THE STATE has told the High Court it is “not standing over” a one-month jail sentence imposed on an unemployed mother of two over her failure to pay arrears of €5,865 on an €18,000 court judgment secured against her over non-repayment of a credit union loan.
However, the State has denied arguments by Caroline McCann that provisions of the Enforcement of Court Orders Acts are unconstitutional or contrary to the European Convention on Human Rights.
It claims it is entitled to have a statutory mechanism in place for enforcement of lawfully made court orders.
The jail term was imposed on Ms McCann in 2005 by the late District Court judge David Maughan over her failure to pay a series of weekly instalments of €82, resulting in arrears of €5,856. The instalments were part of a scheme to pay off a court judgment of €18,000 obtained in 2003 by Monaghan Credit Union against Ms McCann over her non-repayment of a credit union loan.
Ms McCann (36), Mullaghmatt, Co Monaghan, has brought her action against the State with Monaghan Credit Union as a notice party and the Human Rights Commission as an amicus curiae (assistant to the court on legal issues).
Ms McCann claims the imprisonment order is unlawful as it deprives her of her liberty merely on the ground of inability to fulfil a contractual obligation and amounts to a conviction for a criminal offence.
Ms McCann, who was not legally represented in either the District or Circuit Courts, claims the District Court was not entitled to jail her without giving her the opportunity to legally represent herself. Where she could not pay for such assistance, it must be provided free of charge, she also claims.
Yesterday, Michael Cush SC, for the State, told Ms Justice Mary Laffoy the State had indicated to Ms McCann in 2007 that, given the “peculiar circumstances”, it was not prepared to stand over the District Court order to jail her.
Under the Enforcement of Court Orders Acts, an order for imprisonment may only be made when a District Court judge is satisfied the failure to pay was due to either wilful refusal or culpable neglect of a debtor, he said.
Judges had a wide discretionary power in this regard and it should be presumed a judge will act fairly, counsel added.
James O’Reilly SC, for Monaghan Credit Union, said a common-sense approach should be adopted with the High Court quashing the jail order and returning the matter to the District Court. Counsel said the credit union is prepared to give an undertaking to vary the weekly instalments but the debt owed would “have to be resolved sooner or later”.
Donal O’Donnell SC, for Ms McCann, said it was accepted she did not have the means to make repayments. The case continues.