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. 28048/95                       by Alan Thomas BEATTIE                       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                  L. LOUCAIDES                  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 application introduced on 14 July 1995 by Alan Thomas BEATTIE against the United Kingdom and registered on 28 July 1995 under file No. 28048/95;         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       applicant on 10 March 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a United Kingdom citizen born in 1971, resides in Preston.   He is currently unemployed.   Before the Commission the applicant is represented by Ms. Deborah Still, a solicitor of   Rochdale Law Centre, Rochdale, Lancashire.         The facts of the case as submitted by the parties may be summarised as follows.   a.     Particular circumstances of the case         The applicant became liable to pay community charge (poll tax) on 31 March 1990.         On 16 September 1992, at a hearing before the local Magistrates' Court, the Preston Borough Council sought to commit the applicant to prison as he had not made any payments pursuant to the community charge liability orders issued against him.   The applicant was present at the hearing and told the Court that he was in receipt of income support. The Court issued a suspended order of 28 days in prison, the suspension being on condition that the applicant pay £2 per week.         The applicant was not legally represented at the hearing.         The applicant failed to make any payments.   Upon the request of the local Borough Council the Preston Magistrates' Court decided to hold a hearing on the matter on 2 December 1992.   The purpose of the hearing was to establish the reasons for the applicant's failure to pay.         On 2 December 1992 the applicant did not appear before the Court. The Court committed the applicant to prison for 28 days on the basis, apparently, that his failure to pay was due to his culpable neglect.         The applicant was arrested on 26 February 1993 and served 6 days in prison.   On 4 March 1993 he was released pursuant to an order granting   his solicitors' application for release on bail and for leave to apply for judicial review.   The application stated inter alia that the Magistrates' Court had failed to consider the opportunity for direct deductions from the applicant's income support.         In the judicial review proceedings, Mr. L., an officer at the local Borough Council, stated in his affidavit that a notice for the hearing of 2 December 1992 had been sent to the applicant.   Another affidavit, of a trainee solicitor, stated inter alia:         "Mr. L also advised me that a letter was sent out by recorded delivery to the applicant's address..., inviting him to attend the Magistrates' Court on the 2nd of December 1992 ... The applicant advised me ... that he had not received that letter but his mother recalled a recorded delivery letter arriving and handing the same to him."         The affidavit of Frederick Wood Justice of the Peace, who was the Chairman of the Bench at the hearing on 2 December 1992, made no mention of the issue whether the Magistrates' Court, when committing the applicant to prison, was satisfied or not that he had received a notice for the hearing.         The application for judicial review was not opposed by the local community charge authority and the Magistrates' Court agreed to sign a consent order.   Consent was reached apparently on the basis of a reduction in the total amount owed by the applicant, together with an order for the making of deductions from the applicant's income support. On 18 January 1995 the High Court quashed the applicant's committal to prison.   b.     Relevant domestic law and practice   a)     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.   b)     As regards the legal consequences when a debtor has not received proper notice of a hearing before a Magistrates' Court, in R. v. Northhampton Justices ex parte Newell (1992), Lord Justice Scott stated:      "... it goes without saying that it would be essential in, I would think, every case that the debtor be given proper notice of the time and place of the proposed application.   If that were not done, the hearing would, I think, be fatally flawed.   It is to be expected that, if the debtor were not present, the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor.        But if a debtor, having received proper notice, chooses not to attend, that is his affair, and for the magistrates to proceed in his absence cannot, in my opinion, possibly be represented as being in breach of the requirements of fairness or of natural justice".   c)     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 under Article 5 para. 1 of the Convention that his detention was unlawful and not in accordance with a procedure prescribed by law.   He states that on 2 December 1992 the Magistrates ordered the applicant's imprisonment in his absence and without satisfying themselves that he had received a notice for the hearing. Thus the applicant was not protected from arbitrariness.   The applicant also complains under Article 5 para. 5 of the Convention of the lack of compensation for the unlawful detention.         Under Article 6 of the Convention the applicant submits that legal aid was not available and that he was not legally represented at the committal hearing on 16 September 1992.   Legal aid would not have been available either for the hearing of 2 December 1992.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 July 1995 and registered on 28 July 1995.         On 28 February 1996 the Commission decided to communicate the application to the respondent Government without asking for written observations pending the outcome of the case of Benham v. the United Kingdom before the Court.   On 2 July 1996 the Commission invited the respondent Government to submit written observation on the admissibility and merits of the application.         The Government's written observations were submitted on 8 November 1996.   The applicant replied on 10 March 1997, after an extension of the time-limit.         On 15 April 1997 the Commission granted legal aid to the applicant.   THE LAW   1.     The applicant complains under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention that his detention was unlawful and that he could not obtain compensation.         Article 5 (Art. 5) of the Convention, insofar as relevant, reads 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 application resembles, in some respects, the case of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996).         The Government state that under United Kingdom law the decision to imprison the applicant was in fact taken on 16 September 1992, at a hearing at which the applicant was present.   On 2 December 1992, when the applicant was not present, the Magistrates' Court merely decided to execute the warrant of commitment to prison.   Furthermore, it follows from Section 11(3) of the Magistrates' Courts Act (1980), as in force at the relevant time, and Section 150(1) of this Act that on 2 December 1992 the Magistrates' Court was free to proceed in the applicant's absence when deciding to execute the commitment warrant.         In any event, the Government submit that the applicant's statement that he had not received a notice of the hearing is not supported by any evidence.   At the same time there exists evidence to the contrary, contained in the affidavits of Mr. L and of a trainee solicitor.   In these circumstances, as the applicant was duly informed of the hearing, it was lawful to proceed on 2 December 1992 in his absence.         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.         The Government state that in any event, based on paras. 46 and 47 of the judgment in Benham v. the United Kingdom (Eur. Court HR., loc. cit.), the applicant's detention was in conformity 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 applicant replies 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 case being distinguishable.         The applicant agrees that the mere fact that a domestic court 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 applicant states 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 applicant's view, whether in his case there has been a failure on the part of the domestic court to observe a statutory condition precedent.         The applicant recalls that the domestic court did not rule directly on the legality of his 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 as the Court did in Benham in paras. 44 - 46 of that judgment, a qualification arising from the fact that in the present case there was no ruling of a domestic court which can be relied upon (as neither the grounds for the application, nor the grounds for the consent order were based upon the issue now claimed to have made the detention unlawful).         The applicant agrees with the Government that the use of the "consent order procedure" in his case does not affect the issues before the Commission.         The applicant submits that in his case the Magistrates' Court failed to inquire whether he had received the requisite notice of the hearing of 25 August 1992.   There was evidence that the Court was satisfied that the notice had been posted.   However, this was not the issue which the Magistrates' Court was required to investigate.   What it had to investigate as a condition precedent to its jurisdiction to imprison him, was whether the applicant had received notice of the hearing.   This requirement was clearly established in R. v. Northhampton Justices ex parte Newell (1992) (see above Relevant domestic law and practice).         The applicant answers the remaining arguments of the Government by stating that Section 11(3) of the Magistrates' Court Act has no relevance in the case, as illustrated by the relevant case-law. Furthermore, it was incorrect to state that the decision to imprison had been taken at the hearing in September 1992.   The warrant for the applicant's arrest was issued on 2 December 1992, when he was not present.         Consequently the applicant alleges that the Magistrates' Court in his case acted on 2 December 1992 in excess of jurisdiction, and that therefore there has been a breach 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 unlawful detention.         Having examined the applicant's 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 ground for declaring it inadmissible has been established.   2.     The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that legal aid was not available, he was not legally represented and was not offered legal representation at the committal hearing.         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 the applicant's complaint under Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c) of the Convention, the Commission finds that it   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 it inadmissible has been established. The Commission considers that the determination of this complaint should depend on an examination of the merits.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber