Imprisonment for debt

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A decision made (31.07.06) to agree to the withdrawal of Jersey's derogation in relation to Article 11 of the International Covenant on Civil and Political Rights.

Subject:	Imprisonment for debt
Decision Reference:	MD-C-2006-0032		Exempt clause(s):	-
Type of Report: (oral or written)	Written		Person Giving Report (if oral):
Telephone or e-mail Meeting?			Report File ref:	Int 50/1
Written report – Title	International covenant on civil and political rights – withdrawal of derogation to Article 11
Written report – Author (name and job title)	International Relations
Decision(s): To agree that a derogation on behalf of Jersey in relation to Article 11 of the ICCPR is no longer required and accordingly to request the UK to withdraw its derogation.
Reason(s) for decision: The United Kingdom ratified the International Covenant on Civil and Political Rights (ICCPR) on Jersey’s behalf on 20 May 1976. At the time of ratification, a derogation was entered for Jersey in respect of our rules permitting the arrest of a debtor for non-payment of a contractual claim. Since then, as a result of the Court of Appeal decision in the case of Benest v Le Maistre 1998 JLR 213 the Royal Court can be expected to exercise its discretion in relation to an application for an Acte à Peine de Prison, having regard to the provisions of Article 11 of the ICCPR. It is considered that there is adequate protection to ensure that the United Kingdom will not be in breach of the International Covenant if the derogation is removed. Consequently, the derogation on behalf of Jersey in relation to Article 11 of the ICCPR is no longer required.
Action required: Forward to the UK a formal request that it withdraws its derogation which it has entered on Jersey’s behalf in relation to Article 11 of the International Covenant on Civil and Political Rights. Inform the Publications Editor to arrange for publication of the Ministerial Decision on www.gov.je
Signature: Chief Minister		Date of Decision:

Imprisonment for debt

REPORT

International covenant on civil and political rights – withdrawal of derogation to Article 11

Background

The United Kingdom ratified the International Covenant on Civil and Political Rights (ICCPR) on Jersey’s behalf on 20 May 1976, and the Covenant cam into force on 20 August 1976. At the time of ratification, a derogation was entered for Jersey in respect of our rules permitting the arrest of a debtor for non-payment of a contractual claim because article 11 of the Covenant provides:

“No-one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

In 2000, the UN Committee conducting a review of the Covenant requested that Jersey should consider requesting the withdrawal of the derogation.

Issues

Imprisonment for debt falls into two areas. Interim orders, usually taken out on an ex parte basis and under time constraints, may make provision for a person to be arrested and held in custody until such time as he produces security for the claim which is being made. A typical example historically would be those cases where a foreigner hires a car in Jersey, writes it off under the influence of drink such that the insurance policy does not cover the damage to the hire car, and the owner of the car seeks an interim arrest order in order to ensure that some security will be provided before the hirer leaves the Island. Another case is where an interim order is made against a husband where there are arrears of maintenance and the husband is an expatriate (as in Dick v. Dick).

It is noteworthy that in the case of Dick the European Commission found that while a draconian interim measure may well cause considerable inconvenience, in the context of the Jersey proceedings as a whole, the Commission could see no unfairness. The point was made that there was no reason why the institution of proceedings on an ex parte basis should have any impact on the fairness of the proceedings as a whole provided that full procedural guarantees were available when the proceedings were inter partes.

The Court may also make final orders for the arrest of a debtor pending satisfaction of the debt. These orders are almost invariably made in circumstances where the debtor, although enjoying a very high standing of living, has very few, if any, assets in his own name, probably because the assets are held by companies which may in turn be owned by discretionary trusts.

Research of the Judicial Greffe showed that between 1990 and 1999 there were 37 Actes à Peine de Prison. In 1992, 14 such Actes were issued, but in no other year have there been more than 5 such Actes issued. During the period from 1995 to 1999, the number of Actes issued per annum respectively was 2, 3, 0, 2, 2.

Article 11 of the Covenant requires that no-one should be imprisoned for contractual debt. The hire car cases or maintenance cases mentioned above therefore do not fall within that Article.

Consideration has been given to whether or not Jersey could have the reservation lifted by enacting a short piece of legislation which removed the jurisdiction of the Court to make an order for a person’s imprisonment only because the person has not satisfied in whole or in part a contractual obligation or a judgment debt in respect of a contractual obligation. The purpose of such legislation would be to enable the Island Authorities to request the Foreign and Commonwealth Office to lift the reservation in the ratification of the ICCPR.

However, there has been a judgment of the Court of Appeal in the case of Benest v. Le Maistre (1998) JLR 213 which provides some safeguards in relation to the remedy. In particular, an Acte à Peine de Prison is a discretionary remedy which vests in the Royal Court, and it should not be made if the debtor could show that he was unable to pay and was making efforts to pay in good faith. Even if an order has been made, the Court has power to decide in what circumstances the debtor should be imprisoned.

The Court of Appeal held that the procedure governing Actes à Peine de Prison should be interpreted as far as possible in accordance with the International Covenant on Civil and Political Rights, the European Convention on Human Rights and other relevant Treaties. Because these had not been incorporated into the domestic law of Jersey, their relevance was limited. They could be used to help resolve ambiguities in legislation, determine the principles upon which courts should exercise their discretion or to resolve uncertainties in the common law.

Since Benest v. Le Maistre, the Human Rights Law has of course been passed which, when it comes into force, will provide added material as to why an order for an Acte à Peine de Prison should not be made. It would appear that there would be strong grounds for asserting that the Court should not make such an order to the extent that the Article 8 rights to respect to private and family life would be adversely affected as a result.

In the circumstances, the Royal Court can be expected to exercise its discretion in relation to an application for an Acte à Peine de Prison, having regard to the provisions of Article 11 of the ICCPR. It is considered that there is adequate protection to ensure that the United Kingdom will not be in breach of the International Covenant if the derogation is removed.

Conclusion

In view of the above, it is recommended that the Island Authorities should request the UK to withdraw its derogation which it has entered in relation to Article 11 of the ICCPR on Jersey’s behalf.

International Relations

25 July 2006