CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.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. 25279/94                Application No. 25280/94 by Andrea ROWE                          by G. M. against the United Kingdom              against the United Kingdom     Application No. 25281/94                Application No. 25285/94 by R. M.                                by L. K. against the United Kingdom              against the United Kingdom     Application No. 28192/95                Application No. 28456/95 by Arthur TILLEY                        by John CRANE against the United Kingdom              against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 applications introduced on 27 April 1994, 27 June 1994, 27 June 1994, 24 June 1994, 26 July 1995 and 24 August 1995 by Andrea ROWE, G. M., R. M., L. K., Arthur TILLEY and John CRANE against the United Kingdom and registered on 23 September 1994, 23 September 1994, 23 September 1994, 23 September 1994, 9 August 1995 and 6 September 1995 under files Nos. 25279/94, 25280/94, 25281/94, 25285/94, 28192/95 and 28456/95 respectively;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       8 November 1996 and the observations in reply submitted by the       applicants on 10 March 1997;         Having deliberated;         Decides as follows:     THE FACTS         The applicants are United Kingdom citizens. Before the Commission they are represented by Clyde, Chappell and Botham, solicitors practising in Stoke-on-Trent.         The facts, as presented by the parties, may be summarised as follows.   A.     Particular circumstances of the cases   a.     In Application No. 25279/94         The applicant was at all relevant times suffering from back difficulties and asthma which have left her unfit for work. At the relevant period of time she received income support in the form of sickness benefit. Between September 1991 and July 1992, the Middleton Magistrates' Court ordered the issue of liability orders in respect of the applicant's unpaid community charge (poll tax).          On 26 May 1993, in answer to a summons issued on the application of Rochdale Metropolitan Borough Council, the applicant appeared at the Middleton Magistrates' Court for an inquiry to be made into her means and the reasons for her failure to pay the poll tax.         The applicant, who was not represented, gave evidence that her income consisted of benefits amounting to some £46 per week; that she had approached the Metropolitan Council with a view to arranging direct deductions from income support towards her poll tax arrears; and that a Council officer had advised her to contact the Council's representative at court and that there would be "no problems" in arranging deductions.         On the basis of the evidence before them, the magistrates concluded that the applicant's failure to pay the community charge was due to her culpable neglect and issued a warrant committing her to prison for 90 days, the maximum permitted by law.         The applicant spent three days in custody before release on bail pursuant to an order made on 28 May 1993 by a High Court judge, who also granted leave to move for judicial review.         The application for judicial review was heard in the High Court on 29 October 1993. The Court observed that the purpose of the community charge legislation was to secure the collection of local taxes and not punishment.         In its decision quashing the magistrates' decision of 26 May 1993 the Court stated inter alia:   "...[T]he justices failed to exercise their discretion correctly. They could (and should) have directed themselves as to the possibility ... of deduction from income support of the sums due. The fact that the [magistrates' clerk]'s affidavit is silent as to whether the justices considered this course leads me to think that they misdirected themselves and that their decision ... was flawed." b.     In Application No. 25280/94         In October 1990, the Newcastle-under-Lyme Magistrates' Court made a liability order in respect of the applicant's unpaid community charge.         On 5 November 1991, the applicant was brought before the same court, on a warrant issued on the application of Newcastle Borough Council, 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 he had been made redundant by his employer some six months previously, had recently separated from his wife and was living on income support.         On the basis of this evidence, the magistrates concluded that the applicant's failure to pay the community charge was due to his wilful refusal. They fixed a term of imprisonment of 14 days but postponed its operation against weekly payments of £8 towards the arrears. The applicant failed to maintain these payments and returned to court on 18 August 1992 on the Council's further application. He was again unrepresented. He gave evidence that his weekly income was income support of £47.50 and that his weekly outgoings amounted to £46. The magistrates issued a warrant committing him to prison for 14 days. At neither hearing was the applicant advised of the possibility of seeking legal representation. The Council was represented by its recovery manager.         The applicant spent several hours in custody before bail and leave to apply for judicial review were granted on the same day. The application for leave included a claim for damages.         The application for judicial review was heard by the High Court on 12 January 1994. The applicant was represented throughout the leave application and substantive judicial review hearing but had legal aid only for the latter.         In its decision quashing the applicant's committal to prison the Court stated inter alia:   "...[I]t is clear on the evidence that these magistrates failed to consider any alternative to imprisonment. It would appear that they rather lost patience with the applicant... They decided immediately on the prison option without considering the alternative ways there were in which to exercise the discretion vested in them... [T]hey fettered their discretion in that they failed to have regard to the purpose of the legislation, namely the collection of local government taxes... [T]his was plainly an unlawful and wrong approach to the purpose of imprisonment. Accordingly ... the decision of 18 August 1992 to commit the applicant to prison was unlawful."         The Court further considered that the magistrates had made a genuine error of law and that their conduct was not so grievous as to justify an award of costs against them. The Court did not address the claim for damages. The applicant has not pursued his claim for damages on the basis of counsel's opinion that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.c.    In Application No. 25281/94         In September 1990, the Newcastle-under-Lyme Magistrates' Court made a liability order in respect of the applicant's unpaid community charge.         On 16 July 1991, in answer to a summons issued on the application of Newcastle Borough Council, the applicant appeared at the same court for an inquiry to be made into his means and the reasons for his failure to pay the poll tax. Although the applicant was at all relevant times living on income support, the magistrates concluded that his failure to pay the community charge was due to his culpable neglect. They fixed a term of imprisonment of 7 days but postponed its operation against monthly payments of £20 towards the arrears. On 8 October 1991, at the request of the applicant, the court varied the terms of postponement to monthly payments of £10. The applicant failed to maintain these payments and was brought back before the magistrates on 5 May 1992 when a further means inquiry was held and the terms of postponement varied so as to require payments of £26 every two weeks. The applicant was unrepresented on each of these occasions.         Following further failure to maintain payments, the applicant again appeared in court on 4 August 1992, still unemployed and in receipt of income support. He was again unrepresented. He advised the magistrates that his liability to make repayments under a loan agreement was about to come to an end, so that he would in future be able to make payments to clear the remaining poll tax arrears which then stood at approximately £40. The magistrates issued a warrant committing him to prison for 5 days.         The applicant spent several hours in custody before release on bail pursuant to an order made the same day by a High Court judge, who also granted leave to move for judicial review. The application included a claim for damages.         The application for judicial review was heard by the High Court on 12 January 1994. The applicant was represented and had legal aid for these proceedings. Mr. Justice Dyson stated inter alia:   "[The magistrates] failed to have regard to the purpose of the legislation by failing to consider the alternative of deducting the applicant's arrears from his income support. The failure to consider that alternative was, in my view, an unlawful fetter of their discretion. Undoubtedly, Regulation 41(3) of the [1989 Regulations] does require the justices to exercise a discretion...   I grant a declaration that the decision was unlawful, alternatively unreasonable ..."         The judge quashed the magistrates' decision of 4 August 1992. He made a partial award of costs against them (on the limited basis that they should have consented to the application for judicial review before the hearing) but did not address the claim for damages. The applicant has not pursued his claim for damages on the basis of counsel's opinion that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.d.In Application No. 25285/94         From 1988 onwards, after losing his employment, the applicant had a number of self-employed occupations, producing little or no income. He was ineligible for unemployment benefit during periods of inactivity. From about the end of 1992, when a small retail business he had established in February that year ceased trading owing some £30,000, the applicant was dependent on benefit claimed by his wife. In 1991 and 1992, the Stoke-on-Trent Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge.         On 11 August 1992, in answer to a summons issued on the application of Stoke-on-Trent City Council, the applicant appeared at the same court for an inquiry to be made into his means and the reasons for his failure to pay the poll tax. The Council was represented by its recovery manager. The applicant, who was not represented, gave evidence that:         (a)   he set up the retail business, with the aid of a       substantial mortgage, in early 1992. He had previously been       unemployed. His business outgoings amounted to some £2,000 per       month.   He found it difficult to stock the shop adequately.         (b)   he presently drew no income from the business, but hoped       that it would shortly produce sufficient income to enable himself       and his wife each to pay £10 per week towards their poll tax       arrears.         (c)   his wife suffered almost severe deafness and suffered from       severe invalidity as a result of a recent operation. She was in       receipt of disability benefit of some £41 per week. The applicant       was obliged to care for her in addition to managing the business.         On the basis of this evidence, the magistrates concluded that the applicant's failure to pay the community charge was due to his culpable neglect. They rejected the applicant's offer to pay £10 per week towards the arrears and issued a warrant committing him to prison for 7 days.         The applicant spent several hours in custody before release on bail pursuant to an order made on 11 August 1992 by a High Court judge, who also granted leave to move for judicial review. The application included a claim for damages.         The application for judicial review was heard in the High Court on 12 January 1994. The applicant was represented and had legal aid for part of these proceedings. Mr Justice Dyson observed that by committing the applicant to prison on his first appearance, after a "fairly summary" investigation of his means, the magistrates had failed to give consideration to alternative methods of disposal - in particular, the possibility of remitting (i.e. cancelling) all or part of the debt.         The judge held the magistrates' decision of 11 August 1992 "unlawful, alternatively unreasonable" and quashed it. He made a partial award of costs against them (on the limited basis that they should have consented to the application for judicial review before the hearing) but did not address the claim for damages. The applicant has not pursued his claim for damages on the basis of counsel's opinion that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.e.     In Application No. 28192/95         At the relevant time the applicant was on income support and was in poor health.         On 26 May 1993 the local Magistrates' Court committed him to 50 days in prison for failure to pay community charge. He was not legally represented at the committal proceedings.         The applicant served 5 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         On 26 January 1995 the High Court quashed the applicant's committal to prison as the Magistrates' Court had failed to consider possible alternatives to immediate imprisonment, such as to impose a postponed imprisonment order or to order deductions from the applicant's income support.         The Court stated inter alia:   "However wilful the behaviour of the applicant may have been, if on the day of the hearing he indicates that he is, however foolishly, without resources, then the right course for the justices is to consider whether or not to make [an order]. Indeed, in the absence of compelling reasons... one of [the] alternatives must be pursued rather than imprisonment. The case law makes that plain."   f.     In Application No. 28456/95         At the relevant time the applicant was an employee earning about £180 per week, on which he was supporting his wife and two children.         On 3 August 1993 the applicant appeared before the local Magistrates' Court in respect of his arrears of community charge. He made an offer to pay off these arrears at a rate of £ 10 per week. The Court noted that the applicant had failed, on an earlier occasion, to pay £ 10 per week and found that the applicant had culpably neglected to pay the community charge. He was committed to 28 days in prison. The applicant was not legally represented at the committal proceedings.         The applicant served 9 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         On 14 March 1995 the High Court quashed the applicant's committal to prison. The Court stated, inter alia:   "There is no reference here that the Justices [g]ave any consideration to the exercise of their power under Regulation 41(3)(b) to fix a term of imprisonment and postpone the issue of the warrant on condition that £ 10 a week, or such greater amount as the Justices thought reasonable, be paid.   This should have been considered. The implication is that it was not and, accordingly, the decision must be regarded as flawed and has to be quashed, as it now is." 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.         In R. v. Middleton Magistrates ex parte Phillips (1993) Potts J. stated inter alia:   "[A] court which finds a debtor guilty of wilful refusal to pay relevant sum has a discretion. The court is not required to commit such a debtor to a term of imprisonment... Before committing a debtor to prison it is incumbent upon the justices to consider all available alternatives to effect recovery of the sum due...   It is clear... that the justices failed to consider the issue of wilful refusal and the question of appropriate disposal separately as they should have done. It does not follow that, because the applicant had wilfully refused to pay the relevant sum, there was the no alternative other than an immediate sentence of imprisonment. Regulation 41(3)(b) makes that plain...   In my view the approach of the justices ... and the decision to commit this applicant to prison was in the circumstances fundamentally flawed. The decision must be quashed."         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 applicants complain under Article 5 paras. 1 and 5 of the Convention that their detention was unlawful and that they could not receive compensation.         Under Article 6 paras. 1 and 3 (c) of the Convention the applicants submit that legal aid was not available and they were not legally represented before the Magistrates' Courts which committed them to prison.     PROCEEDINGS BEFORE THE COMMISSION         Application No. 25279/94 was introduced on 27 April 1994 and was registered on 23 September 1994. Application No. 25280/94 was introduced on 27 June 1994 and was registered on 23 September 1994. Application No. 25281/94 was introduced on 27 June 1994 and was registered on 23 September 1994. Application No. 25285/94 was introduced on 24 June 1994 and was registered on 23 September 1994. Application No. 28192/95 was introduced on 26 July 1995 and was registered on 9 August 1995. Application No. 28456/95 was introduced on 24 August 1995 and was registered on 6 September 1995.         On 30 November 1994 the Commission communicated to the respondent Government Applications Nos. 25280/94, 25281/94 and 25285/94.         On 28 February 1995 the Commission decided to adjourn the examination of these applications pending the outcome of the case of Benham v. the United Kingdom before the Court.         Application No. 25279/94 was communicated to the respondent Government on 18 October 1995; Application No. 28192/95 - on 12 April 1996; and Application No. 28456/95 - on 15 May 1996. No written observations were requested, pending the outcome of the Benham case.         On 2 July 1996 the Commission invited the respondent Government to submit written observations on the admissibility and merits of all applications.         The Government's written observations were submitted on 8 November 1996. The applicants replied on 10 March 1997, after an extension of the time-limit.     THE LAW   1.     The Commission, having regard to the similarities of the applications, finds it convenient to join them in accordance with Rule 35 of its Rules of Procedure.   2.     The applicants complain under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention that their detention was unlawful and that they could not obtain compensation.         Article 5 (Art. 5) of the Convention, insofar 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:         ...         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."         The Government submit that the present applications bear a close resemblance of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996), the existing factual differences being immaterial as regards the legal outcome. Consequently, in the Government's submission, the applicants' detention was lawful and in accordance with a procedure prescribed by law and, therefore, compatible with Article 5 para. 1 (Art. 5-1) of the Convention. As a result Article 5 para. 5 (Art. 5-5) of the Convention was not applicable.         The applicants reply that the facts in the case of Benham v. the United Kingdom were not sufficiently clear to give rise to a finding of a violation of Article 5 para. 1 (Art. 5-1), the present cases being distinguishable.         The applicants agree that the mere fact that a domestic judge erred in making a detention order will not necessarily render the resulting detention unlawful. However, referring to para. 43 of the Court's judgment in Benham, the applicants state that a detention ordered by a Magistrates' Court will be unlawful where the court acted outside its jurisdiction. Furthermore, it has been accepted that under United Kingdom law a Magistrates' Court would act in excess of jurisdiction if it commits a person to prison without first complying with a statutory condition precedent to its jurisdiction to commit. The question is, therefore, in the applicants' view, whether in their cases there has been a failure on the part of the domestic court to observe a statutory condition precedent.         The applicants recall that the domestic court did not rule directly on the legality of their detention because under United Kingdom law there is no right to compensation for unlawful detention (save in cases of bad faith) and it was therefore irrelevant to distinguish between an unlawful detention and a detention pursuant to an order which was wrong. In these circumstances the Commission should examine the issue itself, using the indications given in the domestic courts' rulings as one element, as the Court did in Benham in paras. 44-46 of that judgment.         The applicants submit that under Regulations 41(2) and 41(3) of the 1989 Regulations the Magistrates' Court is under an obligation to exercise discretion as to the type of measure to be taken against the debtor. Considering alternatives to imprisonment is thus a condition precedent to the magistrates' jurisdiction to commit the debtor to prison. The applicants rely on the text of the statute and also on the Court of Appeal's decision in R. v. Middleton Magistrates ex parte Phillips (1993) (see above, Relevant domestic law and practice).         The applicants allege that in their cases the Magistrates' Courts failed even to consider possible alternatives to imprisonment and that that can be seen from the findings in the High Court's decisions. On this basis their cases are to be distinguished from a situation where a Magistrates' Court embarks on a consideration of alternatives to imprisonment, but errs in its decision. By failing to consider alternatives to imprisonment the Magistrates' Courts in the applicants' cases did not satisfy a condition precedent and as a result acted in excess of jurisdiction.         Therefore, in the applicants' view there have been breaches of Article 5 para. 1 (Art. 5-1) of the Convention. The applicants also submit that paragraph 5 of this provision, consequently, was also violated, there being no possibility to obtain compensation for the unlawful detention.         Having examined the applicants' complaints under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds for declaring it inadmissible has been established.   3.     The applicants complain under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that legal aid was not provided before the Magistrates' Court.         The parties agree that the present case is similar in this respect to the case of Benham v. the United Kingdom and agree that there has been a breach of Article 6 paras. 1 and 3 (Art. 6-1+6-3) taken together.         Having examined these complaints, the Commission finds that they cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and that no other ground for declaring them inadmissible has been established. The Commission considers that the determination of these complaints should depend on an examination of the merits.         For these reasons, the Commission,         DECIDES TO JOIN APPLICATIONS NOS. 25279/94, 25280/94, 25281/94,       25285/94, 28192/95 AND 28456/95;         unanimously,       DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the       merits of the case.         M.F. BUQUICCHIO                              J. LIDDY          Secretary                                 President    to the First Chamber                      of the First Chamber