CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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. 24842/94                Application No. 25276/94 by Anthony REDFERN                      by Albert ASHLEY against the United Kingdom              against the United Kingdom     Application No. 25278/94                Application No. 25282/94 by Darren GRATTON                       by Paul HOGG against the United Kingdom              against the United Kingdom     Application No. 25284/94                Application No. 26063/94 by Daryl MEIKLEHAM                      by Adrian GREEN against the United Kingdom              against the United Kingdom             The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 26 October 1994, 31 March 1994, 24 May 1994, 7 July 1994, 12 July 1994 and 5 December 1994 by Anthony REDFERN, Albert ASHLEY, Darren GRATTON, Paul HOGG, Daryl MEIKLEHAM and Adrian GREEN against the United Kingdom and registered on 17 November 1994, 23 September 1994, 23 September 1994, 23 September 1994, 23 September 1994 and 21 December 1994 under files Nos. 24842/94, 25276/94, 25278/94, 25282/94, 25284/94 and 26063/94, respectively;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicants are United Kingdom citizens.   At the pertinent time they were aged under 21.   Before the Commission they are represented by Clyde, Chappell & Botham, solicitors practising in Stoke-on-Trent.         The facts, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the cases   a.     Application No. 24842/94         On 16 February 1993 the applicant was committed by the Alfreton Magistrates' Court to 90 days in prison for failure to pay community charge (poll tax).   He was not legally represented at the committal proceedings and was not informed of any right to legal representation. At the time the applicant was unemployed.         The applicant served 16 days in a young offender's centre until 3 March 1993 when he applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         In the judicial review proceedings the magistrates agreed to a consent order.   The grounds therefor, as agreed upon between the applicant and the Alfreton Justices, were that the imprisonment order had been delivered without proper regard to:   1) the purpose of imprisonment in such cases, namely extracting the liability;   2) the alternatives to imprisonment in the circumstances of the case, and in particular the possibility to obtain payment through attachment of income support;   3) the provisions of Regulation 42(7) of the Community Charges (Administration and Enforcement) Regulations 1989 ("the 1989 Regulations") (see below Relevant domestic law and practice).         On 9 August 1994 the High Court quashed the order of 16 February 1993 for the applicant's committal to prison.   b.     Application No. 25276/94         The applicant has been unemployed since leaving the Government Youth Training Scheme in 1990.   In 1992, the Newcastle-under-Lyme Magistrates' Court ordered the issue of liability orders in respect of the applicant's unpaid community charge (poll tax).   These orders were made in respect of the full amount of community charge set by Newcastle-under-Lyme Borough Council for the relevant years, the Council having failed to credit the applicant with community charge benefit despite being aware that he had been in receipt of income support.         On 21 January 1993 the applicant was brought before the same court, on a warrant issued on the application of the Council, 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 he lived on income support and was under 21 years of age. However, the magistrates concluded that his failure to pay the community charge was due to his wilful refusal.   They rejected the applicant's offer to pay £5 per week towards the arrears by way of direct deduction from his benefit and issued a warrant committing him to prison for 28 days.   The Council was represented by its recovery manager.         The applicant spent one day in custody before release on bail pursuant to an order made on 22 January 1993 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 12 October 1993.   The applicant was represented and had legal aid for these proceedings.   Mr Justice Laws accepted the applicant's argument that the magistrates should only have imprisoned him if the court was of the opinion that no other method of dealing with him was appropriate and that in such a case, they were required to state in open court why they thought that no other method of dealing with him was appropriate.   The magistrates were aware that the applicant was aged under 21 at the date of the hearing, but failed to state in open court and in the warrant, as required by the legislation, their reasons for rejecting alternatives to imprisonment.         The judge also 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.   By failing to address alternatives to immediate imprisonment - in particular, the possibility of imposing a suspended term of imprisonment against the weekly payments offered by the applicant, or alternatively direct weekly deductions from income support - the magistrates had not observed their statutory responsibilities.         The judge noted that the case went to "an important aspect of the Magistrates' Court's jurisdiction".   He declared the decision of 21 January 1993 unlawful and quashed it.   He declined to award costs against either the magistrates or the Council and did not address the claim for damages.   The applicant has not pursued his claim for damages on the basis of counsel's opinion, for which he had legal aid, that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.   c.     Application No. 25278/94         On 8 February 1993, after the conclusion of criminal proceedings against the applicant at Alfreton Magistrates' Court and following the departure of his solicitor, the applicant was called back into court to answer an application by the local authority for an inquiry to be made into his means and the reasons for his failure to pay the community charge.         The applicant had received no prior notice of the hearing and was not advised of any possibility of obtaining legal representation.   The applicant informed the magistrates that for most of the period during which he had been liable for the poll tax, he had been in receipt of income support; however, the local authority had failed to credit him with community charge benefit.   He had variously lived in bail hostels or with his mother and had spent some time sleeping rough.         At the time of the hearing the applicant was living on income support.   He made an offer to pay the arrears at the rate of £5 per week and proposed in the alternative that the arrears be recovered by direct deductions from his benefit.   The magistrates rejected these proposals and issued a warrant committing the applicant to prison for 90 days, the maximum permitted by law.         On 23 February 1993, a High Court judge granted the applicant bail and leave to move for judicial review.   A claim for damages was attached to the application.         The application for judicial review was heard by the High Court on 25 November 1993.   The applicant was represented and had legal aid for these proceedings.   Mr Justice MacPherson recalled that the High Court had in similar cases emphasised that imprisonment, or its threat, were to be used as means of extracting payment and not as a punishment. Immediate imprisonment of a person of negligible means would merely extinguish the debt rather than secure its payment.   Whatever the magistrates' view of the offer of £5 per week, their failure to entertain deduction from income support as a viable alterative to imprisonment constituted a "fundamental flaw" in their decision, which was quashed accordingly.         The judge considered the magistrates had failed to consider, as they should have, the "viable alternative of the council accepting an order of attachment to income support".   In connection with costs, he considered that they had erred, but not "flagrantly or outrageously". He refused to award costs against the magistrates and declined to consider the claim for damages.   In his view, fresh proceedings for damages were "very unlikely" to succeed.   The judge found it unnecessary to consider a further argument that the proceedings might be flawed because the applicant was under 21 when he was sentenced.   d.     Application No. 25282/94         In 1991, Grimsby Magistrates' Court ordered the issue of liability orders in respect of the applicant's unpaid community charge (poll tax).         On 26 March 1993, in answer to a summons issued on the application of Great Grimsby 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.   On the basis of this inquiry, the magistrates concluded that the applicant's failure to pay the community charge was due to his culpable neglect.   They fixed two concurrent terms of imprisonment of 14 days (one term for each financial year's liability) but postponed the issue of warrants against payments of £10 every two weeks towards the arrears.         The applicant failed to maintain these payments and returned to court on 20 October 1993 on the Council's further application.   He gave the following evidence:         (a) he was living on income support of some £69 every two weeks;         (b) his family had recently broken up (his mother had left);         (c) he had until recently paid rent of £25 per week to his       brother, but had not been entitled to housing benefit in respect       of this liability. He had now moved into new accommodation and       would receive benefit to cover his rent;         (d) he had found employment which would commence a few days after       the hearing and would therefore be able to make increased       payments towards the arrears.         The magistrates issued warrants committing the applicant to prison for 12 days in respect of each year's liability.   At neither hearing was the applicant advised of the possibility of seeking legal representation.   The Council was represented by its recovery manager.         The applicant spent eight days in custody before release on bail pursuant to an order made on 28 October 1993 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 30 June 1994.   The applicant was represented and had legal aid for these proceedings.   Mr Justice MacPherson accepted that, although the applicant was aged under 21 at the date of the hearing, the magistrates had failed to state their reasons for rejecting alternatives to imprisonment in open court, as required by the legislation.   The judge also observed that the right course was to do everything possible to obtain payment of the money before "the big stick of imprisonment is wielded".   In the circumstances, the magistrates' failure to address alternatives to immediate imprisonment was a "fatal flaw" in their decision.         The judge declared the magistrates' decision of 20 October 1993 unlawful and quashed it.   However, he considered that the magistrates' conduct was not so grievous as to justify an award of costs against them.   The judge 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.   e.     Application No. 25284/94         On 1 October 1991 and 16 January 1992, the Leeds Magistrates' Court ordered the issue of liability orders in respect of the applicant's unpaid community charge.         On 3 December 1992, in answer to a summons issued on the application of Leeds City 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 dismissed from employment that day as a result       of taking the time off to attend court and had thus lost his sole       source of income;         (b) he was now dependent on his wife, who was in low-paid full       time employment.         On the basis of this evidence, the magistrates concluded that the applicant's failure to pay the community charge was due to his wilful refusal or culpable neglect or both.   They rejected an offer by the applicant, made after discussion with his wife, to pay £4 per week towards the arrears and issued a warrant committing the applicant to prison for 42 days.   At no time was the applicant advised of the possibility of seeking legal representation.   The Council was represented by its recovery manager.         The applicant spent eleven days in custody before release on bail pursuant to an order made on 14 December 1992 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 14 January 1994.   The applicant was represented in these proceedings although was no longer financially eligible for legal aid.   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 neither as a punishment nor, as in this case, as a deterrent in the light of what the magistrates considered "politically orchestrated" non-payment of the poll tax.   The magistrates had to give adequate consideration to an alternative to immediate imprisonment - in particular, the possibility of accepting the offer of £4 a week and imposing a suspended term of imprisonment against the applicant's offer of periodical payments.   The judge also pointed out that the magistrates could not, in a criminal case, have ordered imprisonment as a deterrent to others.         The judge accepted that the magistrates were aware that the applicant was aged under 21 at the date of the hearing, but had failed to state in open court, as required by the Criminal Justice Act 1982, their reasons for rejecting alternatives to imprisonment.         The judge declared the magistrates' decision of 3 December 1992 unlawful and quashed it.   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.   f.     Application No. 26063/94         At the relevant time the applicant was in low paid employment.         On 3 March 1993 the local Magistrates' Court committed the applicant to 28 days in prison for failure to pay community charge. He was not legally represented at the committal proceedings.         The applicant served 3 days in prison.   He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.         As a result of the imprisonment the applicant lost his job.         In the judicial review proceedings the Magistrates' Court agreed to sign a consent order on the grounds that the decision to commit to prison had been unlawful.   On 9 June 1994 the High Court quashed the applicant's committal to prison.         The High Court 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   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)     Section 1 (5) of the Criminal Justice Act 1982, which is applied to community charge proceedings according to Regulation 42 (7) of the 1989 Regulations, prohibits a court from ordering the detention of a person under 21 years of age unless of the opinion that no other method of dealing with him is appropriate; Section 1 (5A) requires a magistrates' court to state in open court and in the warrant of commitment its reasons for reaching such an opinion.         On 12 October 1993 in the case of Ashley the High Court dealt with an application for judicial review based on the failure of the magistrates to comply with their statutory responsibility under Regulation 42 (7).   The High Court made a declaration that the magistrates' decision was unlawful.   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 applicants complain under Article 5 para. 1 of the Convention that their detention was unlawful and under Article 5 para. 5 that they could not receive compensation.         The applicants complain under Article 6 of the Convention   that legal aid was not available before the Magistrates' Court when they were committed to prison.     PROCEEDINGS BEFORE THE COMMISSION         Application No. 24842/94 was introduced on 26 October 1994 and was registered on 17 November 1994.   Application No. 25276/94 was introduced on 31 March 1994 and was registered on 23 September 1994. Application No. 25278/94 was introduced on 24 May 1994 and was registered on 23 September 1994. Application No. 25282/94 was introduced on 7 July 1994 and was registered on 23 September 1994. Application No. 25284/94 was introduced on 12 July 1994 and was registered on 23 September 1994. Application No. 26063/94 was introduced on 5 December 1994 and was registered on 21 December 1994.         On 6 December 1994 the Commission communicated to the respondent Government Applications Nos. 25276/94, 25278/94, 25282/94 and 25284/94.         On 28 February 1995 the Commission decided to adjourn the examination of these applications pending the outcome of the case of Benham v. the United Kingdom before the Court.         Application No. 24842/94 was communicated to the respondent Government on 18 October 1995, and Application No. 26063/94 on 28 February 1996. No written observations were requested, 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 parties have not submitted written observations.     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 under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention that their detention was unlawful and that they 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 parties have not submitted written observations on the admissibility and merits of the cases.         Having examined the complaints under Article 5 (Art. 5) of the Convention, 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.   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.         Article 6 paras. 1 and 3 (Art. 6-1, 6-3), insofar as relevant, provide as follows:         "1.   In the determination of his civil rights and obligations       ... everyone is entitled to a fair ... hearing ...         ...         3.    Everyone charged with a criminal offence has the following       minimum rights:       ...      c.     ... if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ..."         The parties have not submitted written observations on the admissibility and merits of the cases.         Having examined the complaints under Article 6 (Art. 6) of the Convention, 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. 24842/94, 25276/94, 25278/94,       25282/94, 25284/94 & 26063/94;         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