AN UNEMPLOYED mother of two with a total weekly income of €300 has brought a test case challenging the constitutionality of a one-month jail sentence imposed on her over failure to make repayments on a credit union loan.
The sentence imposed on Caroline McCann in her absence and without her being legally represented over arrears of €5,865 on an €18,000 judgment secured against her because of her failure to repay the credit union loan was reminiscent “of Victorian times”, her counsel Donal O’Donnell SC argued. Such sentences were common, he added.
She failed to make a series of weekly instalments of €82, resulting in arrears of €5,856.
On November 14th, 2005, a district judge had sentenced Ms McCann, who was neither present in court nor legally represented, to a month in prison and the first she knew about that order was when gardaí came to her door, he said.
Gardaí said they would come back in a week but Ms McCann initiated this action after obtaining legal advice from the Northside Community Law Centre, Coolock, through the Monaghan Money Advice and Budgeting Service (Mabs).
In proceedings regarded as a test case, Ms McCann, Mullaghmatt, Co Monaghan, claims the 2005 District Court order jailing her is unconstitutional and also breaches her rights under the European Convention on Human Rights (ECHR).
Opening her challenge yesterday, Mr O’Donnell said it was accepted Ms McCann did not have the means to make the repayments but, on foot of the arrears of €5,865, the credit union later secured an order from the late District Judge David Maughan for her committal to prison.
His client was an unemployed single mother who left school at sixth class and had to give up her local authority home and move in with her mother. She also suffered from health problems and had been hospitalised. Her income from social welfare and child benefit was less than €300 per week and Mabs estimated she was only able to repay €10 a week.
The action is against the State, which denies the claims, while Monaghan Credit Union is a notice party. The Human Rights Commission is also involved as an amicus curiae (assistant to the court on legal issues).
Ms McCann claims the imprisonment order is unlawful in that 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.
She argues the relevant provisions of the Enforcement of Court Orders Acts 1926 and 1940 are unconstitutional and inconsistent with the ECHR and that one month’s imprisonment for non payment of €5,865 is entirely disproportionate.
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 represent herself. Where she could not pay for such assistance, it must be provided free of charge, she also claims.
Mr O’Donnell said the case showed a situation in 21st-century Ireland akin to that of Victorian-era Britain, before the writings of Charles Dickens prompted a change in the law.
No investigation was undertaken by the District Court to establish if she was someone who could not repay or was refusing to repay the money owed, counsel said.
The European Convention on Human Rights provided a person “should not be deprived of their liberty if they are unable to fulfil their contractual obligations”.