A loss of balance on the bench

The recent release from jail by High Court Family Division President, Sir Stephen Brown, of a father sentenced by magistrates to six weeks for falling behind on maintenance payments has raised serious concerns about the tendency of lay magistrates to take excessive action in family cases. David Burrows, the Bristol-based specialist family law solicitor who represented the father, says that there is no way of knowing the number of cases in which magistrates overstep the mark.

Burrows is adamant that the jail sentence should never have passed. "What we were talking about in this case was unpaid maintenance, a civil debt – and the concept of jail for other civil debts went out in Victorian times," he says.

"Magistrates were jailing a man because he could not meet his debts. It is very worrying to see this sort of thing happen in this day and age."

The man jailed was John Lindsay, a 33-year-old former soldier. He was arrested at his home in Slough late in the evening and then held in police cells overnight.

The following day he appeared before a bench of three women magistrates who jailed him for six weeks after being told he owed £2,802.

The jailing brought tough criticism of the magistrates from Sir Stephen Brown, criticism which could be interpreted as a warning to all magistrates dealing with such cases.

According to Sir Stephen, the magistrates, who found Lindsay guilty of "culpable neglect" in not paying, had clearly been shocked by the amount of arrears. This, however, is no excuse.

"I do not consider they were properly exercising their jurisdiction in making an immediate committal for the maximum term upon a man arrested late the previous evening, with no legal representation, no clear warning that prison was the most likely result and with no proper opportunity to produce important documentary evidence as to his circumstances.

"The moral of the story is that magistrates should not act in such haste where immediate imprisonment is likely to result. Great care must be taken before such extreme action is taken."

The result of the jail order was that Lindsay lost his job and has built up even more arrears.

Lindsay's counsel, Peter Marsh, considers that the case spotlights, among other things, the need for more gender balance on benches dealing with such cases.

"Where a man appears in front of a court in these sort of circumstances there should be at least one male on the bench. The same principle should apply for women to rule out any appearance of bias," he said after the case.

"I am appalled that people can be sent to prison without being offered the possibility of legal aid and representation."

David Burrows, who chairs the Children Committee of the Solicitors Family Law Association, says he sees the recent case as sending a clear message to magistrates.

"Given the additional powers they have been given they must take greater care over what the rules say and what the requirements of justice are.

"Imprisonment is a primitive remedy which, if it is used, must be used very sparingly and with considerable care – and not as it was in this case."