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. 28455/95                       by Shaun JOHNSON                       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 24 August 1995 by Shaun JOHNSON against the United Kingdom and registered on 6 September 1995 under file No. 28455/95;         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 1967, resides in Haywood, Stafford.   Before the Commission he is represented by Mr. Nick Ryles, a solicitor at Clyde, Chappell & Botham in 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.         At the relevant time the applicant was unemployed.         On 12 April 1994 the applicant appeared before the local Magistrates' Court in respect of his arrears of community charge.   He offered to pay off these arrears at a rate of £ 3 per week.   The Court considered this inappropriate as it would take a long time for the debt to be discharged.   The Court committed the applicant to 90 days in prison for failure to pay community charge.   He was not legally represented at the committal proceedings.         The applicant served 22 days in prison.   He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         On 16 March 1995 the High Court quashed the applicant's committal to prison.   The Court stated, inter alia:        "On [the] evidence it is, in my judgment, wholly plain that there was no proper means inquiry... [T]he means inquiry required by Regulation 41(2) is of great importance because without it the Justices plainly cannot properly arrive at a conclusion as to whether the failure to pay had been due to the debtor's wilful refusal or culpable neglect.   A means inquiry, thus, is at the centre of the enforcement procedure which is laid down by these Regulations.   These Justices did not, in truth, embark upon a proper means inquiry at all.   It follows that their order committing the applicant to prison is entirely vitiated...   I am afraid that the failure of the [Magistrates' Court] was a flagrant one."   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 construction 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.         The applicant also submits that legal aid was not available, he was not legally represented and was not offered legal representation at the committal hearing.   This was contrary to Article 6 of the Convention which guarantees "a right to legal representation at any hearing at which the liberty of the citizen is at stake".     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 24 August 1995 and registered on 6 September 1995.         On 15 May 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.              "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.   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 submits that under Regulation 41(2) of the 1989 Regulations, an inquiry into the defendant's means is clearly a condition precedent to the magistrates' power to commit to prison.   The applicant relies on the text of the statute and also on the Court of Appeal's decision in R. v. Manchester City Magistrates' Court ex parte Davies (see above, Relevant domestic law and practice).         The applicant alleges that in his case the Magistrates' Court entirely failed to conduct the inquiry which the 1989 Regulations prescribe and that that can be seen clearly from the finding of the High Court.   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 grounds 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 this complaint, 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