS, income-based JSA, income-related ESA or PC.

The maximum amount that can be deducted is £5 a week or, if the deductions are being made from UC, 5 per cent of the client’s standard allowance for the relevant assessment period up to a maximum of £108.35. If the client is in receipt of contribution-based JSA or contributory ESA, the maximum deduction is 40 per cent of the amount of JSA or ESA for a person her/his age.

In R (Blundell & others) v Secretary of State for Work & Pensions, the High Court ruled that the DWP’s policy of always making the maximum deduction from a client’s UC for a fine was unlawful as it failed to take into account her/his personal circumstances. The DWP is not appealing this decision and has now amended its guidance so that deductions will be set at 5% of the client’s UC personal allowance as standard.1[2021] EWHC 608 (Admin). See also

Fines have low priority, however, and deductions can only be made in respect of one application at a time.

If the client is likely to experience hardship as a result of deductions being made, write to the DWP explaining this and ask it not to enforce the court’s application.

For more information on deductions from benefits, see here.

1 [2021] EWHC 608 (Admin). See also »

Varying the terms of a collection order

The client is sent a copy of the collection order. If there has been a change in her/his circumstances since the order was made (or last varied), s/he can ask the fines officer to vary the order (or the reserve terms - see below). The application must be made in writing. S/he need not have defaulted. However, if the client has defaulted on the payment terms, any enforcement action can continue while her/his application to vary the order is being dealt with. S/he can also ask for the order to be varied if s/he is making further information available about her/his circumstances – eg, if her/his circumstances have not changed, but s/he did not provide full information about them on a previous occasion. The fines officer can require her/him to provide a statement of her/his financial circumstances and it is an offence not to comply. There is no limit to the number of times a client can ask for a variation, but s/he needs to be aware that the fines officer can vary the payment terms in a way which is less favourable to the client than the current terms. A client can appeal against the fines officer’s decision to the magistrates’ court within 10 working days (see here).

If the attachment of earnings order or deductions from benefits fails

If the attachment of earnings order or an application for deductions from benefits fails (eg, if the client leaves her/his employment or the DWP is unable to comply with the request because of other, higher priority deductions), the fines officer must send the client a ’payment notice’ informing her/him:

•the order (or request) has failed;

•the ‘reserve terms’ in the collection order now apply;

•what s/he must do to comply with the reserve terms;

•of her/his right to apply to vary the reserve terms.

The client can ask the fines officer to vary the order on the grounds that there has been a change in her/his circumstances since the reserve terms were set (or last varied).

If the client defaults on the collection order

The client is in default if s/he does not comply with the payment terms (or, if they have taken effect, the reserve terms) of the collection order. The fines officer may refer the case back to the magistrates’ court or decide to enforce payment her/himself. Provided there is no outstanding request to vary the reserve terms or no outstanding appeal to the magistrates about a previous decision not to vary the reserve terms, the fines officer can send a ‘further steps notice’, setting out what steps s/he intends to take. S/he can:

•make an attachment of earnings order or request deductions from benefits;

•issue a warrant of control (see here);

•make a clamping order (see here);

•register the financial penalty in the Register of Judgments, Orders and Fines;

•apply to have the financial penalty enforced in the High Court or the county court (see here).

If the fines officer wants to take a step or steps which was not specified in the further steps notice, s/he can issue a replacement notice, specifying the step or steps. The client can appeal to the magistrates’ court against the replacement notice within 10 working days (see below).

Note: contact the fines officer immediately if there are arrears on an order as it may be possible to agree a new payment arrangement, particularly if the financial penalty can still be paid within the original period allowed by the court.

Appeals and referrals

The client can appeal to the magistrates’ court by letter within 10 working days (ie, excluding Saturdays and Sundays, Christmas Day, Good Friday and bank holidays) against a fines officer’s decision:

•to vary the terms of a collection order;

•to vary reserve terms;

•to issue a further steps notice.

On an appeal, the magistrates’ court may:

•confirm or vary the payment terms (or any reserve terms);

•confirm, quash or vary a further steps notice;

•discharge the collection order and exercise any of its standard powers (see below).

On a referral to the magistrates’ court by the fines officer, the magistrates can:

•confirm or vary the payment terms (or any reserve terms);

•discharge the collection order;

•exercise any of the powers referred to in this chapter.

If the court discharges the collection order, it retains control of the collection and enforcement process itself, rather than delegating it to the fines officer. The ’standard powers’ given to the magistrates are much wider than the powers given to fines officers, although some can be exercised by both.

If a fines officer refers the case to the magistrates’ court either instead of issuing a further steps notice or after taking any of the steps listed in it, the magistrates may increase the fine (but not any other part of the financial penalty) by 50 per cent, provided they are satisfied that the client’s default on the collection order is due to her/his ’wilful refusal or culpable neglect’ (see here). The increase is enforced as if it were part of the fine.

To ensure the client attends a referral hearing, the fines officer may issue a summons directing her/him to attend the magistrates’ court at a specified time and place. If the client fails to attend, the court issues a warrant for her/his arrest by a civil enforcement officer. The warrant is either with or without bail – ie, the client is either bailed to attend court, or is arrested and brought before the court. Before executing the warrant, the enforcement officer tries to obtain full payment. If you discover that a client is subject to a warrant without bail, advise her/him to surrender her/himself to the court on a day when the court is sitting to deal with fine defaulters, and prepare a financial statement for her/him to take with her/him.

Warrant of control

The use of bailiffs (enforcement agents)

**Alert: The Ministry of Justice has published guidance entitled Working safely during Covid-19: enforcement agents (bailiffs), available at: tinyurl.com/yyue4tnb. This guidance does not supersede any legal obligations arising from legislation and should be considered alongside the guidance in the Taking Control of Goods: national standards.1gov.uk/government/publications/bailiffs-and-enforcement-agents-national-standards **

The court can issue a warrant of control if a client fails to pay a financial penalty as ordered by the court.2s76 MCA 1980 This means bailiffs are instructed to take control of the client’s goods and the proceeds of their sale are paid to the court. Although there is now more emphasis on using attachments of earnings and deductions from benefits, warrants of control are frequently the first enforcement method used. This is because many financial penalties are imposed in the client’s absence, with the court having no information about her/his means.

No hearing is required before a warrant of control is issued, although the court can postpone issuing one if it wishes.3s77(1) MCA 1980 There does not need to be a means enquiry before issuing a warrant of control,4R v Hereford Magistrates ex parte MacRae, The Times, 31 December 1998 but if there is evidence that the client has sufficient assets to pay the debt, the magistrates should take control of her/his goods rather than commit her/him to prison.5R v Birmingham Justices ex parte Bennett [1983] 1 WLR 114

The magistrates’ court can only withdraw a warrant after it has been issued in limited circumstances.6Crossland v Crossland [1992] 2 FLR 45, confirmed in R v Hereford Magistrates’ Court ex parte MacRae, The Times, 31 December 1998 If the fines officer has issued a warrant of control under a further steps notice or a replacement notice, s/he may withdraw the warrant if s/he is satisfied that it was issued by mistake – eg, if the client was believed to be in default under her/his instalment arrangement, but the payments were, in fact, up to date.7s88 Legal Aid, Sentencing and Punishment of Offenders Act 2012

If the fines officer refers a case to the magistrates’ court while a warrant of control remains outstanding, the magistrates may ’discharge’ it – ie, withdraw the warrant if they would have had the power to do so under section 142 of the Magistrates’ Court Act.8s88 Legal Aid, Sentencing and Punishment of Offenders Act 2012 These provisions are intended to allow magistrates to withdraw a warrant issued by the fines officer in order to rectify a mistake.

The court can withdraw a warrant if there is evidence that the client is vulnerable and enforcement would either not be in the interests of justice or might bring the process into disrepute.

1 gov.uk/government/publications/bailiffs-and-enforcement-agents-national-standards »

2 s76 MCA 1980 »

3 s77(1) MCA 1980 »

4 R v Hereford Magistrates ex parte MacRae, The Times, 31 December 1998 »

5 R v Birmingham Justices ex parte Bennett [1983] 1 WLR 114 »

6 Crossland v Crossland [1992] 2 FLR 45, confirmed in R v Hereford Magistrates’ Court ex parte MacRae, The Times, 31 December 1998 »

7 s88 Legal Aid, Sentencing and Punishment of Offenders Act 2012 »

8 s88 Legal Aid, Sentencing and Punishment of Offenders Act 2012 »

The use of bailiffs (enforcement agents)

HM Courts and Tribunals Service (HMCTS) has national contracts with private bailiffs firms to execute warrants of control. If there is a conflict between the terms of the contract and the legislation which governs bailiffs’ powers,1Part 3 and Sch 12 TCEA 2007 the legislation prevails. For more information about bailiffs, see Chapter 14.

Bailiffs collecting financial penalties (but not most other debts) can use reasonable force, if necessary, to enter and search any premises if it is reasonably required.2Sch 12, para 18 TCEA 2007 This power, however, is rarely used and should only be exercised in accordance with the bailiff firm’s own procedures and HMCTS instructions and as a last resort.

Bailiffs must not enter, re-enter or remain on premises where the only person present is a child (ie, under 16) or a ‘vulnerable person’.

There is no definition of a ‘vulnerable person’ in the legislation. However, the guidance Taking Control of Goods: national standards (available at gov.uk/government/publications/bailiffs-and-enforcement-agents-national-standards) contains a section on vulnerable situations and includes lone parents and unemployed people in its list of potentially vulnerable people.

Regulations contain a detailed list of goods that bailiffs cannot seize (see here).3TCG Regs

Bailiffs must give at least seven days’ notice of their intention to visit the client to take control of goods (known as an ’enforcement notice’). A warrant must be executed within 12 months from the date of the enforcement notice. This 12-month period can be extended by the court. It is also extended if the client and the bailiff agree a payment arrangement before any goods are taken into control.

The bailiff must sell the client’s goods within 12 months from the date they are taken into control. This 12-month period can be extended by written agreement between the client and the bailiff.

There are no restrictions on the days bailiffs can take control of goods. They can do so between 6am and 9pm, unless they are visiting business premises, are part way through taking control of goods or the court orders otherwise. However, the contract states that visits should begin at a reasonable time and at least one attempt must be made outside ’normal’ working hours – ie, 8am to 6pm, Monday to Friday. Visits should not be made on Sundays, Good Friday, Christmas Day, bank holidays or at a time that is likely to be inappropriate to the client’s religious beliefs (if these are known).

1 Part 3 and Sch 12 TCEA 2007 »

2 Sch 12, para 18 TCEA 2007 »

3 TCG Regs »

Clamping order

A clamping order is an order made by the fines officer or the magistrates’ court for a motor vehicle registered in the client’s name to be fitted with an immobilisation device (‘clamped’). A clamping order is made to obtain payment of the financial penalty and includes the costs of carrying out the actual clamping of the vehicle.

Before the magistrates’ court or the fines officer can make a clamping order, it must be satisfied that:

•the client has the means to pay the financial penalty; and

•the value of the vehicle(s) is likely to exceed the amount of the financial penalty plus the likely charges due and estimated costs of sale.

Once a vehicle has been clamped and the fine has not been paid in full after ten clear working days have elapsed since the date the vehicle was clamped, the fines officer must apply in writing to the court for an order to sell the vehicle.

Note: although either the magistrates’ court or fines officer can make a clamping order, only the magistrates can order the sale of the vehicle. There must first of all be a hearing of which the client must be given notice.

The clamping order procedure is rarely used. Since April 2014, it has been lawful for bailiffs to take control of, remove and sell vehicles while executing warrants of control without the need for the formalities of a clamping order.

Money payments supervision order

The court can make a money payments supervision order, appointing someone to ’advise and befriend the defendant with a view to inducing him to pay the sum adjudged to be paid’ – ie, supervise the client during the payment of the financial penalty.1ss56(2) and 88 MCA 1980 This is normally a probation officer or a fines officer. Note: the court is not required to hold a means enquiry (see here) before making an order, nor is the client’s consent required, but since the client’s co-operation is essential to the working of the order, it is normally required. As a matter of good practice, the money payments supervision order should specify the terms of payment.

1 ss56(2) and 88 MCA 1980 »

Imprisonment

**Alert: Since 15 July 2020, HM Courts & Tribunals Service (HMCTS) has been sending reminder letters to individuals who have fallen behind with a fine along with a leaflet encouraging anyone who is impacted by coronavirus outbreak and concerned about their repayments to contact their local enforcement team. Fine enforcement hearings are now being listed and, with effect from 25 March 2020, it has been possible for any fine enforcement hearing to be held remotely if ‘it is in the interests of justice’.1Sch 23, para 2(4), Coronavirus Act 2020 HMCTS has said that the vulnerability of the individual and risk of a custodial sentence (suspended or immediate) being imposed must be taken into account when ordering a remote hearing. Any client who is facing a committal hearing should be advised to ask for a duty solicitor. In any hearing related to the collection, discharge, satisfaction or enforcement of a fine, no client who participated through a live audio or video link will be imprisoned or detained on the ground of default in payment of the fine.**2Sch 24 para 5(11) Coronavirus Act 2020

If a client falls into arrears with payment of a financial penalty, the court may order her/his imprisonment.3s76 MCA 1980, restricted by s82 There is a similar power to detain under-21-year-olds in a young offenders’ institution, but there are additional restrictions.4s88(5) MCA 1980 and ss1(5) and 5A CJA 1982 The minimum term of imprisonment is five days and the maximum term that can be imposed by a magistrates’ court is 12 months.

Note: once a warrant of control has been issued, imprisonment cannot be considered unless the warrant is returned stating that there were no goods.5s76(2) MCA 1980 You should consider asking solicitors to argue that, if a warrant has been returned because the bailiffs were unable to gain access to the client’s property, imprisonment is not an option open to the court, but this argument has not been tested in the higher courts.

There must first be a means enquiry, at which the court must be satisfied:6s82 MCA 1980

•if the original offence was punishable by imprisonment, that the client appears to have sufficient means to pay the sum immediately; or

•that the default is due to the client’s ‘wilful refusal’ or ‘culpable neglect’ (see here) and that all other methods of obtaining payment have been considered or tried, but have been either inappropriate or unsuccessful, including a money payments supervision order (see above), if available.

Imprisonment should only be considered if the client’s default is due to her/his ‘wilful refusal’ or ‘culpable neglect’. In practice, the court often assumes that, if a person has paid nothing, this is deliberate. You should encourage solicitors and other representatives to argue strongly that it is impossible to find money from a client’s low income, even for priorities like financial penalties. However, even if the court is satisfied that the client had the means to pay, it must still demonstrate that it has considered all the non-custodial alternatives. Over the past few years there has been considerable publicity about the number of wrongful committals. This has generally been due to inadequate means enquiries and/or failure to follow the above rules.

Any term of imprisonment must be proportional to the size of the financial penalty. The period is determined by a statutory scale and depends on the amount of the financial penalty outstanding. A stay in prison can be avoided by immediately paying the outstanding balance. Any costs of unsuccessful bailiff action can be added to the amount the client must pay to obtain her/his release. The length of any period of detention (whether actual or suspended) can be reduced by paying a proportion of the outstanding balance.7s79 MCA 1980 For information about ‘lodging’ (ie, linking) outstanding financial penalties to a prison sentence, see here.

If the court decides to impose a period of imprisonment, it can be postponed in certain situations – eg, if the client keeps to a payment arrangement.8s77 MCA 1980 This is known as a ‘suspended committal’. The conditions can be varied if, for example, the client’s circumstances change and s/he can no longer comply with its terms.

A suspended committal order cannot be combined with any other enforcement order.

If the client fails to comply with the postponement conditions, another hearing must be held before s/he can be sent to prison. S/he must be given the opportunity to attend the hearing in order to make representations on why the committal warrant should not be issued. This involves persuading the magistrates that circumstances have changed since the previous hearing (including new facts). The court can still consider remission at this stage.

Although the rules state that notice of the hearing is deemed to be served if it is sent by ‘special’ or ’’ecorded signed for’ delivery to the client’s last known address, the High Court quashed a sentence of imprisonment where a notice had been returned to the court as undelivered.9R v Doncaster Justices ex parte Harrison [1998] 163 JP 182 The High Court said that the magistrates should have adjourned the hearing until the client had been served with notice of the hearing.

1 Sch 23, para 2(4), Coronavirus Act 2020 »

2 Sch 24 para 5(11) Coronavirus Act 2020 »

3 s76 MCA 1980, restricted by s82 »

4 s88(5) MCA 1980 and ss1(5) and 5A CJA 1982 »

5 s76(2) MCA 1980 »

6 s82 MCA 1980 »

7 s79 MCA 1980 »

8 s77 MCA 1980 »

9 R v Doncaster Justices ex parte Harrison [1998] 163 JP 182 »

Short local detention

After a means enquiry, instead of imposing imprisonment, the magistrates can order the client to be detained for the remainder of the day, either in the court building or at a police station up until 8pm. S/he must be released in time for her/him to get home on the same day. The magistrates can also order the client to be detained overnight at a police station until 8am the next morning.1ss135 and 136 MCA 1980 This is not imprisonment and so the restrictions on imprisoning clients do not apply, but (as with imprisonment) the financial penalty is wiped out.

It might be appropriate to ask the magistrates to consider this option if they have ordered the financial penalty to be paid immediately, the client is unable to do so and the magistrates are not prepared to allow her/him time to pay.

1 ss135 and 136 MCA 1980 »

Attendance centre order

Following a means enquiry, if the court has an attendance centre available to it and the client is under 25 years old, the magistrates can order her/him to attend the centre for between 12 and 36 hours.1s60 Powers of Criminal Courts (Sentencing) Act 2000 Attendance can be required for two to three hours at a time, usually on Saturday afternoons.

1 s60 Powers of Criminal Courts (Sentencing) Act 2000 »

High Court and county court orders

The fines officer may apply to the High Court or a county court for an order that is only available in these courts – eg, a third-party debt order or charging order.1s87(1) MCA 1980 An application is unlikely to be made unless the fines officer believes that none of the other available collection methods is likely to be successful, but a High Court or county court remedy is.

For more information on these enforcement methods, see Chapter 11.

1 s87(1) MCA 1980 »

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