In the first of this weeks Guest Posts – Louise blogs about Imprisonment for Debt
Imprisonment solely on the grounds of failure to fulfil a contractual obligation is considered a human rights violation and is prohibited by Article 1 of the 4th Protocol to the European Convention on Human Rights (ECHR) and Article 11 of the International Covenant on Civil and Political Rights (ICCPR), both of which Ireland is party to. Despite the prohibitions, an increasing number of people find themselves imprisoned for their inability to pay a debt, or fulfil a contractual obligation, figures were confirmed at 276 in 2008, and 186 in the first six months of 2009. (Latest stats available at time of writing.)
Summer 2009 heralded the opportunity for substantive change in the treatment of debtors in Ireland. With the assistance of Northside Community Law Centre and an amicus curiae from the IHRC, the McCann case came to the High Court where Laffoy J found the legislation allowing for imprisonment of debtors to be unconstitutional, mainly because the burden of proof over whether a debtor was wilfully refusing to pay, or unable to pay, was placed squarely on the debtor, who in most cases had no access to legal aid.
The reaction was speedy to say the least, the District Court stopped processing orders, and a new Bill was drafted and passed through the Houses. Within a matter of weeks of the McCann judgement being published, the Enforcement of Court Orders Acts 2009 was passed, containing an amendment to the 1940 Act, effectively replacing the now null section.
As the Bill was being debated the point was repeatedly made that the intention was only to correct what was identified as unconstitutional in the McCann case, there was no inclination to attempt to improve the system and introduce an alternative, more appropriate remedy to debt enforcement. Amendments put forward by Opposition, for example, to introduce an attachment order facility, were rejected on the grounds that the area of personal debt and debt enforcement are to be reviewed when the Law Reform Commission completes it’s work on the subject. The LRC’s consultation paper makes no recommendation on whether imprisonment should be retained in debt enforcement and it’s report is due to be published this year.
The Enforcement of Court Orders (Amendment) Act 2009 requires two conditions to be satisfied before a judge can issue an order for imprisonment for failure to comply with the court order. It must be proven that the debtor willfully neglected to comply with the judgment order, i.e., that he is refusing to pay the debt, and also that the debtor has no goods which could be taken in execution of the debt owing, i.e., that he can pay. Thus the distinction between Can’t Pay and Won’t Pay debtors is a false distinction and Section 8 of the 2009 Act demonstrates the anomaly arising. If the debtor does not have goods which can be taken in execution of the debt owing, then irrespective of whether or not it is proven that they have willfully neglected to honour the debt, they are still unable to pay and therefore should be protected from imprisonment. On the other hand a debtor who refuses to pay and who does have goods which can be taken in execution of the debt owing is protected from imprisonment for failure to comply with the order by Section 8 of the 2009 Amendment Act.
Viewed in light of the current financial climate and the beginning stages of NAMA where we are seeing very large debts essentially be put on hold rather than enforced, it highlights the imbalance evident in a system that allows for the arrest and imprisonment of a individual over a relatively small debt. This imprisonment comes at a high monetary cost to the State, as it bears the cost of the prison sentence, along with legal fee incurred in the proceedings leading up to the sentence. Perhaps most incredibly of all – serving the sentence imposed does not discharge the debt owing.
Thanks to Maman Poulet for giving me the opportunity to make this guest post. It is a topic I’ve done a lot of research on for my MA Thesis and I appreciate being able to get it out there into the world to a ready made readership.