5. Wilful refusal and culpable neglect
There are a number of situations in which magistrates acting as debt collectors must decide whether a client’s non-payment is due to her/his ’wilful refusal’ or ’culpable neglect’.
Although magistrates’ courts have been making decisions based on their interpretation of this important phrase for many years, the two phrases are not defined in the legislation. There is little guidance on what factors should be taken into account when making a decision, but the client’s conduct must be ’blameworthy’ in some way.
The client should only be found guilty of ’wilful refusal’ if s/he has made a deliberate decision not to pay the amount due, even though s/he is able to do so – eg, on a point of principle. However, a finding of ’wilful refusal’ does not automatically justify a sentence of imprisonment; the two questions must be considered separately.
’Culpable neglect’ is more difficult. It means a reckless disregard of the court order and usually involves a situation where the client spends any available income on non-essential items rather than on paying the financial penalty. It is not sufficient for the magistrates to find that the client had available income and did not pay; they must also find out why it has not been paid.1R v Watford Justices ex parte Hudson, 21 April 1999, unreported If a couple are in receipt of benefits intended for both of them, the non-claimant client can be found guilty of ’culpable neglect’ if there has been a ’household’ decision not to pay.2R v Ramsgate Magistrates ex parte Haddow [1992] 157 JP 545 To prove ’culpable neglect’, it must be shown that:
•money was available, but it was not paid to the court or local authority; and
•this was due to a failure which demonstrates an avoidable choice to use the money for other purposes.
Evidence in the form of a financial statement should demonstrate to the court that the client’s ’choices’ were impossible and that a failure to pay was not ’culpable’.
Most courts assume that, if a person has ignored reminders or suspended committals, s/he has culpably neglected payment. This assumption should be challenged. Argue that a client:
•did not have any money available after paying for essential items; or
•was too stressed to be culpable; or
•did not understand the need to pay; or
•was not skilful enough to balance a very difficult budget; or
•was wrongly advised not to pay.
When representing a client, it is helpful to begin by presenting a financial statement and evidence about her/his debts and social circumstances before asking the court to make a specific decision on the question of wilfulness or culpability. After the court has decided this, you can argue about an affordable instalment arrangement, if necessary.
It is useful to obtain the court’s agreement to conduct proceedings in this format because it encourages the court to think about wilfulness and because it allows you to rescue something if the initial decision is unfavourable.