AS TO THE ADMISSIBILITY OF
Application No. 28048/95
by Alan Thomas BEATTIE
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 14 July 1995 by
Alan Thomas BEATTIE against the United Kingdom and registered on
28 July 1995 under file No. 28048/95;
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 1971, resides in
Preston. He is currently unemployed. Before the Commission the
applicant is represented by Ms. Deborah Still, a solicitor of Rochdale
Law Centre, Rochdale, Lancashire.
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 31 March 1990.
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 was present at the
hearing and told the Court that he was in receipt of income support.
The Court issued a suspended order of 28 days in prison, the suspension
being on condition that the applicant pay £2 per week.
The applicant was not legally represented at the hearing.
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. The purpose of the
hearing was to establish the reasons for the applicant's failure to
pay.
On 2 December 1992 the applicant did not appear before the Court.
The Court committed the applicant to prison for 28 days on the basis,
apparently, that his failure to pay was due to his culpable neglect.
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 for leave
to apply for judicial review. The application stated inter alia that
the Magistrates' Court had failed to consider the opportunity for
direct deductions from the applicant's income support.
In the judicial review proceedings, Mr. L., an officer at the
local Borough Council, stated in his affidavit that a notice for the
hearing of 2 December 1992 had been sent to the applicant. Another
affidavit, of a trainee solicitor, stated inter alia:
"Mr. L also advised me that a letter was sent out by
recorded delivery to the applicant's address..., inviting him to
attend the Magistrates' Court on the 2nd of December 1992 ...
The applicant advised me ... that he had not received that
letter but his mother recalled a recorded delivery letter
arriving and handing the same to him."
The affidavit of Frederick Wood Justice of the Peace, who was the
Chairman of the Bench at the hearing on 2 December 1992, made no
mention of the issue whether the Magistrates' Court, when committing
the applicant to prison, was satisfied or not that he had received a
notice for the hearing.
The application for judicial review was not opposed by the local
community charge authority and the Magistrates' Court agreed to sign
a consent order. Consent was reached apparently on the basis of a
reduction in the total amount owed by the applicant, together with an
order for the making of deductions from the applicant's income support.
On 18 January 1995 the High Court quashed the applicant's committal to
prison.
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) 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 and not in accordance with a procedure
prescribed by law. He states that on 2 December 1992 the Magistrates
ordered the applicant's imprisonment in his absence and without
satisfying themselves that he had received a notice for the hearing.
Thus the applicant was not protected from arbitrariness. The applicant
also complains under Article 5 para. 5 of the Convention of the lack
of compensation for the unlawful detention.
Under Article 6 of the Convention the applicant submits that
legal aid was not available and that he was not legally represented at
the committal hearing on 16 September 1992. Legal aid would not have
been available either for the hearing of 2 December 1992.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 July 1995 and registered on
28 July 1995.
On 28 February 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.
On 15 April 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, reads
as follows.
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by
law:
...
b. the lawful arrest or detention of a person for non-
compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Government submit that the present application 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 16 September 1992, at
a hearing at which the applicant was present. On 2 December 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
2 December 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's
statement that he had not received a notice of the hearing is not
supported by any evidence. At the same time there exists evidence to
the contrary, contained in the affidavits of Mr. L and of a trainee
solicitor. In these circumstances, as the applicant was duly informed
of the hearing, it was lawful to proceed on 2 December 1992 in his
absence.
The Government further state that by agreeing to sign a consent
order the magistrates only recognised, in the light of subsequent
decisions of the High Court, that their own earlier decision was wrong
and would be reversed on appeal. This, however, in no way affects the
lawfulness of this earlier decision.
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 as the Court did in Benham in paras. 44 - 46 of that
judgment, a qualification arising from the fact that in the present
case there was no ruling of a domestic court which can be relied upon
(as neither the grounds for the application, nor the grounds for the
consent order were based upon the issue now claimed to have made the
detention unlawful).
The applicant agrees with the Government that the use of the
"consent order procedure" in his case does not affect the issues before
the Commission.
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).
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 September 1992. The warrant for the
applicant's arrest was issued on 2 December 1992, when he was not
present.
Consequently the applicant alleges that the Magistrates' Court
in his case acted on 2 December 1992 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
Full & Egal Universal Law Academy