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. 28190/95                       by Ian POOLE                       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 26 July 1995 by Ian POOLE against the United Kingdom and registered on 9 August 1995 under file No. 28190/95;         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 1965, resides in Bristol.   Before the Commission he is represented by Clyde, Chappell and Botham, solicitors of Stoke-On-Trent.         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 1 April 1990.   On an unspecified date he became liable to pay also another type of tax, the non-domestic rates.         Between 1986 and 1993 the applicant was a self-employed mechanic. At an unspecified time in 1993 his business failed, his house was repossessed and he incurred debts of some £ 20,000.   Since then he lives on income support.         On 15 November 1993 the North Avon Magistrates' Court committed the applicant to three months in prison for failure to pay both community charge and non-domestic rates.   The applicant was not legally represented at the committal proceedings.         The applicant served 10 days in prison.   He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         The application for judicial review was not opposed by the local community charge authority and the Magistrates' Court agreed to sign a consent order.   On 14 March 1995 the High Court quashed the applicant's committal to prison.   The grounds therefor, as agreed upon between the applicant and the North Avon Magistrates' Court, were that: 1) the Justices acted unlawfully in committing the applicant to prison in respect of his non-domestic rates as "there had been no attempt to levy distress, such distress being a condition precedent to imprisonment";   2) the imprisonment order had been delivered without proper regard to the fact that the applicant had significant debts and; 3) it had been unreasonable for the Justices to commit the applicant to the maximum period of imprisonment in the light of the subsequent case-law.         The parties agreed that no order for costs should be made.   The High Court accordingly made no order for costs except for the taxation of the applicant's legal aid costs in the proceedings before it.   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. Highbury Corner Magistrates Court ex parte Watkins (1992) Henry J. said:        "Before the court gets to the stage of inquiring into the debtor's means, the court must first be satisfied as to their jurisdiction under Regulation 41 and as to the precise amount still outstanding.   Under Regulation 41 they must be satisfied, first, that the charging authority has sought to levy an amount by distress and that it appears to the authority that insufficient goods of the debtor can be found on which levy the amount, and they must also be satisfied as to the amount outstanding i.e. whether anything and if so how much has been paid since the liability order was made.   Both of these things require to be proved."         In R. v. Bradford Justices ex parte Delaney (1994) Mann LJ said:        "No evidence was given [in the magistrates court] that the charging authority had sought to levy an amount by distress, and that it appeared to them that no goods of the debtor could be found, or that insufficient goods could be found.   As it seems to me, upon a contruction of the Regulation, the demonstration of those matters is a condition precedent to the justices proceeding with their means inquiry.   The condition precedent was not satisfied, and thus what followed was ineffective."         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 under Article 5 para. 1 of the Convention that his detention was unlawful.   He 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, he was not legally represented and was not offered legal representation at the committal hearing.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 July 1995 and registered on 9 August 1995.         On 12 April 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.     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 bears 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.   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 applicant's 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 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, using the indications given in the domestic court's ruling as one element, as the Court did in Benham in paras. 44 - 46 of that judgment.         The applicant further submits that under the Community Charge (Administration and Enforcement) Regulations 1989, commitment to prison cannot lawfully be ordered unless the local community charge authority have, inter alia, sought without success to "levy distress" by seizing the debtor's property.   Moreover, there is clear authority in United Kingdom law that the Magistrates' Court is under a duty to inquire whether a prior attempt has been made by the local community charge authority to "levy distress".   Such an inquiry is a condition precedent to its jurisdiction to commit to prison.   The applicant relies on the cases of   R. v. Highbury Corner Magistrates Court ex parte Watkins (1992) and R. v. Bradford Justices ex parte Delaney (1994) (see above, Relevant domestic law and practice).         The applicant alleges that this condition precedent was not fulfilled in his case, 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.         The applicant finally agrees with the Government that the use of the "consent order procedure" in his case does not affect the issues before the Commission.         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