|Printer Friendly Email this article|
Sheriff Officers New Image?
|Sheriff Officers were severely criticised when the enforcement debate was taking place before the Scottish parliament. Was this justified and was their image tarnished?
It is this body of individuals, appointed by the Court but operating independently, who are charged with Scottish Judgment enforcement. As such their role is ?key? within the judicial system. Indeed, without them it is hard to conceive how the process could function at all.
Unlike in England where there are Certificated Bailiffs,Bailiffs and High Court Sheriffs the Scottish Sheriff Officer enforces all Sheriff Court Decrees, (Judgments). This effectively means as a matter of routine they carry out diligence (the generic term for Scottish judgment enforcement) on their clients? instructions for all types of debt, including consumer and commercial. In England the Under Sheriffs regard themselves as being quite far apart from their Certificated Bailiff cousins ? in fact they may even deny being related at all! Indeed they not even ?sully their hands? with the types of debt the Certificated Bailiff deals with and often distance themselves from this body ?possibly because of the type of debt and , perhaps, the possible unwarranted reputation associated with Certificated Bailiffs.
The Scottish Sheriff Officer, however, does not have this luxury and is obliged to enforce all types of debt; ?the good, the bad and the ugly?.
In particular some of the Sheriff Officers have responsibility to enforce Council Tax arrears.
This type of debt enforcement would have been put out to tender by the various councils to selected Sheriff Officers firms. Those charged with its enforcement ,having successfully won the tender, would have entered into private contractual arrangements with the various councils.
Historically many Scottish councils have a dreadful records with their credit control procedures. What many credit controllers would consider basic credit control filtering procedures, such as profiling debtors and telephoning debtors prior to judgment enforcement or court action ,are simply not carried through or, perhaps, not even recognised. This may be part of the reason why many councils have dreadful Council Tax arrears which politically are unacceptable.
It is to the Sheriff Officers to whom the councils turn to have these arrears reduced. Put simply the more the Sheriff Officers collect the greater the tax arrears are reduced which will obviously be good news for the councils. Sheriff Officers enforce council tax by way of Summary Warrant. This type of procedure bypasses the normal court process. In effect councils are not obliged to traverse the long and complex route through the Sheriff Court to achieve Judgment. Basically the councils apply for a form which the court will automatically provide. The Summary Warrant is a virtually automatic path to enforcement.
During the poinding and warrant sale debate many examples of unadvisable and totally ineffective enforcement were given to the Parliament?s Social Inclusion Committee. For example, shortly before the debate, evidence was given of an unfortunate woman with Council Tax arrears whose washing machine had been poinded. This lady was on benefit and apparently should not have been paying Council Tax at all. Nevertheless the poinding caused an outrage particularly because she was a single mother with an incontinent child.
With Tommy Sheridan?s Members Abolition Bill having been passed by the Parliament (but not to be implemented until December 2002), the Parliament?s Justice Minister, Jim Wallace, invited a Working Group to come up with an alternative to the current system. This forms the recommendations contained in the report ?Striking the Balance?. In effect this report calls for targeted enforcement with compulsory sale orders only being granted by the court in respect of those individuals who are clearly able to pay their debts with sufficient assets but simply refuse to do so. Those debtors having financial difficulties will have adequate opportunity to disclose this prior to and after judgment with the result that compulsory sale orders will be rare indeed.
Throughout the entire abolition debate the criticism levelled at Sheriff Officers solely related to Council Tax collection. There was never any mention of Sheriff Officers being heavy handed in relation to a commercial debt. However, there is no doubt their reputation had been tarnished. Despite their best efforts at public relations their professional body, the Society of Messengers at Arms and Sheriff Officers, were unable to remedy the situation.
One of the Sheriff Officers? main arguments was that they were simply carrying out the council?s instructions. The councils, in turn, were trying to recover an unacceptably large volume of Council Tax arrears. It emerged throughout the enforcement debate that the councils were not separating the ?wheat from the chaff? before the Summary Warrants were being passed to the Sheriff Officers. In effect the Sheriff Officers were being instructed to enforce the Warrants against many of those who simply were not in a position to satisfy the sums due to the Council. To put it simply the debt had not been profiled.
Those castigating the Sheriff Officers quickly pointed out they were only too keen in accepting instruction and attempting enforcement in any kind because they had a financial incentive to do so. This was because each time diligence was carried out a fee would be payable. So it was put to the Sheriff Officers that they had every incentive to enforce the debt whether or not the recovery prospects were good, bad or indifferent. Coupled with this that they had, in effect, standing orders to operate in this fashion did nothing to enhance their reputation in the publics' eyes..
Small wonder Tommy Sheridan, whose Members Bill introduced the abolition measure, was able to say this type of enforcement was a means of punishing the poor and that the Sheriff Officers were ?Rottweillers in Suits? and ?Bully Boys?.
In an attempt to change their image the Sheriff Officers are now attempting to fight back. They say their job title has been ?tarnished in the eyes of the Scottish public?. The Sheriff Officers? Society say they are concerned about ?unreasonable and unjustified criticism?. What they want to do is to change their name. They have suggested as a new designation possibly ?Officer of Court?.
It was reported on January 17th in the Herald newspaper that the Sheriff Officers were concerned the criticisms levelled against them were unreasonable and without foundation and ?had only served to lessen their standing in the eyes of the public?.
Saying that ?Sheriff Officers have a difficult and key role to play within the Scottish judicial system? the Sheriff Officers have said they had not been given an adequate opportunity to respond to the criticisms levelled against them. They are concerned such unjustified comments and incorrect media reporting have merely served to make the work of the Sheriff Officer even more difficult and has led to individuals who find themselves interfacing with the Sheriff Officers holding a ?pre-conceived erroneous idea? of them.
Whether or not a change of title will make any difference to their image has to be seen. After all ?a rose is a rose? by any other name. Certainly Tommy Sheridan is unimpressed and is reported to have said ?these guys make a living from the despair and poverty of pensioners and lone parents, many of whom feel threatened and harassed by the individuals more concerned with extracting their pound of flesh than acting as independent Officers of Court. If they want a new label then they ought to wind up the debt collection companies attached to all of these firms so that there can be genuine independence and not a financial interest in pursuit of those in debt.
On a wider note, perhaps those involved with the English Judgment review can appreciate that the Scottish review is entirely politicised. In England what is being attempted is to have a more effective enforcement regime. In contrast in Scotland political criticism was levied because the system was seen to be ?too effective?.
In saying that the body politic in Scotland does appreciate the requirement for there to be an effective means to ensure that those entering into legally binding obligations who simply refuse to honour them must be subject to a judicial process obliging them to pay their debts. It is recognised this can only be achieved by a fair and reasonable system of judgment enforcement which will have to be carried out by some body of persons ? no matter what they are called.
|Printer Friendly Email this article|