AN UNEMPLOYED mother of two has won a High Court case in which she challenged the power of a judge to send her to prison for not paying money she owed to her credit union
The challenge by Caroline McCann is a test case with implications for others in similar situations.
It is estimated that hundreds of such imprisonment orders are made annually by the courts.
Ms McCann (36), Mullaghmatt, Co Monaghan, 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 Justice Mary Laffoy yesterday ruled the relevant law – section 6 of the Enforcement of Court Orders Acts 1940 – breached McCann’s rights to fair procedures and personal liberty under the Constitution.
The judge said Ms McCann was a vulnerable woman whose lack of literacy and drink and psychiatric problems undoubtedly meant she could not have dealt with the District Court or other cases against her without legal advice.
However, she had not been represented either when judgment was secured against her over non-repayment of the credit union loan or when the jailing order was made and got no advice until after gardaí came to her door seeking to enforce the jailing order.
The judge said she was satisfied Ms McCann was unable to read and understand the summonses in her case.
Noting the State had said it was not standing over the jailing order but was standing over the constitutionality of the section 6 scheme, the judge said it was “inexplicable” the State could countenance continuation of such an unconstitutional and “vague” scheme which effectively cost the State and creditors when an alternative scheme with the appropriate safeguards could be substituted in its place.
Given her finding of unconstitutionality, the judge said she was not required at this stage to decide issues relating to compatibility with the relevant provisions of the European Convention on Human Rights.
She adjourned to next week issues about whether Ms McCann has made a claim for entitlement to damages.
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 Circuit Court judgment of €18,000 obtained in 2003 by Monaghan Credit Union over non-repayment of her credit union loan.
