Imprisonment and debts

Standard Note:

SN/HA/5525

Last updated:

12 May 2010

Author:

Lorraine Conway, Home Affairs Section

Section

Home Affairs Section

Constituents often contact their Members of Parliament asking for help because they are
fearful that they may be sent to prison for non-payment of debts. In contrast to some other
parts of the world, in the UK it is in fact very rare to be sent to prison for non-payment of
debts. Apart from fraud, a prison sentence can happen only for specific types of debt. These
include non-payment of:
fines from the Magistrates' Court;
council tax or business rates;
maintenance for a husband, wife or children.
Even for these types of debt, imprisonment for non-payment is very rare; a prison sentence
is regarded by the court as a last resort. The threat of imprisonment is only used if the
debtor constantly ignores requests to pay by the court, or in cases of contempt of court, or
serial offending.
For instance, in respect of arrears of council tax it is possible for the local authority to apply
to the Magistrates Court for a liability order. This type of order gives the local authority power
to enforce the debt via an instalments order; an attachment of earnings order; or by sending
bailiffs to the debtors home to seize and sell goods to the value of the debt. If all attempts at
settling the debt are unsuccessful, local authorities in England and Wales (but not Scotland)
can as a last resort apply to the Magistrates Court for a warrant to commit the debtor to
prison for the unpaid council tax. This is considered to be a coercive measure, designed to
elicit the funds, rather than a punitive measure for not paying. Only a handful of people each
year are committed to prison.
The purpose of this note is to provide an overview of the limited circumstances when debt
may lead to imprisonment.

This information is provided to Members of Parliament in support of their parliamentary duties

and is not intended to address the specific circumstances of any particular individual. It should
not be relied upon as being up to date; the law or policies may have changed since it was last
updated; and it should not be relied upon as legal or professional advice or as a substitute for
it. A suitably qualified professional should be consulted if specific advice or information is
required.
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online or may be provided on request in hard copy. Authors are available to discuss the
content of this briefing with Members and their staff, but not with the general public.

Contents
1

Introduction

When will a debtor be sent to prison?

2.1 Means hearing

2.2 A suspended committal order

2.3 Committal stage

Imprisonment for unpaid debt a last resort

Fraud

Where to go for help?

5.1 National Debtline

5.2 Citizens Advice

5.3 Law Centres

5.4 Mortgage advice and repossessions

5.5 Duty solicitor

Introduction

For many people with large debts, being sent to prison is a great fear. However, in most
cases, it's very unlikely. A prison sentence is a last resort and apart from fraud it can happen
only for specific types of debt classified as priority debts. These are more urgent debts
than others because the consequences of not paying them can be more serious. Priority
debts include:

Council tax arrears if the debtor doesnt pay these arrears, a court can, as a last
resort, send the debtor to prison

Magistrates Court fines - such as fines for traffic offences or using a television
without a licence (which is a criminal offence). If these fines are not paid, the court
can, as a last resort, send the debtor to prison.

Arrears of maintenance - payable to an ex-partner or children (this includes child

support owed to the Child Support Agency). If these arrears are not paid, the court
can, as a last resort, send the debtor to prison.

It follows that a person cannot be sent to prison for non-payment of utility bills; although the
relevant utility company could disconnect the householders supply of gas, electricity, etc for
non-payment. Similarly, a person cannot be sent to prison for not repaying their mortgage or
other secured loan debts (that is, loans secured on property). For secured debts, there is
only a risk of imprisonment if the person obtained the loan /credit fraudulently (e.g. by making
a mortgage application in someone elses name or by making false claims about salary etc).
Of course, if a debtor defaults on repayment of a mortgage there is a very real risk that the

property will be repossessed and sold by the mortgage company/bank. It is also worth noting
that it is a civil rather than a criminal matter when a person fails to pay credit card debts,
store cards and other credit debts that were applied for and obtained legally. As such, the
debtor cannot go to prison even if they wilfully refuse to pay the debts, but civil debt
proceedings could be issued against them.
Importantly, a person cannot go to prison if they are bankrupt. The Debtors Act 1869
abolished imprisonment for debt. However, a Bankruptcy Restriction Order (BRO) may be
made by the court against a bankrupt if the court has decided that the bankrupts conduct
has been culpable or dishonest. When a court imposes a BRO it will subject the debtor to
certain restrictions for a set period of between 2 and 15 years. If the order is broken it is a
criminal offence and the debtor may receive a custodial sentence. The restrictions imposed
by a BRO are set out in insolvency law and include prohibiting the bankrupt from acting as a
company director or from taking part in a companys promotion, formation or management
without the courts prior permission.

When will a debtor be sent to prison?

As a general rule, a debtor will only be sent to prison if the Magistrates Court believe that
they wont pay rather than cant pay their debts.
The detail of the court procedures to be followed (and any ensuing court orders) will differ
depending on whether the unpaid debt relates to council tax arrears, child support or
maintenance arrears, or unpaid Magistrates Court fines. However, in general terms the
process can be summarised as follows.
2.1

Means hearing

The main purpose of the first Magistrates Court hearing is to see why the debt has not been
paid (this is known as a means hearing). To this end, the Magistrates will ask the debtor
about his/her reasons for not paying and will ask for details of their income. At the end of this
hearing, the court may force payment of the debt, perhaps via an instalments order or an
attachment of earnings order (i.e. an order for money to be taken directly from the debtors
earnings each month by the employer and paid into court). Provided the debtor repays the
debt as instructed by the court (i.e. on time and without defaulting on any of the repayments)
that will be the end of the matter.
2.2

A suspended committal order

If the debtor deliberately and wilfully refuses to pay, the court will probably make a
'suspended committal order'. This means that the Magistrates will set an amount for the
debtor to pay each week or month. This order has to be taken seriously; the court will make it
clear to the debtor that he/she may be sent to prison if they miss any of these payments
(although there will need to be another court hearing). Subsequently, if the debtor defaults on
repayment, the court may issue a warrant with bail against the debtor. Under a warrant with
bail order, the police will arrest the debtor but will then bail him/her to appear in court on the
date specified (known as the committal stage). Even at this late stage it may be possible to
avoid imprisonment if the debtor prepares a personal budget statement for the Magistrates
Court setting out all their income, expenses and debts. In effect, the debtor has to convince
the court that they are contrite and will pay the debt by instalments at an agreed sum.
However, if the debtor fails to attend the hearing (and persistently refuses to attend other
hearings) then a warrant without bail may then be issued by the Magistrates Court. Under a
warrant without bail, the police will arrest the debtor and hold him/her in custody until he/she
can be taken to the next available court hearing.

2.3

Committal stage

At the committal stage, even for non-criminal debts such as council tax or business rates
arrears, the debtor has the right to proper legal advice even if they cannot afford to instruct
their own solicitor. In practice, this means that the Magistrates Court should give the debtor
time to speak to a duty solicitor at the court before their case is heard. This is important
because, before any committal order is made, the court has the discretion to write-off all or
part of a debt (called 'remitting') if it feels this is the right thing to do given the circumstances
of the case. The duty solicitor may be able to speak on behalf of the debtor and give the
court reasons for doing this, as well as preventing the debtor getting a committal order.

Imprisonment for unpaid debt a last resort

As already outlined above, apart from fraud, a prison sentence can happen only for specific
types of unpaid debt: fines from the Magistrates' Court; council tax or business rates; and
maintenance for a husband, wife or children. Even for these types of debt, imprisonment for
non-payment is very rare; a prison sentence is regarded by the court as a last resort. The
threat of imprisonment is usually only used if the debtor constantly ignores requests to pay
by the court, or in cases of contempt of court, or serial offending. For example, the
Magistrates Court can impose a fine of up to 1,000 for using a television without a licence.
If the fine remains unpaid, the court can impose a custodial sentence, but this a matter for
the court and will be a last resort.
On 17 November 2005, in a written answer to a Parliamentary Question on the annual
average number of people given prison sentences for not paying their television licence over
the last five years, Fiona Mactaggart, then of the Department for Culture, Media and sport,
said:
I have been asked to reply. The information on the annual number of people given
prison sentences for not paying their television licence over the last five years is in the
following table, as recorded on the Prison Service IT system. The Prison Service does
not collect data relating to the costs of keeping prisoners in custody by offence type. 1

Receptions into prison of people given prison sentences for using a TV without a
licence by year England and Wales
Year

Number

2000

36

2001

30

2002

14

2003

20

2004

28

In June 2003, in another written answer to a PQ on how many (a) men and (b) women are in
prison for non-payment of their television licence, and what proportion that represents of the
male and female prison population, Paul Goggins, then of the Home Department, said:

HC Deb 17 Nov 2005 c1408W

On 31 March 2003, there was one man and no women in prison

establishments in England and Wales for defaulting on the payment of a fine
for using a television without a licence. This represents 0.001 per cent of the
male prison population in England and Wales. 2

In respect of arrears of council tax it is possible for the local authority to apply to the
Magistrates Court for a liability order. This type of order gives the local authority power
to enforce the debt via an instalments order; an attachment of earnings order; or by sending
bailiffs to the debtors home to seize and sell goods to the value of the debt. If all attempts at
settling the debt are unsuccessful, local authorities in England and Wales (but not Scotland)
can as a last resort apply to the Magistrates Court for a warrant to commit the debtor to
prison for the unpaid council tax. This is considered to be a coercive measure, designed to
elicit the funds, rather than a punitive measure for not paying. In fact, only a handful of
people each year are committed to prison.

Fraud

If the debt owed is due to a crime such as fraud, then the debtor may be prosecuted by the
police and this could lead to prison. For example, if a person fraudulently applied for state
benefit or a credit card they may be prosecuted for fraud/theft. However, if a creditor or debt
collector tries to intimidate a debtor by making an unfair accusation of fraud or unfairly
threatens prosecution, such action may well amount to harassment.

Where to go for help?

The following organisations can provide debt advice free of charge:

5.1

National Debtline

National Debtline is the national telephone helpline for people with debt problems in England,
Scotland and Wales. The service, which is free, confidential and independent, offers expert
advice on the full range of debts. The service has existed since 1987 and is now part of the
Money Advice Trust (a registered charity).
National Debtline deals with telephone, email and written enquiries. The service can also
assist callers with the setting up of Debt Management Plans for England and Wales, Debt
Relief Orders for England and Wales or Debt Management Plans for Scotland. The contact
details for National Debtline are as follows:
National Debtline
Tricorn House
51-53 Hagley Road
Edgbaston
Birmingham B16 8TP
Tel. No. 0808 808 4000
Website: www.nationaldebtline.co.uk/england_wales/
5.2

Citizens Advice

The Citizens Advice service provides free independent advice on a range of legal problems,
including debt, bankruptcy and insolvency issues. The Citizens Advice website has a search
facility to enable a person to locate their nearest CAB at:
http://www.citizensadvice.org.uk/index/getadvice
2

HC Deb 23 June 2003 c606W

5.3

Law Centres

Law centres were set up to help people access free independent legal advice within their
local community. They are staffed by lawyers and non-lawyers with different ranges of
experience. Their main areas of work include: welfare rights; immigration and nationality;
housing; employment rights; and sex and race discrimination. However, they may also cover
other areas of work depending on the concerns of the local community such as: debt and
insolvency matters. The Law Centres Federation (LCF) was established in 1978 and acts as
a co-ordinating body for Law Centres in the UK.
The LCF website provides information on what services Law Centres provide, as well as a
searchable database to find local Law Centres at:
http://www.lawcentres.org.uk/lawcentres/detail/find/
Alternatively, details of Law Centres can be found in local telephone directories.
5.4

Mortgage advice and repossessions

People in danger of having their property repossessed may be able to get free advice
through a Legal Services Commission scheme paid for by legal aid:
http://www.legalservices.gov.uk/
The DirectGov website includes information about the Housing Possession Court Duty
Scheme which can provide last minute advice at hearings in courts across England and
Wales:
http://www.direct.gov.uk/en/HomeAndCommunity/Keepingyourhomeevictionsandhomelessne
ss/Mortgagesandrepossessions/DG_10026228
The website of Shelter, the housing and homelessness charity, also provides information on
repossessions: http://england.shelter.org.uk/get_advice/repossession
5.5

Duty solicitor

If the case comes before the Magistrates Court, the debtor has the right to have a solicitor
free of charge to represent them (the duty solicitor). A solicitor may be able to speak to the
court and point out relevant factors that the debtor may not have considered.
It should be noted that in most cases where people have genuine and severe difficulties in
payment of debts, an order for imprisonment is rare. Instead, they are ordered to pay a sum
they can afford over a specified period of time without default under the direction of a
Magistrates or County Court order.