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. 28787/95                       by Barry WOOLAGHAN                       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 1 June 1995 by Barry WOOLAGHAN against the United Kingdom and registered on 28 September 1995 under file No. 28787/95;         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 1969, resides in Accrington.   Before the Commission he is represented by Ms. Deborah Still, a solicitor of Rochdale Law Centre, Rochdale, Lancashire.   A.     Particular circumstances of the case         The facts of the case as submitted by the parties may be summarised as follows.         The applicant became liable to pay community charge (poll tax) on 31 March 1990.         On 11 February 1992 the Hyndburn Magistrates' Court committed the applicant to 40 days in prison, suspended on term of payment of £ 6 per fortnight, for his failure to pay community charge.         The applicant failed to keep up with these payments and appeared again before the Magistrates' Court on 18 April 1992.   On that day the committal order was again suspended, this time on condition that the applicant pay £ 50 immediately and thereafter £ 10 per week.         The applicant fell behind with his payments.   In August 1992 the Hyndburn Borough Council, the local authority administering the collection of the community charge, sent by ordinary post a letter to the applicant informing him that a hearing was scheduled for 25 August 1992 when the question of issuing a warrant of committal to prison against him would be considered.   The letter was sent to the applicant's last known address.   However, it later transpired that he had in fact left this address.         On that date the applicant did not appear before the Magistrates' Court.   The Magistrates issued a warrant of committal to prison for 29 days.         On 21 July 1993 the applicant attended the Hyndburn Borough Council offices and was informed that there was a warrant for his arrest.   He consulted a solicitor and on 26 July 1993 he attended the Hyndburn Magistrates' Court for a hearing concerning the payment of a fine.   There the applicant surrendered to the warrant for his arrest in respect of the unpaid community charge.   At this hearing the applicant was not allowed to make any submissions as regards this warrant and his solicitor did not represent him in this matter.         The applicant served 10 days in prison.   On 6 August 1993 his application for release on bail and for leave to apply for judicial review before the High Court were granted.         On 2 December 1994 the High Court quashed the order of 25 August 1992 for the applicant's committal to prison.   The Court noted that the notice for the hearing in August 1992 had been sent to the applicant's last known address by ordinary post, that the applicant had in fact left this address, and that he stated that he had not received the notice.   The Court went on by saying: "        "Experience suggests that an excuse of that kind may be more often false than true; but details in the applicant's affidavit suggest that his assertion that he never saw the letter is likely to be true.   It is impossible to say that it has been shown that the applicant knew of the hearing of 25 August 1992 ...        There being no sufficient proof of service, subject to [the question of the applicant's alleged obligation to notify his change of address under Regulation 3], the applicant is entitled to succeed and the order of certiorari must go to quash the committal warrant...        The approach of the Magistrates ... seems to have been that the applicant had a duty to inform the Local Authority of his change of address, and since he had failed in that respect it was not open to him to complain ... that he had not been served...        This is not a case for applying the presumption that every man knows the law ... If it were possible to rely upon Regulation 3, there   would have, in my judgment, to be material ... that the [community] charge payer had known of that duty, so that it might be then said that he could not complain of non- service of the notice .... There is no evidence before me in this case, despite the affidavit of Mr. Marsden, to lead me to conclude that the applicant knew of his duty.   Accordingly, the basis upon which the Magistrates appear to have relied, before proceeding in the matter, is unsound.   That is enough to dispose of this case...        Finally I make a comment about the practice of sending a notice of a hearing by ordinary post.   Post can go astray. Perhaps in some areas of litigation it is more often said by those who should have received post that they have not received it, than, in truth, is the case...   The difficulty for the magistrates is, that ... they really have no way of telling whether [the notice has been received].   It seems, therefore, to follow that where there has been service by ordinary post, careful consideration would have to be given to the particular circumstances of the charge payer, before, if ever, concluding that the notice must have come into his hands."   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)     Regulation 3 para. 2 of the 1989 Regulations reads as follows:        "A person who is shown in a charging authority's register as subject to a community charge of the authority and who has reason to believe that the item concerned contains an error or is not complete or up-to-date shall inform the appropriate registration accordingly".         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 as the order of 25 August 1992 was made by the Magistrates in excess of their jurisdiction, without proof that the applicant had been informed of the date of the hearing.   He also complains under Article 5 para. 5 of the Convention of the lack of compensation for the unlawful detention.         The applicant further submits that contrary to Article 6 of the Convention legal aid was not available before the Magistrates' Court when it issued the warrant for the applicant's committal to prison for 29 days.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 1 June 1995 and registered on 28 September 1995.         On 26 June 1996 the Commission decided to communicate the application to the respondent Government.         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 4 March 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, 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 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 11 February 1992, at a hearing at which the applicant was present.   On 25 August 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 25 August 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 should have notified the local community charge authority of his change of address as required by Regulation 3 of the 1989 Regulations.   The Government concede that not all persons liable to pay community charge would have been aware of this provision.   However, and despite what was said in the High Court's judgment in the applicant's case, it is hard to see, in the Government's submission, what is the purpose of having such a statutory provision, unless it is intended that it should be complied with.   The applicant has not done so and cannot complain of a situation resulting from his own failure to abide by the law.         Moreover, in his unopposed application for judicial review the applicant had to satisfy the High Court that there was sufficient doubt as to whether the Magistrates' Court had been satisfied that he had received notice of the hearing of 25 August 1992, to warrant an order of certiorari quashing his committal to prison.   For purposes of the application before the Commission, in the Government's submission, the burden of proof is higher for the Commission to find that the United Kingdom is in breach of a provision of the Convention.   The applicant has to show, in their view, that on the available evidence the Magistrates' Court plainly could not have been satisfied that the applicant had received a notice of the hearing.         The Government submit that this is not the case here.   Thus, the only evidence available is the affidavit of Mr. Marsden, a clerk at the Magistrates' Court, who stated that the Court was satisfied that notice had been given, "notice having been posted to the address at which [the applicant] was registered as living by first class post."   Also, the High Court stated that the approach of the Magistrates' Court had been only "unsound".         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, 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 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).         As regards the allegation that the applicant cannot complain of non-service of the notice as he did not inform the Local Authority of his change of address, the applicant refers to the judgment of the High Court in his case, where it was stated that this could be so only if there had been evidence that he had known of his duty under Regulation 3 to announce his change of address.   No such evidence exists and, indeed, there is no claim on the part of the Government that it does.         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 February 1992.   The warrant for the applicant's arrest was issued on 25 August 1992, when he was not present.   As regards the Government's submission of the necessary standard of proof, the applicant submits that the only issue was whether the Magistrates Court inquired into the receipt of the notice of the hearing and that this was plainly not the case.   As the judge observed, the "sounder and surer practice" would be to use registered mail.         Consequently the applicant alleges that on 25 August 1992 the Magistrates' Court acted 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