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. 25283/94                Application No. 25690/94 by M. C.                                by John DEARY against the United Kingdom              against the United Kingdom                            Application No. 28457/95                        by Doreen CLARK                        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 12 July 1994, 26 October 1994 and 24 August 1995 by M. C., John DEARY and Doreen CLARK against the United Kingdom and registered on 23 September 1994, 17 November 1994 and 6 September 1995 under files Nos. 25283/94, 25690/94 and 28457/95 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 1994 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.     Application No. 25283/94         In October 1990 and August 1991, the Newcastle-under-Lyme Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge (poll tax).         On 8 September 1992, 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. The applicant, who was not represented, gave evidence that:         (a) he had been made redundant from his last employment in 1989;         (b) since then he had lived on Income Support of some £42 per       week;         (b) he paid his father £40 per week for board and lodging and the       balance of his income went to maintain a life insurance policy       which he had taken out while employed.         However, the magistrates considered that the applicant in fact had disposable income and ought to have made an offer of payment. They concluded that the applicant's failure to pay the community charge was due to his wilful refusal and issued a warrant committing him to prison for 30 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 in the High Court on 13 January 1994.   The applicant was represented and had legal aid for these proceedings.   Mr Justice Dyson observed that the purpose of the community charge legislation was to secure the collection of local taxes; the High Court had in similar cases emphasised that imprisonment was to be used as means of extracting payment and not as a punishment. He pointed out, however, that the High Court had in one cited case said that the extraction of payment was not the sole purpose of imprisonment. By failing to give adequate consideration to alternatives to immediate imprisonment - in particular, the imposition of a suspended term of imprisonment - the magistrates failed to have regard to the purpose of the legislation.   The decision to pass an immediate custodial sentence of the first occasion was "plainly perverse and wrong".         The judge quashed the magistrates' decision of 8 September 1992 and found the decision to commit unlawful.   He remitted the matter to the magistrates' court for reconsideration.   He made a partial award of costs against the magistrates (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.   b.     Application No. 25690/94         At the relevant time the applicant was a hospital employee earning £130 per week, on which he was supporting his family.         On 4 November 1993 the local Magistrates' Court committed the applicant to 28 days in prison for failure to pay community charge. His offer to clear his community charge arrears at the rate of £10 per month was declined as it would have taken too long to discharge the obligation.   The applicant 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 7 June 1994 the motion for judicial review was allowed and the Magistrates' committal order quashed.   The judgment stated, inter alia:        "When the justices considered the offer of £10 per month they ought to have considered whether this was a reasonable amount, bearing in mind the applicant's means, or whether in their judgment he had means to pay more.   Since the purpose of their powers was to secure the payment of the debt, it was an irrelevant consideration as to how long it would take to pay ... [T]he approach of the justices was flawed as a matter of law and certiorari should lie. ... [T]he purpose of the powers of the court under Regulation 41 are not powers of punishment for past misdeeds, but powers to ensure future payment of past liabilities.   Accordingly I have no hesitation in determining that the justices' approach on this occasion was flawed."   c.     Application No. 28457/95         At the relevant time the applicant was unemployed, had no income and was dependent on her husband, who was in full time employment.         On 30 November 1994 the local Magistrates' Court committed the applicant to 14 days in prison for failure to pay community charge. At that time the applicant was ill.   She informed the Court about this by presenting a doctor's letter.   The applicant was not legally represented at the committal proceedings.         The applicant served 2 days in prison.   She applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         In the judicial review proceedings all parties agreed to settle the matter.   On 16 March 1995 the High Court delivered a consent order quashing the applicant's committal to prison.   The grounds of the consent order read, inter alia:        "The justices were unreasonable in that they failed to have proper regard to the purpose of the imprisonment in such cases, in that prison should be used as a means of coercing payment rather than punishment, in particular having regard to the inability of the applicant to discharge her debt."   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 ex parte Mould (1992), Kennedy LJ stated inter alia:        "The power to commit to prison which is to be found in [Regulation] 41 is plainly intended to be used as a weapon to extract payment rather than to punish... If a debtor currently has no money and no real prospects of obtaining any, custody can only punish and it will stand in the way of any subsequent attempt to recover the sum which is owed."         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 that their detention was contrary to Article 5 para. 1 of the Convention and that, in breach of para. 5 of this provision, 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. 25283/94 was introduced on 12 July 1994 and was registered on 23 September 1994. Application No. 25690/94 was introduced on 26 October 1994 and was registered on 17 November 1994. Application No. 28457/95 was introduced on 24 August 1995 and was registered on 6 September 1995.         On 30 November 1994 the Commission communicated to the respondent Government Application No. 25283/94.         On 28 February 1995 the Commission decided to adjourn the examination of this application pending the outcome of the case of Benham v. the United Kingdom before the Court.         On 28 February 1996 and on 15 May 1996 the Commission decided to communicate to the respondent Government Application No. 25690/94 and Application No. 28457/95 respectively, without requesting written observations, 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 that their detention was contrary to Article 5 para. 1 (Art. 5-1) of the Convention and that, in breach of para. 5 of this provision, they could not receive 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.         As regards Application No. 28457/95 the Government further state that by agreeing to sign a consent order the magistrates only recognised, in the light of subsequent decisions of the High Court, that their own earlier decision was wrong and would be reversed on appeal.   This, however, in no way affects the lawfulness of this earlier decision.         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 orders for their detention were lawful under domestic law as the magistrates did not act in excess of jurisdiction.   The applicant in Application No. 28457/95 further agrees with the Government that the use of the "consent order procedure" in her case does not affect the issues before the Commission.         However, the applicants allege that there have been breaches of Article 5 para. 1 (Art. 5-1) in that their detention did not fall within any of the categories of permitted deprivation of liberty in paras. 1(a) to 1(f) of this provision.         Their detention would have normally fallen under para. 1(b) of Article 5 (Art. 5-1-b) of the Convention, as imprisonment for failure to pay community charge is intended to secure the fulfilment of the obligation to pay the charge.   However, the High Court overturned the imprisonment warrants in the applicants' cases precisely because, on the facts, there was no prospect that immediate imprisonment would have a coercive effect.   Accordingly, the detention was purely punitive in character and, therefore, could not have been imposed in order "to secure the fulfilment of [an] obligation" within the meaning of Article 5 para. 1(b) (Art. 5-1-b) of the Convention.         Therefore, in the applicants' view there have been breaches of Article 5 para. 1 (Art. 5-1) of the Convention.   Paragraph 5 of this provision, consequently, was also violated, there being no possibility to obtain compensation for the detention which was contrary to para. 1.         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 have 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. 25283/94, 25690/94 & 28457/95;         unanimously,       DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the       merits of the cases.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber