CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 26701/95                       by Peter WOOD                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 May 1994 by Peter Wood against the United Kingdom and registered on 14 March 1995 under file No. 26701/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case as submitted by the applicant may be summarised as follows.         The applicant, a United Kingdom citizen born in 1946, resides in Bradford.   a.     Particular circumstances of the case         On 31 March 1994 the applicant was arrested and brought to a police station.   While at the police station the applicant allegedly signed a form requesting legal assistance.         Shortly thereafter the applicant was brought before the Bradford Magistrates' Court, where it was explained to him that his arrest was in connection with his failure to pay community charge.   The applicant again requested legal assistance.   The Court interrupted the hearing and allowed some time for the applicant to obtain the assistance of a solicitor.   The applicant was contacted by a solicitor, who told him that she was dealing only with criminal matters and could not represent him in his case.   Upon the resumption of the hearing, the solicitor appeared before the Court and explained that she was unable to assist the applicant.         The Court continued the hearing.   The applicant stated that he was homeless, unemployed and that he was in receipt of income support. The Court committed the applicant to 21 days in prison for failure to pay community charge.         The applicant served 21 days in prison.   Later he allegedly contacted a solicitor and inquired whether he could obtain legal aid to challenge the lawfulness of his detention, but was told that legal aid was not available.   b.     Relevant domestic law and practice         Regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 ("the 1989 Regulations") provides:         "41. (1)    Where a charging authority has 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 [1985] AC 528, 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.         In a case concerning rates, the predecessor to the community charge (R. v. Manchester City Magistrates' Court, ex parte Davies [1989] 1 All ER 90), the Court of Appeal found that the magistrates' discretionary power to imprison a debtor was "limited and circumscribed" by their obligation to make proper inquiry as to whether failure to pay rates was due to wilful refusal or culpable neglect. The magistrates' deficient inquiry meant that they had failed to observe a statutory condition precedent and therefore acted outside or in excess of their jurisdiction.   The magistrates were 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 lies against a 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 in community charge commitment proceedings.   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 limited circumstances, to appoint a solicitor who happens to be within the court precincts for purposes other than the provision of ABWOR to represent a party who would not otherwise be represented.   The appointment may be made either of the court's own motion or on application by a solicitor.   The court is under no obligation to advise a party of the possibility of an appointment.   The Duty Solicitor Scheme, which provides representation to accused in criminal cases before magistrates, does not extend to community charge proceedings.   COMPLAINTS         The applicant complains that in the space of one hour he was "taken from the street", brought before a court, and sent to prison without having been able to defend himself.   He contends that this was unlawful and contrary to Articles 5 and 6 of the Convention.         Thus, while at the police station, the applicant was not informed of the reasons for his arrest.   Also, he was refused legal assistance and was sent to prison regardless of the fact that he had shown that he was poor and had been unable to pay community charge.   Furthermore, he could not obtain compensation for his unlawful detention.   THE LAW   1.     The applicant alleges a violation of Article 5 (Art. 5) of the Convention which, so far as relevant, provides 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 after conviction 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;       ...         5.    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."         Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "after all domestic remedies have been exhausted ... ".         The Commission recalls that in the case of Benham (No. 19380/92, Comm. Report 29.11.94, pending before the European Court of Human Rights), it expressed its opinion that there had been a violation of Article 5 (Art. 5) of the Convention in that the applicant's detention had been unlawful, and that he was unable to sue for unlawful imprisonment in respect thereof.   In that case, the Commission had recourse to the decision of the Divisional Court in concluding that the applicant's detention had been unlawful within the meaning of the Convention.         In the present case, the applicant did not challenge the decision of the magistrates, either by way of judicial review or by way of case stated.   The Commission does not, therefore, have the benefit of the views of the superior courts in the matter.   The question arises whether the rule on exhaustion of domestic remedies required the applicant to put his case to the High Court.   The Commission notes in this connection that although it had recourse to the High Court's reasoning in concluding that there had been a violation of Article 5 (Art. 5) in the case of Benham, the High Court's findings did not satisfy the requirements of Article 26 (Art. 26) of the Convention (cf. Appl. No. 27771/95, Dec. 29.11.95, unpublished).         Moreover, without the benefit of the High Court's analysis of the requirements of the domestic law in the case, it is difficult for the applicant to satisfy the requirements of the Convention in establishing that his detention was, or may have been, unlawful in domestic law.         It follows that the applicant has not complied with the requirements of Article 26 (Art. 26) of the Convention, and this complaint must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant also alleges a violation of Article 6 (Art. 6) of the Convention because of the absence of legal aid before the magistrates.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN its examination of the complaints under       Article 6 (Art. 6) of the Convention concerning the proceedings       in the present case,         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)