CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 octobre 1999

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text-align:justify } .s2B328206 { width:22.63pt; display:inline-block } .s92F621BF { width:106.78pt; display:inline-block } .sB91D88D { width:15.67pt; display:inline-block } .s39C0B46E { width:53.66pt; display:inline-block } .s4FC14A04 { width:124.46pt; display:inline-block } .sE0E3AF24 { width:59.7pt; display:inline-block } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s9E97F54A { width:85.05pt; display:inline-block } .sE159D65A { width:141.75pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sA89582B { font-family:Arial; font-size:10pt; color:#0069d6 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   THIRD SECTION         CASE OF PERKS AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95)                 JUDGMENT   STRASBOURG     12 October 1999         In the case of Perks and Others v. the United Kingdom , The European Court of Human Rights, sitting, in accordance with Article   27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol   No.   11 [1] , and the relevant provisions of the Rules of Court 2 , as a Chamber composed of the following judges:     Mr   J.-P. Costa , President ,   Mr   P. Kūris ,   Mrs   F. Tulkens ,   Mr   K. Jungwiert ,   Mrs   H. Greve,   Mr   K. Traja , Judges ,   Sir   Rupert Jackson , ad hoc Judge , and also of Mrs S . Dolle , Registrar , Having deliberated in private on 29 June 1999 and on 21 September 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court, as established under former Article   19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) [2] , by the United Kingdom Government (“the Government”) on 20 November 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in applications nos. 25277/94, 25279/94, 25280/94, 25281/94, 25285/94, 28048/95, 28192/95 and 28456/95 against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by eight United Kingdom citizens, Mr Kevin Perks, Mrs Andrea Rowe (Kennedy), Mr Gordon Mudryj, Mr   Robert Massey, Mr Alan Beattie, Mr Leveson Knight, Mr Arthur Tilley and Mr John Crane. The object of the Government’s application to the Court was to obtain a decision as to what, if any, amounts in just satisfaction under Article 41 of the Convention should be paid by the Government to the applicants in respect of the alleged violation of Article 6 §§ 1 and 3(c), which the Government did not contest. 2.     All applicants, acting through their representatives, HMB law solicitors practising in Stoke-on-Trent, and Mrs Deborah Still, a solicitor at the Rochdale Law Centre, designated Mr Ben Emmerson, a barrister practising in London, as the lawyer who would represent them (Rule 36 of the Rules of Court). Having originally been designated before the Commission by the initials G.M., R.M., and L.K., these three applicants subsequently agreed to the disclosure of their names: Mr Gordon Mudryj, Mr   Robert Massey and Mr Leveson Knight, 3.     On 14 January 1999 the Panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol no. 11 of the Convention and Rules   100 § 1 and 24 § 6 of the Rules of Court, that the applications would be examined by one of the Sections. They were, thereupon, assigned to the Third Section (Rule 52 § 1). On 24 February 1999 Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who was ex officio member of the Chamber constituted to examine the applications (Article   27   §   2 of the Convention and Rule 24 § 4 of the Rules of Court), withdrew from sitting in the Chamber, having taken part in the Commission’s examination of the case (Rule 28). The Government accordingly appointed Sir Rupert Jackson to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Mr J.-P. Costa, Vice-President of the Section, took over the presidency of the Chamber in the examination of the applications (Rule 12) and determined the composition of the Chamber (Rule 52 § 2 and Rule 12). In addition to the President of the Chamber, its other members thus were Mr   P. Küris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr   K.   Traja and Sir Rupert Jackson, ad hoc judge. 4.     In accordance with Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues in the applications. The Registrar received the applicants’ memorial on 25 May 1999 and the Government’s memorial on 31 May 1999. On 29 June 1999 the Court decided to join all eight applications (Rule 43 § 1). 5.     In accordance with the decision of the President, a hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 1999. There appeared before the Court: (a)   for the Government Mr   M. Eaton , Foreign and Commonwealth Office,   Agent , Mr   N. Lavender ,   Counsel , Mr   M. Collon , Lord Chancellor’s Departement,   Adviser ; (b)   for the applicants Mr   B. Emmerson , Barrister,   Counsel , Mr   I. Wise , Solicitor, Mrs   D. Still , Solicitor, Mr   R. Wise Solicitor,   Advisers . The Court heard addresses by Mr Emmerson and Mr Lavender, and also their replies to a question put by one of its members. AS TO THE FACTS I.   the circumstances of the case 6.     Each applicant failed to pay sums due in respect of a community charge (poll tax). At the time, the applicants were dependent on State benefits or living on a low income. In separate proceedings in magistrates’ courts it was established that the non-payment was due to the debtor’s wilful refusal or culpable neglect. Each of the applicants was thereupon committed to a term of imprisonment and detained. Legal aid was not available and the applicants were not legally represented before the magistrates’ courts. The applicants were released on bail after applying for judicial review before the High Court. Following judicial review proceedings, each applicant obtained an order quashing the magistrates’ imprisonment order in his or her case. A.   The case of Mr Perks 7.     As a result of childhood meningitis, the applicant suffers from a number of physical and learning difficulties, including severe illiteracy. He requires continuous medication following the removal of a tumour from his heel and experiences severe difficulty in walking. At all relevant times he has lived on Invalidity Benefit. On 5 June 1991, the Wolverhampton Magistrates’ Court ordered the issue of a liability order in respect of the applicant’s unpaid community charge. 8.     On 15 January 1993, in answer to a summons issued on the application of Wolverhampton Metropolitan Borough Council (“the charging authority”), the applicant appeared before Mr Gillespie, a stipendiary magistrate (a professional magistrate appointed to sit in a magistrates’ court and exercise its jurisdiction in place of two or more lay justices) for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The applicant, who was not represented, gave evidence that:   (a)   his income consisted of benefit of 56.70 pounds sterling (GBP) per week;   (b)   he lived with his elder sister, who was also in receipt of benefit, and to whom he paid GBP 15 per week, plus contributions toward fuel costs. He had no expenditure on loans or goods ordered on credit;   (c)   he had no personal savings;   (d)   he had not paid his community charge because he had not received an instalment book (he conceded that he had not in fact requested one). He had not contacted the Council because he did not have the money to make a telephone call. At the hearing the applicant offered to pay GBP 10 per week towards the arrears. On the basis of this evidence, the magistrate   found that the applicant had made no attempt whatsoever to discharge his financial obligations in respect of the community charge, that he had taken no steps to obtain an instalment book and that his excuse that he did not have sufficient money to enable him to telephone the charging authority was without merit or credibility. The magistrate concluded that the applicant’s failure to pay the community charge was due to his culpable neglect. He fixed a term of imprisonment of 30 days but postponed its operation against weekly payments of GBP 10. 9.     The applicant paid only two instalments and appeared before the Wolverhampton justices on 12 May 1993 on the Council’s further application. He was again not legally represented. He informed the court that he had been unwell and had spent at least one week in hospital during February 1993. However, the magistrates concluded that the applicant’s circumstances had not changed materially since the imposition of the suspended term of imprisonment. They issued a warrant committing him to prison for 28 days. The applicant spent six days in custody before release on bail pursuant to an order made on 18 May 1993 by a High Court judge, who also granted leave to move for judicial review. 10.     The application for judicial review was heard in the High Court on 26   October 1993. Counsel for the applicant submitted evidence in support of their claim that the applicant was mentally and physically handicapped. The applicant’s sister, Ms J. Perks, with whom the applicant had been living for about seven years, stated in an affidavit that the applicant’s only writing ability was to write his name, that his reading ability was very limited and that he had a very poor memory. Ms Perks further stated that she did not know how her brother had managed to get to the Magistrates’ Court on 15   January 1993 and again on 12 May 1993 and that she was surprised to learn that he had made two payments in the latter part of January 1993, as she would have thought that the applicant would have certainly forgotten about the judicial order after about a fortnight. Ms Perks submitted that she was astonished and dismayed that such a mentally handicapped person could be imprisoned without anyone being told what had happened to him. She further stated: “I believe that anyone who has had contact with [the applicant] would quickly realise that he is severely mentally handicapped… There is no way that [he] has deliberately avoided paying his community charge, as I have explained, he is simply unable to understand.” In a report of October 1993 a Dr Londhe, who had examined the applicant, stated inter alia that it was immediately apparent that he had a poor memory and that he was vague on detail. It was also immediately apparent that he had difficulty in walking and engaging in higher level communication. Counsel for the applicant also submitted a report by Ms   K.   Lowe, a community health consultant, which bore out many of the points made out in Ms Perk’s affidavit and Dr Londhe’s report. 11.     Affidavits were submitted also by Mr Gillespie, the stipendiary magistrate, and Mr Jewkes, who was one of the two justices who had ordered the applicant’s imprisonment on 12   May 1993. Mr Gillespie was unable to remember whether the applicant appeared to have any physical difficulties. His notes from the hearing on 15 January 1993 did not disclose any information suggesting that the applicant had any difficulty answering questions. To the contrary, according to Mr Gillespie the applicant was able to give a full account of himself and his financial circumstances (see paragraph 8 above). It appeared to the magistrate that the applicant had no difficulty expressing himself. Mr Gillespie further stated in his affidavit: “Had it appeared to me that the applicant suffered from substantial mental impairment I would inevitably have put the case back and made arrangements for him to see the Court Duty Solicitor…”   Mr Jewkes stated that the applicant, when appearing before him at the Magistrates’ Court on 12 May 1993, had had minimal difficulty in walking into the witness box which required the negotiation of two steps. Mr Jewkes was confident that nothing in the way the applicant had answered questions put to him had suggested that he suffered from severe mental impairment. The applicant seemed to understand the nature of the proceedings. 12.     Counsel for the applicant sought judicial review on several grounds. They argued, firstly, that the finding of the stipendiary magistrate of 15   January 1993 that the applicant had culpably neglected to pay community charge had been perverse. That was so because the magistrate did not make an adequate inquiry into the applicant’s means and circumstances. Furthermore, the magistrate should have been aware from the appearance and demeanour of the applicant that he suffered from severe mental disability. 13.     Mr Justice Harrison noted that the applicant’s submission was made in the light of the affidavit of his sister and the reports of Dr Londhe and the community health officer, and that that evidence had not been available to Mr Gillespie, the stipendiary magistrate who had decided on the matter. He then went on to review the process by which the magistrate had reached his decision, in the light of the evidence which had been available at the hearing before him, and stated , inter alia : “Although I appreciate and take into account that the applicant’s sister and Dr   Londhe both say that the applicant’s disabilities would have been immediately apparent, those persons were not in court on that day and, in the light of the contents of Mr Gillespie affidavit, I am not prepared to accept that Mr Gillespie was perverse in not realising the applicant’s disabilities. I note that in Dr Londhe’s report [it is said] that the applicant had clear speech, that he answered most of his questions and that there were no signs of thought disorder and his general mood appeared cheerful. Whether or not that was the situation on 15 January 1993, it seems to me, from Mr   Gillespie’s affidavit, that it is simply not possible for me to hold that he was perverse in not realising the disabilities of this applicant.” Mr Justice Harrison also found that the magistrate had inquired into the applicant’s means and that his finding that the applicant had taken no steps to obtain an instalment book and his conclusion that the applicant had culpably neglected to pay his community charge were not perverse. The magistrate’s failure to adjourn the hearing did not amount to perversity either, Mr Gillespie not having been aware of the applicant’s handicap. Mr   Justice Harrison concluded: “[A]lthough Mr Gillespie may well have reached a different conclusion if he had known what this court now knows, he did not act perversly or unreasonably in dealing with the matter in the way that he did on the evidence that was available to him at that hearing.” 14.     Counsel for the applicant argued that the decision of 12 May 1993 had also been perverse. In particular, the magistrates failed to make proper enquiries in the light of the evidence received by them. It was perverse not to withdraw the postponed warrant of arrest in the light of the applicant’s circumstances and not to remit the debt. Mr Justice Harrison rejected these arguments (except to the extent set out in paragraph 15 below) referring in part to his finding that the evidence in respect of the applicant’s disability had not been available to the Magistrates’ Court. 15.     Mr Justice Harrison upheld counsel’s argument that the mention of a spell in hospital, which the applicant had made at the hearing on 12   May 1993, should have led the magistrates to make further inquiries. Mr   Justice Harrison stated, inter alia : “[i]t is quite clear …that [at the hearing on 12 May 1993] the applicant was saying that he had not been well and that he went back to hospital in February. It is submitted by [the applicant] that that evidence should have led the justices to make inquiry about why he had been in hospital, particularly insofar as it may have been relevant to the question why he had not paid the community charge. That seems to me to be a good point … It seems to me that that evidence should have put the justices on notice at least to make further inquiries about the applicant’s state of health because it may have been relevant to his ability to pay before they sent him to prison for non-payment … In failing to do that the justices failed to take into account a material consideration. For that reason I would quash the magistrates’ decision of 12 May 1993… In view of my decision to quash the decision of May 1993, I have to consider whether I should remit the matter back to the justices… [Mr Perks’] physical and mental disabilities which I accept, from the evidence I have, are very significant. I would think it very unlikely that, if the magistrates did know at the time what this court now knows, they would have issued a warrant of commitment whether suspended or otherwise. [Mr Perks], I am told has already spent six days in prison. I have come to the conclusion that, in the circumstances, the appropriate thing for me to do is to take no further action apart from quashing the decision of May 1993.   I therefore do not propose to remit the matter back to the   magistrates. I would be surprised, in the circumstances, if the Local Authority, knowing now what they will know about [Mr Perks’] disabilities, would wish to issue a new warrant.” Deciding on the matter of costs, Mr Justice Harrison considered that the justices’ conduct was not so outrageous as to justify an award of costs against them. B.   The case of Mrs Rowe 16.     The applicant was at all relevant times suffering from back difficulties and asthma which have left her unfit for work. At the relevant period of time she received income support in the form of sickness benefit. Between September 1991 and July 1992, the Middleton Magistrates’ Court ordered the issue of liability orders in respect of the applicant’s unpaid community charge. 17.     On 26 May 1993, in answer to a summons issued on the application of Rochdale Metropolitan Borough Council, the applicant appeared at the Middleton Magistrates’ Court for an inquiry to be made into her means and the reasons for her failure to pay the community charge. The applicant, who was not represented, gave evidence that her income consisted of benefits amounting to some GBP 46 per week, that she had approached the Metropolitan Council with a view to arranging direct deductions from income support towards her community charge arrears, and that a Council officer had advised her to contact the Council’s representative at court and that there would be no problems in arranging deductions. On the basis of the evidence before them, the magistrates concluded that the applicant’s failure to pay the community charge was due to her culpable neglect and issued a warrant committing her to prison for 90 days, the maximum permitted by law. 18.     The applicant spent three days in custody before release on bail pursuant to an order made on 28 May 1993 by a High Court judge, who also granted leave to move for judicial review. The application for judicial review was heard in the High Court on 29   October 1993. The court observed that the purpose of the community charge legislation was to secure the collection of local taxes and not punishment. In his judgment quashing the magistrates’ decision of 26 May 1993 Mr   Justice Potts stated inter alia : “...[T]he justices failed to exercise their discretion correctly. They could (and should) have directed themselves as to the possibility ... of deduction from income support of the sums due. The fact that the [magistrates’ clerk]’s affidavit is silent as to whether the justices considered this course leads me to think that they misdirected themselves and that their decision ... was flawed.” C.   The case of Mr Mudryj 19.     In October 1990, the Newcastle-under-Lyme Magistrates’ Court made a liability order in respect of the applicant’s unpaid community charge. On 5 November 1991, the applicant was brought before the same court, on a warrant issued on the application of Newcastle Borough Council, for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The applicant, who was not represented, gave evidence that he had been made redundant by his employer some six months previously, had recently separated from his wife and was living on income support. 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. They fixed a term of imprisonment of 14 days but postponed its operation against weekly payments of GBP 8 towards the arrears. The applicant failed to maintain these payments and returned to court on 18   August 1992 on the Council’s further application. He was again unrepresented. He gave evidence that his weekly income was income support of GBP 47.50 and that his weekly outgoings amounted to GBP 46. The magistrates issued a warrant committing him to prison for 14 days. At neither hearing was the applicant advised of any possibility of seeking legal representation. 20.     The applicant spent several hours in custody before bail and leave to apply for judicial review were granted on the same day. The application for judicial review was heard by the High Court on 12   January 1994. In his judgment quashing the applicant’s committal to prison, Mr Justice Dyson stated inter alia : “...[I]t is clear on the evidence that these magistrates failed to consider any alternative to imprisonment. It would appear that they rather lost patience with the applicant... They decided immediately on the prison option without considering the alternative ways there were in which to exercise the discretion vested in them... [T]hey fettered their discretion in that they failed to have regard to the purpose of the legislation, namely the collection of local government taxes... [T]his was plainly an unlawful and wrong approach to the purpose of imprisonment. Accordingly ... the decision of 18 August 1992 to commit the applicant to prison was unlawful. I turn, therefore, to the relief which it is appropriate to grant … I grant a declaration that the decision was unlawful, alternatively unreasonable, for the same reasons I granted such a declaration in the case of Massey”. The Court further considered that the magistrates had made a genuine error of law and that their conduct was not so grievous as to justify an award of costs against them. D.   The case of Mr Massey 21.     At all relevant times the applicant was living on income support. In September 1990, the Newcastle-under-Lyme Magistrates’ Court made a liability order in respect of the applicant’s unpaid community charge. On 16 July 1991, in answer to a summons issued on the application of Newcastle 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 community charge. The magistrates found that his failure to pay the community charge was due to his culpable neglect. They fixed a term of imprisonment of 7   days but postponed its operation against monthly payments of GBP 20 towards the arrears. On 8 October 1991, at the request of the applicant, the court varied the terms of postponement to monthly payments of GBP 10. The applicant failed to maintain these payments and was brought back before the magistrates on 5 May 1992 when a further means inquiry was held and the terms of postponement varied so as to require payments of GBP 26 every two weeks. The applicant was not represented on any of these occasions. 22.     Following further failure to maintain payments, the applicant again appeared in court on 4 August 1992, still unemployed and in receipt of income support. He was again unrepresented. He advised the magistrates that his liability to make repayments under a loan agreement was about to come to an end, so that he would in the future be able to make payments to clear the remaining community charge arrears which then stood at approximately GBP   40. The magistrates issued a warrant committing him to prison for 5   days. 23.     The applicant spent several hours in custody before release on bail pursuant to an order made the same day by a High Court judge, who also granted leave to move for judicial review. The application for judicial review was heard by the High Court on 12   January 1994. Mr Justice Dyson quashed the magistrates’ decision of 4   August 1992. He stated inter alia : “[T]he magistrates were unreasonable in the Wednesbury sense in committing the applicant to an immediate term of imprisonment on the facts of this case. On the uncontested evidence they failed to consider the alternative of accepting the offer that was made. On that basis it seems to me that …they regarded the purpose of the order for imprisonment which they imposed as punitive rather than coercive. I am quite satisfied that they failed to have regard to the purpose of the legislation by failing to consider the alternative of deducting the applicant’s arrears from his income support. The failure to consider that alternative was, in my view, an unlawful fetter of their discretion. Undoubtedly, Regulation 41(3) of the [1989 Regulations] does require the justices to exercise a discretion. In these circumstances, it seems to me that the applicant had made out his entitlement to judicial review on the basis that the decision to commit was an unlawful decision… I grant a declaration that the decision was unlawful, alternatively unreasonable. I do that because this is one of a number of cases in which these magistrates have made decisions similar to the one in question. Accordingly, it seems to me that it is desirable in the public interest that a declaration should be made making it quite clear that what was done here was unlawful, alternatively unreasonable.” E.   The case of Mr Knight 24.     From 1988 onwards, after losing his employment, the applicant had a number of self-employed occupations, producing little or no income. He was ineligible for unemployment benefit during periods of inactivity. From about the end of 1992, when a small retail business he had established in February that year ceased trading owing some GBP 30,000, the applicant was dependent on income support. In 1991 and 1992, the Stoke-on-Trent Magistrates’ Court ordered the issue of a liability order in respect of the applicant’s unpaid community charge. 25.     On 11 August 1992, in answer to a summons issued on the application of Stoke-on-Trent 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 community charge. The applicant, who was not represented, gave evidence that:   (a)   he set up the retail business, with the aid of a substantial mortgage, in early 1992.   He had previously been unemployed. His business outgoings amounted to some GBP 2,000 per month.   He found it difficult to stock the shop adequately;   (b)   he presently drew no income from the business, but hoped that it would shortly produce sufficient income to enable himself and his wife each to pay GBP 10 per week towards their community charge arrears; and   (c)   his wife suffered almost total deafness and was severely disabled as a result of a recent operation. She was in receipt of disability benefit of some GBP 41 per week. The applicant was obliged to care for her in addition to managing the business. On the basis of this evidence, the magistrates concluded that the applicant’s failure to pay the community charge was due to his culpable neglect. They rejected the applicant’s offer to pay GBP 10 per week towards the arrears and issued a warrant committing him to prison for 7 days. 26.     The applicant spent several hours in custody before release on bail pursuant to an order made on 11 August 1992 by a High Court judge, who also granted leave to move for judicial review. The application for judicial review was heard in the High Court on 12   January 1994. Mr Justice Dyson observed that the case before him was very similar to the cases of Mr Mudryj and Mr Massey, which he had examined on the same day, and that the applicants’ arguments had been essentially the same. He further stated: “Given the peremptory way in which the magistrates dealt with the matter, in committing the applicant to prison after a fairly summary investigation as to his means at that time, I am driven to the conclusion that they failed to give consideration to any alternative ways of dealing with the matter. On that ground alone, it seems to me that, in the light of a number of recent authorities, to which my attention has been drawn, as to the necessity of considering alternatives to prison, this application must succeed… Accordingly I conclude that the decision of 11 August 1992 was unlawful…I consider it appropriate in this case to grant a declaration that that decision was unlawful, alternatively unreasonable.” F.   The case of Mr Tilley 27.     At the relevant time the applicant was on income support and was in poor health. On 26 May 1993 the local Magistrates’ Court, having found that the applicant was in wilful default of paying community charge, committed him to 50 days in prison. He was not legally represented. 28.     The applicant served 5 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court. On 26 January 1995 the High Court quashed the applicant’s committal to prison as the Magistrates’ Court had failed to consider possible alternatives to immediate imprisonment, such as the imposition of a deferred order of imprisonment or an order for deductions from the applicant’s income support. Mr Justice Schiemann stated inter alia : “However wilful the behaviour of the applicant may have been, if on the day of the hearing he indicates that he is, however foolishly, without resources, then the right course for the justices is to consider whether or not to make [an order]. Indeed, in the absence of compelling reasons... one of [the] alternatives must be pursued rather than imprisonment. The case law makes that plain.” G.   The case of Mr Crane 29.     At the relevant time the applicant was an employee earning about GBP 180 per week, on which he was supporting his wife and two children. On 3 August 1993 the applicant appeared before the local Magistrates’ Court in respect of his arrears of community charge. He made an offer to pay off these arrears at a rate of GBP 10 per week. The court noted that the applicant had failed, on an earlier occasion, to pay GBP 10 per week and found that the applicant had culpably neglected to pay the community charge. He was committed to 28 days in prison. The applicant was not legally represented at the committal proceedings. 30.     The applicant served 9 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court. On 14 March 1995 the High Court quashed the applicant’s committal to prison. Mr Justice McCullough stated, inter alia : “It is clear that the alternatives to immediate issue of a warrant of commitment must be considered before deciding to imprison immediately, and that the power to imprison immediately should not be exercised if any of the other alternatives provides a viable means to encourage, if not ensure, payment of the outstanding amount. In this case the Justices refused to accept the applicant’s offer to pay the sum of GBP 10 a week, but this refusal was not unreasonable because the applicant had on an earlier occasion defaulted to pay GBP 10 a week. The possibility of an Attachment of Earnings Order could not realistically be considered because … the applicant had not furnished any information … . There is no reference here that the Justices [g]ave any consideration to the exercise of their power under Regulation 41(3)(b) to fix a term of imprisonment and postpone the issue of the warrant on condition that GBP 10 a week, or such greater amount as the Justices thought reasonable, be paid. This should have been considered. The implication is that it was not and, accordingly, the decision must be regarded as flawed and has to be quashed, as it now is.” H.   The case of Mr Beattie 31.     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, who was not legally represented, told the court that he was in receipt of income support. The court issued a suspended order of 28 days in prison on condition of weekly payments of GBP 2. 32.     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. On that date the applicant did not appear before the court. The court issued a warrant. 33.     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 leave to apply for judicial review. In his application for judicial review the applicant claimed that the Magistrates’ Court had failed to consider the opportunity for direct deductions from his income support. In respect of the applicant’s absence from the hearing before the Magistrates’ Court on 2 December 1992 the application only mentioned that the applicant had “failed to attend”. The application did not rely on this fact as a ground for judicial review. 34.     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 18 January 1995 the High Court quashed the applicant’s committal to prison. II.   relevant domestic law and practice A.   Provisions concerning enforcement of payment of the community charge 35.     The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) (“the 1989 Regulations”). The relevant provisions of Regulation 29 (“application for a liability order”) are as follows: “(1) If an amount which has fallen due ... is wholly or partly unpaid the charging authority may ... apply to a magistrates’ court for an order against the person by whom it is payable. ... (5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.” Regulation 39 (1) provides for the seizure and sale of a debtor’s property (“levying of distress”): “Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made.” Regulation 41 is concerned with the committal to prison of a debtor, and provides, so far as is relevant: “(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. (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. (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 the warrant until such time and on such conditions (if any) as the court thinks just. ... (7) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed three months, unless the amount stated in the warrant is sooner paid ... .” The relevant part of Regulation 42 provides: “(2) Where an application under Regulation 41 has been made, and after the making of the inquiries mentioned in paragraph (2) of that regulation no warrant is issued or term of imprisonment fixed, the court may remit all or part of the appropriate amount … to which the application related. (3) Where an application under regulation 41 has been made but no warrant is issued or term of imprisonment fixed, the application may be renewed ... on the ground that the circumstances of the debtor have changed.” B.   Appeal from a decision of a magistrates’ court by way of case stated 36.     By virtue of section 111 of the Magistrates’ Court Act 1980 a party to proceedings before a magistrates’ court may “question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...”. This is known as the “case stated” procedure. Under section 113 of the 1980 Act, magistrates may grant bail to a party who applies to them to state a case; but if they refuse to do so, in cases categorised as “civil” under the domestic law, the High Court has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary. 37.     Acts performed pursuant to an order made by a magistrates’ court which is subsequently set aside by a superior court are not themselves inherently unlawful. It is at the discretion of the higher court whether these collateral acts are also invalid: Regina v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58, 124D-G (per Lord Justice Taylor in the Court of Appeal); London and Clydeside Estates Ltd v.   Aberdeen District Council [1980] 1 Weekly Law Reports 182, 189C-190C (per Lord Hailsham, Lord Chancellor, in the House of Lords); Regina v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] Queen’s Bench 815, 840A-C (per Sir John Donaldson, Master of the Rolls). C.   The distinction between an act of a magistrates’ court which is merely wrong in law and one which is so wrong as to be in excess of jurisdiction 38.     In English law, orders of a magistrates’ court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court. It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 – see paragraphs 43 and 44 below). 39.     The appropriate test for whether an order of a magistrates’ court is void for lack of jurisdiction is that set out by the House of Lords in McC. v.   Mullan [1985] Appeal Cases 528. In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do. The order was quashed on judicial review on the ground that, by virtue of Article 15 (1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so. The boy then applied for damages for false imprisonment against the magistrates. Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when it was the law that magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction (see paragraph 43 below), the House of Lords was required to decide the jurisdictional question. In its judgment, a magistrates’ court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if, although it had jurisdiction, it were guilty of some gross an