BENHAM v. THE UNITED KINGDOM



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 19380/92

                     Stephen Andrew Benham

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                 (adopted on 29 November 1994)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-11) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 12-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-38) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 17-29). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law and practice

          (paras. 30-38). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

     (paras. 39-80) . . . . . . . . . . . . . . . . . . . . .8

     A.   Complaints declared admissible

          (para. 39). . . . . . . . . . . . . . . . . . . . .8

     B.   Points at issue

          (para. 40). . . . . . . . . . . . . . . . . . . . .8

     C.   As regards Article 5 para. 1 of the Convention

          (paras. 41-52). . . . . . . . . . . . . . . . . . .8

          CONCLUSION

          (para. 52). . . . . . . . . . . . . . . . . . . . 10

     D.   As regards Article 5 para. 5 of the Convention

          (paras. 53-58). . . . . . . . . . . . . . . . . . 10

          CONCLUSION

          (para. 58). . . . . . . . . . . . . . . . . . . . 11

     E.   As regards Article 6 of the Convention

          (paras. 59-77). . . . . . . . . . . . . . . . . . 11

          CONCLUSION

          (para. 77). . . . . . . . . . . . . . . . . . . . 13

     F.   Recapitulation

          (paras. 78-80). . . . . . . . . . . . . . . . . . 14

                       TABLE OF CONTENTS

                                                          Page

CONCURRING OPINION OF Mr. N. BRATZA . . . . . . . . . . . . 15

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF Mr. H. G. SCHERMERS. . . . . . . . . . . . . . . 19

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF Mrs. G. H. THUNE

joined by Mr. I. CABRAL BARETTO.. . . . . . . . . . . . . . 20

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF Mr. B. MARXER. . . . . . . . . . . . . . . . . . 21

DISSENTING OPINION OF Mr. F. MARTINEZ . . . . . . . . . . . 22

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . 24

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 26

I.INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant is a United Kingdom citizen, born in 1966.  He

lives in Wimborne in Dorset, and was represented before the Commission

by Mr. J. Wadham, the Legal Director of Liberty.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented initially by Mrs. A.F. Glover,

of the Foreign and Commonwealth Office, London, and latterly by

Mr. M. R. Eaton, of the same office.

4.   The case concerns the applicant's detention for failure to pay

community charge (poll tax) and the related proceedings.  The applicant

invokes Articles 5 and 6 of the Convention.

B.   The proceedings

5.   The application was introduced on 20 September 1991 and

registered on 21 January 1992.

6.   On 12 October 1992 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on 17 February 1993.

The applicant replied on 13 May 1993.  On 8 April 1993 the Commission

granted the applicant legal aid for the representation of his case.

8.   On 30 August 1993 the Commission decided to hold a hearing of the

parties.  The hearing was held on 13 January 1994.  The Government were

represented by Mrs. A.F. Glover, Agent, Mr. D. Pannick, Q.C., Counsel,

and Ms. A. Jenkins and Ms. E. Hutchinson, Advisers, of the Lord

Chancellor's Department.  The applicant was represented by

Mr. J. Wadham, of Liberty, and Mr. B. Emmerson, Counsel.

9.   On 13 January 1994 the Commission declared the application

admissible.

10.  The text of the Commission's decision on admissibility was sent

to the parties on 26 January 1994 and they were invited to submit such

further information or observations on the merits as they wished.  No

such observations were submitted.

11.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

12.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

     MM.  C.A. NØRGAARD, President

          A. WEITZEL

          F. ERMACORA

          E. BUSUTTIL

          G. JÖRUNDSSON

          H.G. SCHERMERS

          H. DANELIUS

     Mrs. G.H. THUNE

     MM.  F. MARTINEZ

          C.L. ROZAKIS

     Mrs. J. LIDDY

     MM.  J.-C. GEUS

          B. MARXER

          G.B. REFFI

          M.A. NOWICKI

          I. CABRAL BARRETO

          N. BRATZA

          E. KONSTANTINOV

13.  The text of this Report was adopted on 29 November 1994 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

15.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

17.  On 31 March 1990 the applicant became subject to the community

charge (poll tax).  On 21 August 1990 the Poole Magistrates' Court

ordered the issue of a liability order in respect of the applicant's

unpaid community charge.  The liability order was for £355.00,

including £20.00 costs.

18.  On 25 March 1991, in answer to a summons, the applicant appeared

at the Poole Magistrates' Court for an inquiry to be made into his

means and the reasons for his failure to pay the community charge.  The

magistrates found, inter alia,:

     (a) that the applicant, who had 9 "O" level GCSE certificates,

     had had employment in early 1990, but had left voluntarily in

     March 1990 after being asked to undertake work he did not like;

     (b) that he had not had gainful employment since early 1990;

     (c) that he had applied for income support but had been refused;

     (d) that he stated that he had no personal assets or income;

     (e) that he had failed to pay anything towards the community

     charge from the first demand up to the making of the liability

     order; and

     (f) that he had had a motor vehicle during the relevant part of

     1990 and it had been taxed and insured.

19.  The magistrates concluded that the applicant's failure to pay the

community charge was due to his culpable neglect "as he clearly had the

potential to earn money to discharge his obligation to pay".  They

considered that his conduct "over the many months from the time the

obligation to pay arose until the making of the liability order on

21 August 1990 was blameworthy, there being an obvious want of

attention to what ought to have been done".  They issued a warrant

committing the applicant to prison for 30 days.  The applicant was not

represented.

20.  On 27 March 1991 a solicitor went on the record as representing

the applicant and submitted a written application to the court

requesting the magistrates to state a case and to grant bail.  An

emergency (civil) legal aid certificate was obtained for the request

for a stated case.  Legal aid was not available for the application for

bail.  The bail application was refused on 28 March 1991.

21.  On 4 April 1991 an application for leave to apply for judicial

review and for bail was lodged in the High Court.  Bail was granted on

5 April 1991 and the application for leave was adjourned, to be granted

on 16 April.

22.  The magistrates stated a case on 3 July 1991.  It set out the

facts, summarised the evidence, gave the magistrates' conclusions, and

put the following three questions:

     "(1) Whether the following findings of fact can be supported by

     the evidence before us, namely that the appellant's failure to

     pay which led to the liability order being made was due to his

     culpable neglect.

     (2) Whether, before issuing the said warrant, we conducted an

     adequate inquiry into the appellant's means.

     (3) Whether we acted reasonably in exercising our discretion to

     issue the said warrant."

23.  The Divisional Court heard the appeal by way of case stated and

the application for judicial review on 7 and 8 October 1991.  The

applicant was represented and had legal aid.

24.  Mr. Justice Potts, giving the Divisional Court's judgment of

8 October 1991, stated that the Court considered it right to proceed

with the appeal by way of case stated rather than the judicial review

application.  He found that the justices had had to determine two

issues.  One concerned the issue of culpable neglect, the second

concerned the applicant's inability to pay the community charge.

25.  As to culpable neglect in the applicant's not paying the charge

between April 1990 and August 1990, Mr. Justice Potts noted that on the

evidence before the justices the applicant at the relevant time was not

working, had no income and no personal assets.  He continued:

     "In certain circumstances a failure on the part of the debtor to

     work and put himself in funds to pay the community charge might

     constitute culpable neglect.  In my judgment however, before such

     a finding could be sustained, at the very least there would have

     to be clear evidence that gainful employment, for which he was

     fit, was on offer to the debtor and that he had rejected or

     refused that offer.  There was no such evidence in this case.

     In my judgment, the justices' findings of culpable neglect cannot

     be sustained on the evidence adduced before them. ..."

26.  As to the applicant's inability to pay, Mr. Justice Potts found

that the decision to commit was wrong.  The justices had found that the

applicant was without means, and it had been established in cases under

the General Rate Act 1967 that a committal order should be made only

where the ratepayer could pay and there was no other way of inducing

payment.  Mr. Justice Potts recalled that Regulation 42 (3) of the

Community Charges (Administration and Enforcement) Regulations 1989

made clear that there were alternatives to prison, and considered that

it was incumbent on the justices to consider those alternatives.

Specifically, he referred to the possibility of fixing a term of

imprisonment and postponing the issue of a warrant until such time and

on such conditions as the court thought fit, and refusing to issue a

warrant and letting the authority renew their application at a later

date on the ground that the debtor's financial circumstances had

changed.

27.  Mr. Justice Potts answered each of the magistrates' three

questions in the negative.

28.  Lord Justice Nolan, agreeing with Mr. Justice Potts, added that

the applicant had been required to pursue both an appeal by way of case

stated and an application for judicial review because he could

otherwise not have made a bail application to the High Court until the

magistrates had stated their case.  He expressed understanding for the

applicant's position, and stated that the "wasteful duplication of

expense and effort [was] plainly unsatisfactory".  He continued "[an]

inquiry into the best means of avoiding it in future cases is called

for, and we shall ask for it to be carried out as a matter of urgency".

29.  The Order made on the case stated provides that the "adjudication

of the Dorset Justices be set aside".  No order was made on the

judicial review application, and legal aid taxation was ordered for

both avenues of appeal.

B.   Relevant domestic law and practice

(a)  Community Charge Regulations

30.  Regulation 41 of the Community Charges (Administration and

Enforcement) Regulations 1989 ("the 1989 Regulations") provides as

follows:

     "(1) Where a charging authority had 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 a 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 3 months ..."

(b)  Review of administrative decisions and decisions of inferior

     courts

31.  In McC v. Mullan 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

([1985] AC 528).

32.  McC v. Mullan was a Northern Irish case in which magistrates had

made an order sending the juvenile defendant to a training school as

he had failed to attend an attendance centre.  The defendant was not

represented and the magistrates did not inform him of his right to

apply for legal aid.  Article 15 (1) of the Treatment of Offenders

(Northern Ireland) Order 1976 provided that magistrates were not to

pass a sentence of imprisonment or detention on an unrepresented

juvenile defendant unless inter alia he had been informed of his right

to apply for legal aid and had had the opportunity to do so, and had

refused or failed to apply.  The House of Lords found that although the

magistrates had jurisdiction to try and convict the defendant and to

order his detention, the omission to inform him of his right to legal

aid amounted to a failure to fulfil a statutory condition precedent to

the making of the training school order.  Accordingly, the magistrates

acted "without jurisdiction or in excess of jurisdiction" within the

meaning of Section 15 of the Magistrates Courts (Northern Ireland) Act

1964 and so were liable in a civil action for damages.

33.  In a case concerning rates, the predecessor to the community

charge (R. v. Manchester City Magistrates Court, ex parte Davies [1989]

1 All ER 30), the Court of Appeal found that as the magistrates there

had failed to make proper inquiry as to whether the ratepayer's failure

to pay rates was due to wilful refusal or culpable neglect, they had

failed to observe a statutory condition precedent, even though some

inquiry as to the applicant's finances was made (p. 98 c).  The

magistrates therefore acted outside or in excess of their jurisdiction

and so were not protected by Sections 44 and 55 of the Justices of the

Peace Act 1979.  The magistrates were liable in damages for the

applicant's unlawful imprisonment.  Lord Justice Neill, in his

judgment, referred to the third category of cases mentioned in McC

v. Mullan.  He said that in "this third category are cases where,

though the justices have 'jurisdiction of the cause' and may have

conducted the trial impeccably, they may nevertheless be liable in

damages on the ground of acting in excess of jurisdiction if their

conviction of the defendant or other determination does not provide a

proper foundation in law for the sentence or order made against him"

(p. 97 c).

34.  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 ...".

(d)  Magistrates' liability for damages for false imprisonment

35.  Prior to 1 January 1991, Sections 44 and 45 of the Justices of

the Peace Act 1979 (provisions which were formerly contained in the

Justices Protection Act 1848) protected a magistrate for acts done by

him in the execution of his duty with respect to any matter within his

jurisdiction unless it was proved that the act was done maliciously and

without reasonable and probable cause.  The protection was withdrawn

for acts done outside or in excess of jurisdiction by Section 45.

36.  On 1 January 1991 Section 108 of the Courts and Legal Services

Act 1990 entered into force.  Replacing Sections 44 and 45 of the

Justices of the Peace Act 1979, it provides, inter alia, that an action

lies against a Justice of the Peace (Magistrate) who acts beyond

jurisdiction if, and only if, it is proved that he acted in bad faith.

(c)  Legal aid

37.  Neither the civil nor the criminal legal aid scheme provides for

full representation before magistrates for proceedings for commitment

to prison for non-payment of the community charge.  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.

38.  Assistance by way of Representation ("ABWOR") enables the court,

in certain 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.

Regulation 7 (1) (b) of the Legal Advice and Assistance (Scope)

Regulations 1989 provides that ABWOR applies:

     "at a hearing in any proceedings in a magistrates' court to a

     party who is not receiving and has not been refused

     representation in connection with those proceedings, where the

     court -

     (i)  is satisfied that the hearing should proceed on the same

          day;

     (ii) is satisfied that that party would not otherwise be

          represented; and

     (iii)requests a solicitor who is within the precincts of

          the court for purposes other than the provision of

          ABWOR in accordance with this sub-paragraph, or

          approves a proposal from such a solicitor, that he

          provides that party with ABWOR ..."

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

39.  The Commission has declared admissible the applicant's complaints

concerning his detention for failure to pay the community charge, his

inability to bring an action for damages in respect of that detention,

and the absence of legal aid before the magistrates.

B.   Points at issue

40.  The following are the points at issue in the present application:

-    whether there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention;

-    if so, whether there has been a violation of Article 5 para. 5

(Art. 5-5) of the Convention; and

-    whether there has been a violation of Article 6 (Art. 6) of the

Convention.

C.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

41.  Article 5 para. 1 (Art. 5-1) of the Convention provides, so far

as relevant, as follows:

     "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:

     (a)  the lawful detention of a person after conviction by a

     competent court;

     (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; ..."

42.  The applicant considers that his detention was neither "in

accordance with a procedure prescribed by law" within the first

paragraph of Article 5 para. 1 (Art. 5-1) nor "lawful" within the

meaning of Article 5 para. 1 (a) (Art. 5-1-a) or (b) (Art. 5-1-b).  He

submits that the High Court expressly found that the procedure followed

by the magistrates was not "prescribed by law", and considers that the

decision of the High Court is in any event - in the absence of any

mechanism for bringing proceedings for unlawful detention - in

substance a finding that the detention was not lawful.  He has

submitted two opinions in support of his contentions, from Professor

A.W. Bradley and from Mr. R. Gordon, an author and practising

barrister.  The opinions are in agreement that the magistrates in the

present case acted outside their jurisdiction, and that the applicant's

detention was unlawful.

43.  The Government submit that the detention was "in accordance with

a procedure prescribed by law" in that the procedure was set out in

Regulation 41 of the 1989 Regulations, and that it was "lawful" in that

the magistrates had power to send the applicant to prison if they were

of the opinion that his failure to pay was due to culpable neglect, and

the only complaint is that the statutory criteria were wrongly applied.

They add that the decision of the Divisional Court does not indicate

that the detention was unlawful in domestic law, considering that the

magistrates' order was valid unless and until set aside; that it is not

clear in domestic law whether the setting aside of an order as invalid

will result in the acts done prior to the setting aside becoming

unlawful, and that the Divisional Court in the present case did not

make any order on the judicial review application.  They contend that

if the applicant were to be correct on the alleged unlawfulness then

detention subsequent to any first instance decision would be unlawful

whenever the decision was overturned on appeal.

44.  The main issue to be decided in connection with this complaint

is whether the applicant's detention from 25 March 1991 to 5 April 1991

was "lawful".

45.  The Commission notes that it is a peculiarity of the domestic law

of the United Kingdom that appeals against the decisions of inferior

courts and administrative bodies and tribunals have developed in a way

which frequently combines the question of whether the decision was

right in law with the question whether the body had jurisdiction to

take that decision.  Thus in the case of McC v. Mullan the House of

Lords found that the magistrates' failure to inform the juvenile

defendant of his right to have, or at least to apply for, legal aid was

a breach of a statutory condition precedent to jurisdiction to send him

to a training school.  The magistrates were liable in damages.

Similarly, in R v. Manchester City Magistrates' Court ex parte Davies,

the Court of Appeal found that a proper inquiry as to whether the

ratepayer's failure to pay his rates was due to "wilful refusal or

culpable neglect" was a statutory condition precedent to the issue of

a committal warrant for non-payment of rates.  The magistrates were

again liable in damages.

46.  In the present case the applicant initially made his appeal by

way of case stated, and made an application for leave for judicial

review only in order to be able to put his bail application before the

High Court as soon as possible.  This approach was vindicated by the

Divisional Court which commented on the unsatisfactory nature of the

bail procedure, and dealt only with the appeal by way of case stated.

The principles which can be drawn from the cases referred to above

remain relevant for the present case, as Section 111 of the

Magistrates' Court Act 1980 provides that a case may be stated where

allegations are made that the decision was "wrong in law or is in

excess of jurisdiction".

47.  If detention is to be lawful, including the observance of a

procedure prescribed by law, it must essentially comply with national

law and the substantive and procedural rules thereof (see, in the

context of Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court H.R.,

Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 21,

para. 63; similar criteria were applied to detention within the meaning

of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court H.R., Weeks

judgment of 2 March 1987, Series A no. 114, p. 22, para. 41).

48.  Although the domestic courts in the present case did not make a

formal finding that the applicant's detention was in excess of

jurisdiction and therefore unlawful - indeed, in the light of the

restriction on actions against magistrates brought about by Section 108

of the Courts and Legal Services Act 1989 there was no scope for such

a determination - the Commission finds that the weight of argument

before it tends to the view that, in domestic law, the applicant's

detention was not lawful.

49.  Finally in this respect, the Commission recalls that the

Convention imposes requirements over and above the substantive and

procedural rules of national law in ascertaining the compatibility of

deprivation of liberty with Article 5 (Art. 5), namely that the

individual must be protected from arbitrariness (cf, in the context of

detention under Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court H.R.,

van der Leer judgment of 21 February 1990, Series A no. 170, p. 12,

para. 22 with further references).  In the present case,

notwithstanding the requirements of the 1989 Regulations, the

magistrates failed to conduct an adequate inquiry into whether the

applicant's failure to pay his community charge was due to culpable

neglect, and so an important condition precedent to the power to make

a committal warrant was lacking.

50.  The Commission therefore finds that the applicant's detention was

not "lawful" within the meaning of Article 5 para. 1 (Art. 5-1) of the

Convention.

51.  In these circumstances, the Commission does not find it necessary

to determine under which head of Article 5 para. 1 (Art. 5-1), if any,

the applicant's detention fell.

     CONCLUSION

52.  The Commission concludes, by 12 votes to 6, that there has been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention.

D.   As regards Article 5 para. 5 (Art. 5-5) of the Convention

53.  Article 5 para. 5 (Art. 5-5) of the Convention provides as

follows:

     "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."

54.  The applicant considers that the effect of the Divisional Court's

judgment in the present case is to amount to a decision that his

detention was unlawful, and that Section 108 of the Courts and Legal

Services Act 1989 deprived him of a right to sue for unlawful

imprisonment in respect thereof.

55.  The Government's primary submission in this respect is that there

was no violation of Article 5 para. 1 (Art. 5-1) as the detention was

not unlawful, such that Article 5 para. 5 (Art. 5-5) does not require

a right to compensation in respect thereof.  They also submit that the

intention of Section 108 of the Courts and Legal Services Act is to put

magistrates in the same position as judges of the superior courts,

namely that they are immune from actions for damages done in their

judicial capacity in good faith, even though they act mistakenly or in

excess of their powers.

56.  The Commission is not called on in the present case to consider

the merits of judicial immunity from suit.  Rather, the question under

Article 5 para. 5 (Art. 5-5) of the Convention arises because of the

finding of a violation of Article 5 para. 1 (Art. 5-1).

57.  It is not suggested in the present case that the applicant was

or is able to bring any proceedings in which he can make an enforceable

claim for compensation.  Accordingly, given the Commission's finding

that there has been a violation of Article 5 para. 1 (Art. 5-1) of the

Convention, there has also been a violation of Article 5 para. 5

(Art. 5-5).

     CONCLUSION

58.  The Commission concludes, by 17 votes to 1, that there has been

a violation of Article 5 para. 5 (Art. 5-5) of the Convention.

E.   As regards Article 6 (Art. 6) of the Convention

59.  Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

     "1.  In the determination of his civil rights and obligations or

     of any criminal charge against him, everyone is entitled to a

     fair and public hearing ...

     3.   Everyone charged with a criminal offence has the following

     minimum rights:

     ...

     (c)  to defend himself in person or through legal

     assistance of his own choosing or, if he has not sufficient means

     to pay for legal assistance, to be given it free when the

     interests of justice so require ..."

60.  The applicant submits that the absence of legal aid before the

magistrates in making the warrant for the applicant's committal to

prison for 30 days was in violation of Article 6 (Art. 6).  He

considers that, given the nature of the proceedings and the "penalty"

at stake, the proceedings were in fact criminal in character, such that

Article 6 para. 3 (c) (Art. 6-3-c) required legal aid to be available.

He further considers that, even if the proceedings are not criminal but

are civil in character, their complexity and importance call for legal

aid to be afforded under Article 6 para. 1 (art. 6-1) of the

Convention.  He points out that assistance by way of representation is

purely discretionary and requires an initiative by the court rather

than the person concerned, and that the Green Form scheme does not

provide for representation in court at all.

61.  The Government submit that the proceedings were not "criminal"

within the meaning of Article 6 para. 1 (art. 6-1).  They point out

that the detention was for failure to comply with a civil liability

order, and that such detention does not lead to a criminal record.

They consider that the applicant's detention was justified under

Article 5 para. 1 (b) (Art. 5-1-b) of the Convention, which recognises

the possibility of non-criminal detention, rather than Article 5

para. 1 (a) (Art. 5-1-a).  The Government refer to the case of R v.

Highbury Court Magistrates ex parte Watkins, where Mr.  Justice Henry

explained that "the proceedings under Regulation 41 are plainly legal

proceedings other than criminal proceedings.  They are proceedings for

the recovery of an unpaid tax.  Answers to the inquiry as to means and

as to why the debtor has not paid her tax do not expose her to

proceedings for 'an offence' because it is no crime not to pay your

poll tax: that is not a criminal offence any more than non-payment of

rates ... was in its time any offence ... .   While imprisonment is

punishment, and so in that sense penal, the meaning of 'penalty' in the

statute and rule is quite clear from the authorities and is something

in the nature of a fine provided for by statute ..."

62.  The Government further submit that, although the liability order

made against the applicant on 21 August 1990 determined his civil

rights and obligations, the proceedings on 25 March 1991 were simply

to enforce that obligation.

63.  The Government consider that, even if the proceedings were

"criminal" or "civil" within the meaning of Article 6 (Art. 6), the

availability of Green Form assistance and assistance by way of

representation together meet the requirements of whichever part of

Article 6 (Art. 6) is found to apply.

64.  The Commission recalls that the guarantees of Article 6

para. 3 (c) (Art. 6-3-c) apply only to a person "charged with a

criminal offence".  The case law relating to the phrase "criminal

charge" within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention establishes that the offence need not be one known to

domestic law, as the phrase has a meaning autonomous of the intentions

of the contracting States (see, for example, Eur. Court H.R., Engel

judgment of 8 June 1979, Series A no. 22, pp. 34 - 35, paras. 81 - 82;

von Sydow v. Sweden, No. 11464/85, Dec. 12.5.87, D.R. 53, p. 85; Eur.

Court H.R., Weber judgment of 22 May 1990, Series A no. 177,

pp. 17 - 18, paras. 30 - 35).

65.  A first criterion is the nature of the matter in domestic law.

In the present case, domestic law appears not to regard the inquiry

stage of proceedings to enforce a liability order as criminal because,

as Mr. Justice Henry said in the case of ex parte Watkins, "it is no

crime not to pay your poll tax".

66.  A second criterion is the nature of the offence.  The "offence"

in the present case, if it is an offence, is failure to pay the

community charge.  The community charge was a form of tax on

occupation, and failure to pay it is a matter which can be pursued by

the authorities, in this case the local authority.  Tax enforcement

proceedings with a punitive element have been considered by the

Convention organs as falling within the meaning of a "criminal charge"

for the purposes of Article 6 (Art. 6) (Eur. Court H.R., Bendenoun

judgment of 24 February 1994, Series A no. 284, paras. 45 - 47).

67.  A third criterion is the severity of the penalty imposable and

imposed.  The magistrates had power to order the applicant's committal

for up to three months, and did order his committal for 30 days.  The

Commission considers that this alone would be sufficiently important

to warrant classifying the "offence" with which the applicant was

charged as a criminal one under the Convention.

68.  Accordingly, Article 6 para. 3 (c) (Art. 6-3-c) is applicable in

this case.

69.  It has not been suggested that the applicant had "sufficient

means to pay for legal assistance"; the sole issue under this paragraph

is therefore whether the "interests of justice" required that he be

given such assistance free.

70.  The Commission notes that there exist in England and Wales two

forms of assistance for persons in the applicant's position.  First,

the Green Form scheme provides for a limited amount of advice from a

solicitor, but does not permit representation before a tribunal.  The

Commission finds that such assistance, whilst it may be a help in

certain circumstances, cannot constitute the assistance required of

Article 6 para. 3 (c) (Art. 6-3-c), which by its very nature requires

assistance in court at least.

71.  Secondly, assistance by way of representation ("ABWOR") enables

a solicitor who happens to be in court to be called on to assist a

party to proceedings before magistrates provided the solicitor was not

in court for that very purpose, provided the magistrates consider that

the proceedings should proceed the same day, and provided the

magistrates consider that they wish to have the assistance of a

solicitor under the ABWOR scheme.  The Commission notes that the

purpose of ABWOR is to enable magistrates to call on a solicitor who

happens to be in court if they feel they need his assistance.  It is

not for a defendant to request representation under ABWOR, and an

unrepresented defendant will not generally be told of the existence of

the scheme.  The applicant was not so told.  A solicitor who represents

under the ABWOR scheme is not aware of the background to the case, and

may not be familiar with the law involved.  The Commission finds that,

although the Commission cannot exclude that where ABWOR is granted it

could satisfy the requirements of Article 6 para. 3 (c) (art. 6-3-c),

in the present case the mere existence of the scheme cannot satisfy

those requirements.

72.  The applicant did not, then, have the benefit or the possibility

of free legal assistance before the magistrates on 25 March 1991.  The

question remains whether the "interests of justice" required such

assistance.

73.  The Commission notes, as the Government submit, that the only

issues before the magistrates were the applicant's means and the

reasons for his inability to pay.  However, whilst the question of his

means may have been a relatively straightforward matter of fact, the

question of the reasons for his inability to pay was not.  Questions

of what constituted wilful refusal or culpable neglect were far from

simple, as can be seen from the case of Davies.  Indeed, the

magistrates themselves erred in the present case, as the Divisional

Court later held.  Moreover, as the Commission has found above, the

finding of wilful refusal or culpable neglect had a crucial bearing on

the magistrates' ability to order a warrant for committal.

74.  The Commission further considers that where immediate deprivation

of liberty is at stake in criminal proceedings, the interests of

justice in principle call for legal representation. The Commission

notes that, although legal aid was only available at subsequent stages

of the proceedings, the committal warrant had immediate effect: if the

order had been suspended pending the outcome of any appeal,

considerably less would have been at stake.  The Commission attaches

little weight to the fact that at the bail application on 28 March 1991

the applicant was represented, as once the magistrates had made their

order it was not likely that they would change their minds on a bail

application.

75.  To sum up, on 25 March 1991, the magistrates had before them

legal questions of considerable complexity, and an immediate order of

imprisonment was at stake and was made.

76.  In these circumstances, the Commission finds that the interests

of justice required legal assistance to be afforded to the applicant.

     CONCLUSION

77.  The Commission concludes, by 15 votes to 3, that there has been

a violation of Article 6 para. 3 (c) (art. 6-3-c) of the Convention.

F.   Recapitulation

78.  The Commission concludes, by 12 votes to 6, that there has been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention

(para. 52).

79.  The Commission concludes, by 17 votes to 1, that there has been

a violation of Article 5 para. 5 (Art. 5-5) of the Convention

(para. 58).

80.  The Commission concludes, by 15 votes to 3, that there has been

a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

(para. 77).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                 (Or. English)

              CONCURRING OPINION OF MR. N. BRATZA

     With some hesitation I have voted in favour of the Commission's

conclusion that there has been a violation of Article 5 para. 1 of the

Convention in the present case.  My doubts have related to the issue

of whether the detention of the applicant was "in accordance with a

procedure prescribed by law" and "lawful" within the meaning of

para. 1(a) or 1(b) or Article 5.  (I share the view of the Commission

that it is unnecessary to decide which of the two sub-paragraphs is

relevant to the applicant's detention in the present case, although I

tend to the view that para. 1 (b) is the more relevant paragraph, the

detention being imposed either for non-compliance with the lawful order

of a court, namely the liability order made against the applicant by

Poole Magistrates' Court on 21 August 1990, or more probably to secure

the fulfilment of the applicant's legal obligation to pay the community

charge.)

     It is well established that the words "lawful" and "prescribed

by law" in Article 5 essentially refer back to domestic law and require

that the deprivation of liberty complies with both the substantive and

procedural requirements of that law.  It is also, however, clear that

the fact that a conviction resulting in the imposition of a custodial

sentence is quashed on appeal does not of itself deprive the detention

of its "lawful" character for the purposes of para. 1 (a) (see e.g. the

Commission's Report of 9 March 1978, Krycki v. Federal Republic of

Germany DR 13 p. 57).  The same must in my view be true in the case of

detention under para. 1 (b) of the Article:  the mere fact that an

order of a court requiring or authorising the detention of an

individual for non-compliance with its order, or to secure the

fulfilment of a legal obligation, is quashed on appeal or in

proceedings by way of judicial review does not of itself mean that the

person's detention was unlawful.

     Whether, in such circumstances, the detention is to be treated

as "lawful" for the purposes of either sub-paragraph of the Article

depends on the grounds on which the conviction is quashed or the order

for detention set aside.  If in convicting a person or ordering his

detention the court acted without jurisdiction or exceeded its proper

jurisdiction (as for instance where a court of inferior jurisdiction

convicts an individual of a crime which is triable only by a superior

court or imposes a sentence of imprisonment for an offence which is

only punishable by a fine) the position is clear enough:  the resulting

detention is not "lawful".  More problematic, however, is the case

where the court imposing the sentence or making the order for detention

misdirects itself as to the law or reaches a conclusion to convict or

detain which cannot be sustained on the evidence before it.  It seems

to me that in principle the detention resulting from the court's order

remains "lawful", notwithstanding the fact that the order is quashed

on appeal.

     The position is made the more difficult by the distinction which

is drawn in English administrative law between jurisdictional error

(that is, an error of law vitiating the jurisdiction of a court or

tribunal) and an error of law within the jurisdiction of the court or

tribunal.  The distinction is often a fine one, not least because of

the extended meaning given by the courts to the word "jurisdiction" in

this context, as exemplified by the decision of the House of Lords in

Anisminic Limited v. the Foreign Compensation Commission [1969]

2 AC 147.

     In McC v Mullan [1985] AC 528 the House of Lords rejected this

extended test of jurisdiction as being inappropriate when determining

whether magistrates were civilly liable in damages under Section 45 of

the Justices of the Peace Act 1979 (or its equivalent in Northern

Ireland) for acts done "without jurisdiction or in excess of

jurisdiction".  It was held that for these purposes the word

"jurisdiction" should be given a more restricted meaning and that civil

liability would only attach to magistrates if it were shown

     (i)  that the magistrates had no "jurisdiction of the cause",

          that is that the court had no power to entertain the

          proceedings at all or to impose the sentence or make the

          order in question; or

     (ii) that in the course of hearing a case within their

          jurisdiction the magistrates were "guilty of some gross and

          obvious irregularity of procedure" (as, for example, a

          grave breach of the rules of natural justice); or

     (iii)that the sentence or order of the court was not based on any

          proper foundation in law because of a failure on the part

          of the court to fulfil a statutory condition precedent to

          the imposition of the sentence or the making of the order.

     In my view it is only in cases falling into one of these three

categories that detention pursuant to an order of a magistrates' court

may be said to be "unlawful" for the purposes of Article 5 (1).

     In the present case neither of the first two categories would

appear to be applicable.  The Magistrates' Court clearly had

"jurisdiction of the cause", in the sense of having power to entertain

the complaint and to make an appropriate order in respect of the

complaint.  Further, there was in my view no gross or obvious

irregularity of procedure of the kind envisaged by the House of Lords

in McC v Mullan.

     The essential question is whether there was in the present case

a want of jurisdiction on the part of the Magistrates' Court by reason

of a failure to fulfil a statutory condition precedent to the making

of an order for detention.

     The test of what constitutes such a failure is itself difficult

to apply.  In the context of the Community Charge Regulations, it

requires in my view a distinction to be drawn between a case where

magistrates have not carried out any inquiry under Regulation 41 or

have addressed themselves to the wrong inquiry and a case where

magistrates have carried out an inquiry as required by the Regulation

but have arrived at the wrong legal conclusion on the evidence before

them.  It seems to me that in the former case only would an order for

detention be made without jurisdiction.

     As the Commission has correctly noted, the Divisional Court in

the present case did not make an express finding that the applicant's

detention was in excess of jurisdiction on this ground or that it was

otherwise unlawful;  indeed, having regard to the nature of the

proceedings before the Divisional Court there was neither need nor

scope for any such finding.  The applicant contends nevertheless that

such a finding is implicit in the Divisional Court's reasoning and

relies on the express finding of the Court of Appeal to this effect in

the case of R v. Manchester City Magistrates' Court, ex parte Davies

[1989] 1 All ER 30, which is claimed to be in all material respects

indistinguishable from the present case.

     In the Davies case the majority of the Court of Appeal found that

the magistrates had in fact failed to carry out any inquiry, as

required by the relevant statute, as to whether the applicant's failure

to pay was due to culpable neglect or not.  Such inquiry as they did

carry out was directed, as the Court of Appeal held, to finding an

answer to the wrong question:  it was directed not to the question

whether the applicant's failure to pay was due to culpable neglect, but

to the question whether the applicant had unreasonably failed to accept

the professional advice given to him and as a result had worsened his

financial position.

     It was for this reason that the majority of the Court of Appeal

held that there had been a failure to comply with a statutory condition

precedent to ordering the applicant's detention.  The division of

opinion within the Court of Appeal nevertheless illustrates the

difficulty in drawing the line.  In his dissenting judgment

Sir Roger Ormrod expressed the view that the statutory condition

precedent test was not a sufficiently sensitive criterion for

distinguishing between errors of law which were amenable to correction

on appeal or judicial review only, and errors of law which deprived

magistrates of their "jurisdiction" and destroyed the protection of

section 44 of the 1979 Act.  In his opinion the decision of the

magistrates fell into the former category:  the decision was open to

challenge on judicial review on the grounds that there was no evidence

on which the magistrates could have found that the applicant's failure

to pay rates was due either to his wilful refusal or culpable neglect,

but this was not sufficient to deprive the magistrates of jurisdiction

for the purpose of the 1979 Act.

     In the present case, in contrast to the Davies case, the

Magistrates clearly did carry out some inquiry as to whether the

applicant's failure to pay was the result of culpable neglect on his

part and formed the opinion that it was, since the applicant "clearly

had the potential to earn money to discharge his obligation to pay".

The Divisional Court held that "this finding was wrong on the evidence

available to the justices".

     On one view of the judgment, the Divisional Court was doing no

more than to hold that the Magistrates arrived at the wrong finding on

the evidence before them.  If this were all the Divisional Court was

deciding, this would not amount in my view to a failure on the

Magistrates' part to comply with a statutory condition precedent.

     However, I consider that on the true analysis of the judgment the

Divisional Court was doing more.  The Court held in effect that the

Magistrates had applied the wrong test of what was "culpable neglect":

contrary to the view of the Magistrates, the requirement of showing

"culpable neglect" required more than mere proof of the applicant's

potential to work and to earn money to discharge his obligation to pay:

it required at very least clear evidence that gainful employment was

offered and refused by the debtor and there was no such evidence in the

present case.

     In these circumstances, although the case is not in my view as

clear or as strong as the Davies case, I consider on balance that the

Magistrates failed to apply the correct test in conducting their

inquiry and failed to fulfil a statutory condition precedent to

ordering the detention of the applicant.  Accordingly, the order of the

Magistrates was made without jurisdiction as a matter of domestic law

and the detention of the applicant was "unlawful" for the purposes of

paras. 1 (a) or 1 (b) of Article 5.

     The question remains whether it is necessary for the Commission

formally to find a breach of Article 5, para. 1 where the domestic

court has already in substance found such a breach and ordered the

applicant's release.  There is, I consider, force in the view advanced

by certain members of the Commission that the real complaint in this

case concerns Article 5, para. 5 and the absence of compensation in

respect of the wrongful detention of the applicant and that, where a

breach of para. 1 has been established by a national court either

expressly or in substance, it is neither necessary nor appropriate for

the Convention organs to make a separate finding of a breach of

para. 1:  the domestic court's own decision affords a sufficient basis

for the Commission to find a violation of Article 5 para. 5 (see e.g.

No. 6821/74, Dec. 5.7.76 Huber v. Austria, D.R. 6 p. 65).

     However, on balance, I consider that it is necessary for the

Commission formally to find a breach of Article 5 para. 1 in the

present case.  While such a finding would be unnecessary if the

domestic court had clearly held the detention to be "unlawful", as that

term is to be understood in paragraph 1, where as in the present case

the matter is not clear, an express finding of a contravention of

paragraph 1 by the Convention organs is in my view called for.

     It is not suggested that, since the passing of the 1989 Act, the

applicant has had any enforceable right to compensation in respect of

his "unlawful detention".  Accordingly, there has in my view also been

a violation of Article 5 para. 5 of the Convention.

     I also agree with the conclusion and reasoning of the majority

of the Commission that there has been a violation of

Article 6 para. 3 (c) of the Convention by reason of the failure to

afford legal assistance to the applicant.

                                                 (Or. English)

         PARTIALLY CONCURRING AND PARTIALLY DISSENTING

                OPINION OF Mr. H. G. SCHERMERS

     Although in broadly agreement with the majority of the Commission

I have difficulty in accepting that the warrant for the applicant's

committal to prison for 30 days was of a criminal nature.  In paras.

64-67 of the Report it is stated that tax enforcement proceedings with

a punitive element should be considered as falling within the meaning

of a "criminal charge" for the purpose of Article 6.  I am not

convinced that this is what the Commission is faced with here.  In the

Bendenoun judgment the Court accepts the position, which the Commission

had taken before, that a tax surcharge or a tax penalty must be seen

as a criminal charge.  This, however, concerns a kind of fine imposed

as a punishment for tax evasion.  In the present case, however, there

is no question of any such punitive element.  The detention of the

applicant was meant solely as an enforcement measure.  As Article 5

para. 1 (b) expressly permits detention in order to secure the

fulfilment of an obligation prescribed by law, I find it difficult to

accept that the detention alone would be sufficiently important to

warrant classifying the "offence" with which the applicant was charged

as a criminal one under the Convention.  In my opinion, the detention

was covered by Article 5 para. 1 (b) and not by Article 5 para. 1 (c).

As there was no criminal offence, the Government's obligation to

provide legal aid under Article 6 para. 3 (c) did not apply.

     By analogy to the Airey Case I would be prepared to accept that

legal assistance could be required under Article 6 para. 1 as an

element of access to Court when complicated questions of law arise in

a case under Article 5 para. 1 (b).  Everyone should be protected

against detention which is insufficiently justified.  In Airey the

court makes clear that Article 6 para. 1 could compel the state to

provide for legal assistance of a lawyer when such assistance proves

indispensable for an effective access to court.  In the present case,

however, the need for legal assistance is insufficiently demonstrated.

     Therefore, I do not agree that Article 6 has been infringed.

                                                 (Or. English)

         PARTIALLY CONCURRING AND PARTIALLY DISSENTING

  OPINION OF MRS. G. H. THUNE joined by MR. I. CABRAL BARRETO

     I have voted for a violation of Article 5 para. 5, but have not

found a violation of Article 5 para. 1.

     The applicant was initially detained on the basis of a decision

by the Poole Magistrates' Court.  On appeal the Divisional Court found

that the previous decision lacked sufficient legal support under

English law and accordingly ordered the applicant's release.

     It is true that the Divisional Court did not explicitly address

the question of lawfulness in relation to Article 5 para. 1 of the

Convention.  It did however, carefully consider whether the decision

to detain had a sufficient legal basis in English law.

     The interpretation and application of national law is mainly the

responsibility of national courts, the task of the Convention organ

being of a supervisory nature.

     The intention and structure of Article 5 is such that it calls

for a possibility for review of the lawfulness (Article 5 para. 4) of

detention at national level. This was in fact what was provided for in

the applicant's case.  He was able to challenge the legal basis for his

detention and was even successful in doing so.

     It would in my view undermine the idea of Article 5 para. 4 if

the Convention organs were to disregard the conclusions by the

Divisional Court by making their own assessment of whether or not the

original decision to detain was lawful, i.e. complied with English law.

     Accordingly, I find the decision by the Divisional Court a

sufficient ground for a right to compensation under Article 5 para. 5

     I consider this to be consistent with the case-law referred to

by Mr. Marxer in his dissenting opinion, and have accordingly voted in

favour of finding a violation of Article 5 para. 5.

                                                 (Or. English)

         PARTIALLY CONCURRING AND PARTIALLY DISSENTING

                   OPINION OF Mr. B. MARXER

     It is established in the case-law that the Convention organs may

find a violation of Article 5 para. 5 where the domestic authorities,

directly or in substance, find a violation of Article 5 paras. 1 - 4

of the Convention (Huber v. Austria, No. 6821/74, Dec. 5.7.76, D.R. 6

p. 65, at p. 69).  It is true that the Divisional Court in this case

could not find a violation of Article 5 para. 1 of the Convention

because the Convention is not incorporated into domestic law, and that

it did not expressly find that the applicant's detention was unlawful

in domestic law because the nature of the appeal in question did not

allow for such a finding.

     In such a case it is inevitably difficult for the Convention

organs to establish whether the detention was lawful in domestic or

Convention terms.  The majority of the Commission has approached the

question as going to lawfulness under Article 5 para. 1 of the

Convention.  In a case such as the present, where the applicant was

successful in his challenge to the decision to detain him, I prefer to

approach the question on the basis that - given the domestic law

background which is so well explained in Mr. Bratza's concurring

opinion - the Divisional Court's judgment was substantially a

declaration that the applicant's detention was unlawful in domestic

law.

     Accordingly, I conclude that there was a violation of Article 5

para. 5 because the applicant had no enforceable right to compensation

in respect of the unlawful detention be suffered.  The applicant's

claim under Article 5 para. 1 does not have to be answered by the

Commission, as he had, in effect, a domestic finding of unlawfulness.

He may still claim under Article 5 para. 5, however, because the

Divisional Court's findings do not go as far as redressing the wrong

the Court found.

                                                  (Or. French)

               OPINION DISSIDENTE DE M. MARTINEZ

I.   J'ai voté contre la violation de l'article 5 par. 1 de la

Convention.

     En dépit des particularités du droit anglais et des subtilités

dans le raisonnement de la Commission pour aboutir à la violation de

ladite disposition de la Convention, je crois devoir dire que ce qui

s'est passé me parait très simple.

     Le 21 août 1990, la Poole Magistrates' Court ordonna la détention

du requérant pour une durée de 30 jours, considérant que celle-ci était

conforme à la loi. La Divisional Court, en tant que juridiction

d'appel, infirma l'ordonnance de la Magistrates' Court en estimant que

celle-ci avait fait une application erronée de la loi.

     Je n'arrive pas à discerner une violation de la Convention dans

le seul fait que la juridiction de premier degré et la juridiction

d'appel ont eu des vues différentes quant à l'application de la loi

interne, même lorsque la liberté d'une personne est en jeu.  En effet,

c'est une situation qui se produit fréquemment et dans tous les Etats

sans que quiconque ne "crie" à la violation des droits de l'homme.

     Quel est l'acte susceptible d'être considéré comme contraire au

droit à la liberté du requérant ? La décision de la Magistrates' Court

? Si tel est le cas, la Divisional Court a réglé le problème dans

l'ordre juridique interne.  Et c'est bien ce qu'exige la Convention,

qui donne aux Etats membres la possibilité de remédier dans leur ordre

juridique interne à toute violation des droits protégés.

     N'oublions pas que la Convention repose sur le principe de la

subsidiarité d'où la nécessité, pour le requérant, d'épuiser les voies

de recours internes (article 26), ainsi que l'obligation, pour les

Etats, de prévoir un recours effectif devant une instance nationale

(article 13).

     Au paragraphe 50 de son rapport, la Commission exprime l'avis que

la détention du requérant n'était pas "lawful". Mais il me semble que

même en cas de détention illégale, l'article 5 par. 4 de la Convention

n'entraîne pas la responsabilité de l'Etat quand un tribunal constate

"à bref délai" l'illégalité et ordonne la mise en liberté.

II.  J'ai voté pour la violation de l'article 5 par. 5, mais je ne

saurais accepter que cela puisse constituer la conséquence d'une

violation de l'article 5 par. 1, violation qui, à mon sens, n'existe

pas.

     Je suis d'avis que le texte de l'article 5 par. 5 n'exige pas

qu'une violation soit constatée. Pour moi, il suffit que le requérant

ait fait l'objet d'une détention illégale entre le 25 mars 1991 et le

5 avril 1991 et que le droit interne ne permette pas la réparation.

III. Enfin, j'ai voté contre la violation de l'article 6 de la

Convention.

     Il me semble que la Commission fait le procès du droit

britannique par le seul fait qu'il ne saurait prévoir une assistance

judiciaire complète de l'intéressé par un "solicitor" pour la

comparution devant les "magistrates", lorsque ceux-ci convoquent une

personne qui ne paie pas la taxe locale pour se renseigner sur ses

moyens financiers et sur les raisons de son incapacité de payer.

     En fait, lors de la décision ordonnant la privation de liberté

du requérant, un "solicitor" est intervenu dans la procédure jusqu'à

ce que la juridiction d'appel eût annulé l'ordre d'emprisonnement.

     Le requérant n'a donc souffert d'aucune atteinte aux droits de

la défense susceptible d'entraîner la violation de l'article 6 de la

Convention.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

20 September 1991        Introduction of application

21 January 1992          Registration of application

Examination of admissibility

12 October 1992          Commission's decision to communicate the

                         case to the respondent Government and to

                         invite the parties to submit observations

                         on admissibility and merits

17 February 1993         Government's observations

8 April 1993             Commission's grant of legal aid

13 May 1993              Applicant's observations in reply

30 August 1993           Commission's decision to hold a hearing

                         Hearing on admissibility and merits, the

                         parties being represented as follows :

                         Government :

                                        Mrs. A. Glover, Agent

                                        Mr. D. Pannick, Q.C., Counsel

                                        Ms. A. Jenkins and

                                        Ms. E. Hutchinson, Advisors

                         Applicant :

                                        Mr. J. Wadham, Liberty

                                        Mr. B. Emmerson, Counsel

13 January 1994          Commission's decision to declare the

                         application admissible

Examination of the merits

26 January 1994          Decision on admissibility transmitted to

                         parties. Invitation to parties to submit

                         further observations on the merits

14 May 1994              Commission's consideration of state of

                         proceedings

15 October 1994          Commission's consideration of state of

                         proceedings

29 November 1994         Commission's deliberations on the merits,

                         final vote and adoption of Report.

 

Full & Egal Universal Law Academy