Yesterday, The Sun carried an article detailing £2billion lost to magistrates courts in upaid fines and confiscation orders. However, as our Senior Lawyer Alan Murdie argues below, this is due to the ineptitude of privatised, and poorly regulated, bailiffs.

It is a truism that a legislative change that looked wonderful on paper can have wholly unexpected and detrimental consequences in practice. This can be seen with the decisions made since 2003 to outsourced and privatise the collections of fines which have resulted in record levels of fines not be recovered. This even made headlines in The Sun newspaper on November 22nd 2011 recording how over £ 1 billion owed remains unpaid, yet at a time when bailiffs collecting fines have more power than ever before. Obviously, the recession and growth in poverty play a part. But it has also been caused by procedural changes in the magistrates’ court system which the Zacchaeus 2000 Trust has long opposed. In the Courts Act 2003 and the Fines Collections Regulations 2006 laid the basis for a system whereby magistrates’ courts were no longer responsible for enforcing fines. Previously under the Magistrates’ Courts Act 1980 the clerk to the court (now the Justices’ Chief Executive) was responsible for fine enforcement using a wide range of statutory powers, including court bailiffs, attachment of earnings, income support, charging orders, the High Court and bankruptcy proceedings to recover the fine. Effectively, the court that imposed the fine was responsible for getting it back. If there was a problem with one method then it was sent back to court to try another way to make the defendant pay. If something went wrong on collection, the court could immediately step in and put it right. However, thanks to legislative changes the enforcement of fines was given to a fines collection officer and taken away from the court. At the same time private companies were hired to collect fines, in order to make a profit. As a result after bailiffs have failed to collect the fine by a letter or visit the matter does not go back to court to try another method (such as attachment of earnings or benefit deductions) is never attempted. Instead the bailiff holds on to the debt, hoping to recover the fine and fees in the future. It becomes just one of many fines on a long list. But the longer enforcement is left, the harder and less likely it is that the fine will be recovered. The position is worsened by the fact that many of the magistrates’ courts which imposed the original fines may no longer exist. The closure of magistrates’ courts and sell off of magistrates’ courts continues apace – so court that originally imposed the fine may well have shut down and the court staff transferred or made redundant. So it is quite possible no-one is left checking up on whether the fine is ever satisfied. Indeed, one may even wondered if there are any effective checks being undertaken by the Ministry of Justice on the bailiffs once they have collected some or all of the money. Clearly there is a risk to the public purse where private companies are doing what was originally a state function if no proper audit safeguards are in place, or where a bailiff’s firm sits on the money to earn interest before passing it back to the Ministry of Justice. Certainly, history does not show a positive record when fine and tax collection is farmed out to private individuals and companies. From the examples of bad tax collectors in the New Testament, in the Byzantine Empire as it failed and in pre-Revolutionary France, the farming out responsibility for money owed to the state or the Crown is a story of disaster. The latest dire figures suggest we may be seeing a 21st century equivalent here in Britain.