Mother-of-two to sue State for imprisonment for not paying loan

The decision to impose a one-month prison sentence on a woman for the non-payment of a debt of €5,865 has been described as being something from Victorian times when people could be jailed for lengthy terms over debts, the High Court has heard.

In what is seen as an important test case, mother-of-two Caroline McCann, Mullaghmatt, Co Monaghan has commenced proceedings against the State where she is seeking to a quash a 2005 District Court order jailing her for one month over her failure to meet loan instalments of €82 per week owed to Monaghan Credit Union.

She claims that the decision to jail her is unconstitutional and in breach of the European Convention of Human Rights. The State has opposed the action and rejects the claims.

Monaghan Credit Union is a notice party to the proceedings, while the Human Rights Commission is present as an assistant to the court on legal issues (Amicus curie).

In her action, Ms McCann claims that the order made at Monaghan District Court which deprives her of her liberty merely on the ground of inability to fulfil a contractual obligation, which amounts to a conviction for a criminal offence, is unlawful.

She is seeking declarations including that Provisions of the enforcement of Court Orders Acts 1926 and 1940 are unconstitutional and inconsistent with the ECHR and that the one months' imprisonment over the non payment of €5,865 is entirely disproportionate.

It was also argued that if a person appears before a court without legal representation the court cannot proceed to jail her without giving her the opportunity to legally represent herself. Where a person cannot pay for such assistance, it must be provided free of charge.

It is claimed that the proceedings at Monaghan District Court breached her constitutional justice and were inconsistent with the European Convention in that she was not legally represented.

It is claimed that adequate opportunity must be given to a person who appears before a court in a case where their liberty is at risk to seek legal assistance. Where a person does not have sufficient means to pay for legal assistance, it should be provided free of charge, they also contend.

Opening the case today before Ms Justice Mary Laffoy, Donal O'Donnell SC for Ms McCann said that the court order is contrary to natural justice, the provisions of the constitution and the European Convention for the Protection of Human Rights.