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'... at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements,namely that:
W had been unable to satisfy the burden on her to prove that H had or had had since May 2005 the means to pay the sums found owing, but had neglected or refused to do so or that the alleged hidden assets existed.i. The fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;
ii. The fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;
iii. The burden of proof is at all times on the applicant; and
iv. The respondent cannot be compelled to give evidence.'
'It follows that in practice the Commission must adduce sufficient evidence to establish at least a case to answer. In the generality of cases the exercise may not need to be a particularly elaborate one, since there will be a history of default from which inferences can properly be drawn. But the exercise is an essential one: the defendant is not required to give evidence or to incriminate himself, and in the absence of a case to answer he is entitled to have the application against him dismissed without more. If the Commission establishes a case to answer, there will be an evidential burden on the defendant to answer it, but that is unobjectionable in Art 6 terms. I would add that there is no requirement under article 6 for the Commission to serve evidence in advance of the hearing, but if it chooses to wait for evidence to be given by the presenting officer at the hearing, the court must be astute to ensure that the defendant is not taken by surprise and that the matter can proceed at that hearing without unfairness to him.'Mostyn J makes the point that this issue extends beyond s 5 and encompasses child support enforcement and suggests that McFarlane LJ’s 'restrictive' formulation will cause practical problems. This seems an issue which will need to be resolved.