REVIEW OF POSTPONEMENT OF WARRANT OF COMMITMENT

HC Deb 31 March 1987 vol 113 cc914-5

"The following section shall be inserted after section 77 of the Magistrates' Court Act 1980— Review of postponement of issue of warrant of commitment.

1. 77A— (1) If on an application by a person in respect of whom issue of a warrant has been postponed under section 77(2) above it appears to a justice of the peace acting for the petty sessions area in which the warrant would have been issued that a variation of any condition on which the warrant was postponed or a remission of all or part of the sum outstanding is justified, he shall refer the application to the court.
2. (2) Where such an application is referred to the court, the justices' clerk shall give the applicant notice of the time and place of the hearing.
3. (3) Where such a notice has been given and the applicant does not appear at the time and place specified in the notice, the court may proceed with theconsideration of the application in his absence.
4. (4) At the hearing the court shall have power, if it thinks fit, to vary the terms on which issue of the warrant was postponed or wholly or partly to remit the sum outstanding.
5. (5) If a warrant under section 77(2) above has been issued before the hearing of the application, the court shall have power, subject to subsection (6) below, to order—
   1. (a) that the warrant shall cease to have effect; and
   2. (b) that the applicant shall be released.
6. (6) The court may not make an order under subsection
7. (5) above unless it is satisfied that the change of circumstances on which the applicant relies was not put before the court issuing the warrant.'.—[Mr. Mellor.]

Brought up, and read the First time.

Mr. Mellor

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Harold Walker)

With this it will be convenient to take Government amendments Nos. 154 to 156 and Government amendments Nos. 149 to 153.

Mr. Mellor

The new clause and the consequential amendments respond to Opposition concern expressed in Committee about the provision in clause 40 that notice shall be deemed to be served if sent by registered post or recorded delivery to a defaulter's last-known address. That concern centred on the possibility of deserving cases—for example, hospitalisation— where that provision might lead to the warrant's being issued without the court being aware of the circumstances. The hon. Member for Hammersmith (Mr. Soley) suggested then that the solution might be to allow the officer enforcing the warrant a discretion not to do so in such cases. We considered that seriously but did not feel that it was desirable to undermine the authority and finality of the order in that way because it might put the enforcing officer in an invidious position, second-guessing the court.

We have come up with an alternative, of which I hope the hon. Member for Hammersmith will approve—to follow the present arrangements for the enforcement of maintenance in the courts. This will allow the defendant to apply to the court, at any time, for the case to be reviewed in the light of circumstances arising since the court decided to issue the postponed warrant. In the cases identified by the hon. Member for Hammersmith, enforcing officers could advise defaulters of the possibility of applying for a review and could delay acting on the warrant. That is common practice already, and it could continue under what is proposed.

It is, of course, important that this new proposal should not be a pretext for deliberate abuse and delay in unmeritorious cases— hence the clear provision in amendment No. 153 that the court's original decision on the terms of postponement and any subsequent decision to activate the warrant may be reviewed only on the basis of information not before that court. It is right also that the onus should be on defaulters to notify the court of any adverse change in their circumstances and, in the context of the "deeming" of notices to be served, of any change of address. This new right for the defendant to apply for a further hearing is additional to, and independent of, the court's power, as specified by clause 40, to hold a further hearing to consider activating a postponed warrant in the event of further default. I hope that that shows that we have done some constructive thinking since Committee stage and that these measures will be acceptable to the House.

Mr. Soley

I am grateful to the Minister. This is a difficult area in which we do not wish to undermine the court's authority. However, the Minister recognised in Committee that there had been occasions when a warrant might not have been served effectively because of reasons that were outside the control of the person who was to receive the warrant—for example, if that person was working away from home or in hospital. As this measure has been designed to meet such special cases, I accept the new clause.

Question put and agreed to.

Clause read a Second time, and added to the Bill.