CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 19380/92                       by Stephen Andrew BENHAM                       against the United Kingdom         The European Commission of Human Rights sitting in private on 13 January 1994, the following members being present:         MM.   C.A. NØRGAARD, President            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   J.-C. GEUS            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            N. BRATZA            E. KONSTANTINOV         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 September 1991 by Stephen Andrew BENHAM against the United Kingdom and registered on 21 January 1992 under file No. 19380/92;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the Commission's decision of 12 October 1992 to communicate the       application;   -      the observations submitted by the respondent Government on 17       February 1993 and the observations in reply submitted by the       applicant on 13 May 1993;   -      the material submitted by the parties in preparation for the       hearing;   -      the oral submissions of the parties at the hearing on       13 January 1994;         Having deliberated;         Decides as follows:   THE FACTS         The particular facts of the case         The applicant is a United Kingdom citizen, born in 1966.   He is represented by Mr. J. Wadham of Liberty (previously known as the National Council for Civil Liberties), London.         On 21 August 1990 the Poole Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge (poll tax).         On 25 March 1991, in answer to a summons,   the applicant appeared at the Poole Magistrates' Court for an inquiry to be made into his means and the reasons for his failure to pay the poll tax.   The applicant, who was not represented, gave evidence that         (a) he had left the Government Employment Training Scheme in       March 1990 and that he had not had gainful employment since then;         (b) he had applied for Income Support but had been refused;         (c) he had no personal assets or income.         On the basis of this evidence (which was accepted as true), the Magistrates concluded that the applicant's failure to pay the community charge was due to his culpable neglect "as he clearly had the potential to earn money to discharge his obligation to pay".   They issued a warrant committing the applicant to prison for 30 days.         On 28 March 1991 a solicitor, who was informed about the facts, appeared (without payment) before the same bench of the Magistrates' Court and applied for bail on the applicant's behalf, but this was refused.   The solicitor also lodged an appeal by way of case stated and an application for bail pending appeal.   Moreover he applied for and obtained an emergency legal aid certificate to pursue the appeal.         As the High Court is not seized of an appeal by way of case stated until the Magistrates' Court has actually stated a case and it has been lodged in the High Court, on 4 April 1991 the solicitor lodged a further application in the High Court for judicial review of the Magistrates' Court's decision, as this would allow for an immediate bail application.         On 5 April 1991 the application for bail was heard before a High Court judge and the applicant was granted bail, while on 16 April 1991 leave to apply for judicial review was also granted.         On 7 and 8 October 1991, the High Court heard the two applications, that is, the appeal by way of case stated and the application for judicial review.   The applicant was represented and had legal aid for the appeals.         On 8 October 1991 the High Court answered in the negative the following three questions put by the Magistrates' Court:              "(1) Whether the following findings of fact can be            supported by the evidence before us, namely that the            appellant's failure to pay which led to the liability order            being made was due to his culpable neglect.              (2) Whether, before issuing the said warrant, we conducted            an adequate inquiry into the appellant's means.              (3) Whether we acted reasonably in exercising our            discretion to issue the said warrant".         In connection with these questions, the High Court found:         "In certain circumstances a failure on the part of the debtor to       work and put himself in funds to pay the Community Charge might       constitute culpable neglect.   In my judgment however,   before       such a finding could be sustained, at the very least there would       have to be clear evidence that gainful employment, for which he       was fit, was on offer to the debtor and that he had rejected or       refused that offer.   There was no such evidence in this case.       In my judgment, the justices' findings of culpable neglect cannot       be sustained on the evidence adduced before them. ...    In the       present case the justices found that the applicant had no income       and no assets at the time that he appeared before them, that       being the relevant time for them when considering whether they       should issue a warrant so as to commit the appellant to prison.       In my judgment it was incumbent upon them to consider the       alternatives to an immediate commitment to prison."         The appeal was allowed and the first instance order was set aside.         Relevant domestic law and practice         Regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 provides as follows:         "41. (1)    Where a charging authority had sought to levy an       amount by distress under Regulation 39, the debtor is an       individual, and it appears to the authority that no (or       insufficient) goods of the debtor can be found on which to levy       the amount, the authority may apply to a Magistrates' Court for       the issue of a warrant committing the debtor to prison.         41. (2)     On such application being made, the court shall (in       the debtor's presence) inquire as to his means and inquire       whether the failure to pay which led to the liability order       concerned being made against him was due to his wilful refusal       or culpable neglect.         41. (3)     If (and only if) the court is of the opinion that his       failure was due to his wilful refusal or culpable neglect it may       if it thinks fit - (a) issue a warrant of commitment against the       debtor, or (b) fix a term of imprisonment and postpone the issue       of a warrant until such time and on such conditions (if any) as       the court thinks just."         In Re McC the Appellate Committee of the House of Lords held that Magistrates acted without jurisdiction or in excess of jurisdiction and would be liable in damages where an individual could show that the Magistrates had no jurisdiction over the cause at all, that they exercised their powers in a procedural manner that involved a gross and obvious irregularity, or that the order of the court was not based on any proper foundation of law because of failure to observe a statutory condition precedent ([1985] AC 528).         In a case concerning rates, the predecessor to the community charge (R. v. Manchester City Magistrates Court, ex parte Davies [1989] All ER 30), the Court of Appeal found that where Magistrates failed to make proper inquiry as to whether failure to pay rates was due to wilful refusal or culpable neglect, they had failed to observe a statutory condition precedent and therefore acted outside or in excess of their jurisdiction.   The Magistrates were therefore liable in damages for the applicant's unlawful imprisonment.         On 1 January 1991 Section 108 of the Courts and Legal Services Act 1990 entered into force.   The Act replaces Sections 44 and 45 of the Justices of the Peace Act 1979 providing, inter alia, that an action only lies against a Justice of the Peace (Magistrate) who acts beyond jurisdiction if, and only if, it is proved that he acted in bad faith.         Neither the civil nor the criminal legal aid scheme provides for full representation before the Magistrates for proceedings for commitment to prison for non-payment of the community charge.   The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation. An extension of the costs limit can be granted by the Legal Aid Board. Assistance by way of Representation ("ABWOR") enables the court, in certain circumstances, to a appoint a solicitor who happens to be within the court precincts for the purposes other than the provision of ABWOR to represent a party who would not otherwise be presented.   COMPLAINTS         The applicant alleges a violation of Article 5 para. 1 of the Convention in that he was unlawfully detained by the Magistrates, who acted beyond their jurisdiction (cf. R. v. Manchester City Magistrates Court, ex parte Davies).         As a result of the amendment to the law brought about by Section 108 of the Courts and Legal Services Act 1990, no action lies against Magistrates in respect of such unlawful detention.   The applicant alleges a violation of Article 5 para. 5 of the Convention in this respect.         Under Article 6 of the Convention, the applicant considers that, regardless of whether the proceedings are civil or criminal, he should have been entitled to legal aid before the Magistrates.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 September 1991 and registered on 21 January 1992.         On 12 October 1992 the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 17 February 1993 and the applicant's observations in reply were submitted on 13 May 1993.         On 8 April 1993, the Commission decided to grant legal aid to the applicant.         On 30 August 1993, the Commission decided to hold an oral hearing.         At the oral hearing, which was held on 13 January 1994, the parties were represented as follows:   For the Government:   Mrs. A.F. Glover                  Agent, Foreign and Commonwealth Office Mr.   D. Pannick, Q.C.             Counsel Ms.   A. Jenkins                   Adviser, Lord Chancellor's Department Ms.   E. Hutchinson                Adviser, Lord Chancellor's Department   For the applicant:   Mr.   B. Emmerson                  Counsel Mr.   J. Wadham                    Legal director of Liberty         At the hearing, the Government withdrew an argument that the applicant could have brought an action against the Governor of the prison at which he was being held.   THE LAW   1.     The applicant alleges a violation of Article 5 para. 1 (Art. 5-1) of the Convention in that his detention was neither "in accordance with a procedure prescribed by law", nor "lawful" in domestic law, within the meaning of Article 5 para. 1 (a) or (b)(Art. 5-1-a, 5-1-b), and that none of the other sub-paragraphs applies.         Article 5 para. 1 (Art. 5-1) of the Convention provides, so far as relevant, as follows:         "1. Everyone has the right to liberty and security of person. No       one shall be deprived of his liberty save in the following cases       and in accordance with a procedure prescribed by law:         (a)   the lawful detention of a person convicted by a competent       court;         (b)   the lawful arrest or detention of a person for non-       compliance with the lawful order of a court or in order to secure       the fulfilment of any obligation prescribed by law;..."         The applicant notes that in its judgment in the present case the Divisional Court answered the Magistrates' questions, "Whether before issuing the ... warrant, (they) conducted an adequate inquiry into the appellant's means", and "Whether the following finding of fact can be supported by the evidence before the Magistrates' Court, namely that the applicant's failure to pay which led to the liability order being made was due to his culpable neglect", in the negative. He submits that the present case cannot be distinguished from the R. v. Manchester City Magistrates' Court ex parte Davies case, and that the detention was unlawful both in domestic and in Convention terms.         The Government submit that the Magistrates made an error of law within their jurisdiction which has been corrected on appeal. They rely on the absence of any suggestion in the High Court's judgment that the applicant's detention was unlawful.         The Commission has taken cognizance of the parties' submissions. After a preliminary examination of the complaints under Article 5 para. 1 (a) and (b) (Art. 5-1-a, 5-1-b) of the Convention, the Commission finds that they raise complex issues of fact and law which must be examined on the merits. This part of the application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.   2.     The applicant also complains under Article 5 para. 5 (Art. 5-5) of the Convention that he had no right to compensation under domestic law for his allegedly unlawful detention.         Article 5 para. 5 (Art. 5-5) provides as follows:         "Everyone who has been the victim of arrest or detention in       contravention of the provisions of this Article shall have an       enforceable right to compensation."         The applicant submits that the effect of Section 108 of the Courts and Legal Services Act 1991 is to deprive him of the remedy to which he had previously been entitled. The Government submit that the question does not arise as there is no violation of any provision of Article 5 (Art. 5) of the Convention.         The Commission recalls that under Article 5 para. 5 (Art. 5-5) of the Convention the right to compensation is conditional on a breach of one of the paragraphs of Article 5 (Art. 5). The Commission has declared admissible the applicant's complaints under Article 5 para. 1 (Art. 5-1) of the Convention. It finds that the question whether the applicant's right under Article 5 para. 5 (Art. 5-5) of the Convention was violated also raises complex issues of fact and law, which require further examination on the merits.         This part of the application can therefore also not be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.   3.     Finally, the applicant complains that legal aid was not available to him in the Magistrates' Court.   He alleges a violation of Article 6 (Art. 6) of the Convention.         Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:         "1.   In the determination of his civil rights and obligations or       of any criminal charge against him, everyone is entitled to a       fair and public hearing within a reasonable time by an       independent and impartial tribunal established by law...         3.   Everyone charged with a criminal offence has the following       minimum rights:         (c)    to defend himself in person or through legal assistance of       his own choosing or, if he has not sufficient means to pay for       legal assistance, to be given it free when the interests of       justice so require."         The applicant submits that, although domestic law categorises the proceedings at issue in the present case as civil, both the nature of the proceedings and the actual penalty imposed indicate that a criminal charge was in fact determined. He considers that, whatever the nature of the proceedings, they were so complex as to require proper legal representation, especially regarding the alternatives to immediate imprisonment. He submits that there was no adequate provision for representation before the Magistrates.         The Government submit that the proceedings were not criminal. They further consider that the committal proceedings themselves did not determine the applicant's civil rights and obligations, but were merely execution of the civil judgment brought about by the liability order in the case.   They submit that the combined effect of assistance under the Green Form scheme and ABWOR complies with the requirements of Article 6 (Art. 6) of the Convention, even if this Convention provision applies to the proceedings.         The Commission finds that this complaint also raises complex issues of fact and law which must be examined on the merits. This part of the application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention either. No other grounds for inadmissibility have been established.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits.   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                 (C.A. NØRGAARD)