AS TO THE ADMISSIBILITY OF
Application No. 25283/94 Application No. 25690/94
by M. C. by John DEARY
against the United Kingdom against the United Kingdom
Application No. 28457/95
by Doreen CLARK
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
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 applications introduced on 12 July 1994,
26 October 1994 and 24 August 1995 by M. C., John DEARY and Doreen
CLARK against the United Kingdom and registered on 23 September 1994,
17 November 1994 and 6 September 1995 under files Nos. 25283/94,
25690/94 and 28457/95 respectively;
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 1994 and the observations in reply submitted by the
applicants on 10 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are United Kingdom citizens. Before the
Commission they are represented by Clyde, Chappell and Botham,
solicitors practising in Stoke-on-Trent.
The facts, as presented by the parties, may be summarised as
follows.
A. Particular circumstances of the cases
a. Application No. 25283/94
In October 1990 and August 1991, the Newcastle-under-Lyme
Magistrates' Court ordered the issue of a liability order in respect
of the applicant's unpaid community charge (poll tax).
On 8 September 1992, 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 poll tax. The applicant, who was not
represented, gave evidence that:
(a) he had been made redundant from his last employment in 1989;
(b) since then he had lived on Income Support of some £42 per
week;
(b) he paid his father £40 per week for board and lodging and the
balance of his income went to maintain a life insurance policy
which he had taken out while employed.
However, the magistrates considered that the applicant in fact
had disposable income and ought to have made an offer of payment. They
concluded that the applicant's failure to pay the community charge was
due to his wilful refusal and issued a warrant committing him to prison
for 30 days.
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
included a claim for damages.
The application for judicial review was heard in the High Court
on 13 January 1994. The applicant was represented and had legal aid
for these proceedings. Mr Justice Dyson observed that the purpose of
the community charge legislation was to secure the collection of local
taxes; the High Court had in similar cases emphasised that imprisonment
was to be used as means of extracting payment and not as a punishment.
He pointed out, however, that the High Court had in one cited case said
that the extraction of payment was not the sole purpose of
imprisonment. By failing to give adequate consideration to alternatives
to immediate imprisonment - in particular, the imposition of a
suspended term of imprisonment - the magistrates failed to have regard
to the purpose of the legislation. The decision to pass an immediate
custodial sentence of the first occasion was "plainly perverse and
wrong".
The judge quashed the magistrates' decision of 8 September 1992
and found the decision to commit unlawful. He remitted the matter to
the magistrates' court for reconsideration. He made a partial award
of costs against the magistrates (on the limited basis that they should
have consented to the application for judicial review before the
hearing) but did not address the claim for damages. The applicant has
not pursued his claim for damages on the basis of counsel's opinion
that it would be impossible to establish the requisite element of "bad
faith" on the part of the magistrates.
b. Application No. 25690/94
At the relevant time the applicant was a hospital employee
earning £130 per week, on which he was supporting his family.
On 4 November 1993 the local Magistrates' Court committed the
applicant to 28 days in prison for failure to pay community charge.
His offer to clear his community charge arrears at the rate of £10 per
month was declined as it would have taken too long to discharge the
obligation. The applicant was not legally represented at the committal
proceedings.
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 7 June 1994 the motion for judicial review was allowed and the
Magistrates' committal order quashed. The judgment stated, inter alia:
"When the justices considered the offer of £10 per month
they ought to have considered whether this was a reasonable
amount, bearing in mind the applicant's means, or whether in
their judgment he had means to pay more. Since the purpose of
their powers was to secure the payment of the debt, it was an
irrelevant consideration as to how long it would take to pay ...
[T]he approach of the justices was flawed as a matter of law and
certiorari should lie. ... [T]he purpose of the powers of the
court under Regulation 41 are not powers of punishment for past
misdeeds, but powers to ensure future payment of past
liabilities. Accordingly I have no hesitation in determining
that the justices' approach on this occasion was flawed."
c. Application No. 28457/95
At the relevant time the applicant was unemployed, had no income
and was dependent on her husband, who was in full time employment.
On 30 November 1994 the local Magistrates' Court committed the
applicant to 14 days in prison for failure to pay community charge.
At that time the applicant was ill. She informed the Court about this
by presenting a doctor's letter. The applicant was not legally
represented at the committal proceedings.
The applicant served 2 days in prison. She applied for, and was
granted, release on bail and leave to apply for judicial review before
the High Court.
In the judicial review proceedings all parties agreed to settle
the matter. On 16 March 1995 the High Court delivered a consent order
quashing the applicant's committal to prison. The grounds of the
consent order read, inter alia:
"The justices were unreasonable in that they failed to have
proper regard to the purpose of the imprisonment in such cases,
in that prison should be used as a means of coercing payment
rather than punishment, in particular having regard to the
inability of the applicant to discharge her debt."
B. Relevant domestic law and practice
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 ex parte Mould (1992), Kennedy LJ stated inter alia:
"The power to commit to prison which is to be found in
[Regulation] 41 is plainly intended to be used as a weapon to
extract payment rather than to punish... If a debtor currently
has no money and no real prospects of obtaining any, custody can
only punish and it will stand in the way of any subsequent
attempt to recover the sum which is owed."
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.
Neither the civil nor the criminal legal aid scheme provides for
full representation before the magistrates in community charge
commitment proceedings. The "Green Form" scheme provides two hours'
worth of help from a solicitor, and can include preparation for a court
case, but does not provide for representation. An extension of the
costs limit can be granted by the Legal Aid Board. Assistance by way
of Representation ("ABWOR") enables the court, in limited
circumstances, to appoint a solicitor who happens to be within the
court precincts for purposes other than the provision of ABWOR to
represent a party who would not otherwise be represented. The
appointment may be made either of the court's own motion or on
application by a solicitor. The court is under no obligation to advise
a party of the possibility of an appointment. The Duty Solicitor
Scheme, which provides representation to accused in criminal cases
before magistrates, does not extend to community charge proceedings.
COMPLAINTS
The applicants complain that their detention was contrary to
Article 5 para. 1 of the Convention and that, in breach of para. 5 of
this provision, they could not receive compensation.
Under Article 6 paras. 1 and 3(c) of the Convention the
applicants submit that legal aid was not available and they were not
legally represented before the Magistrates' Courts which committed them
to prison.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 25283/94 was introduced on 12 July 1994 and was
registered on 23 September 1994. Application No. 25690/94 was
introduced on 26 October 1994 and was registered on 17 November 1994.
Application No. 28457/95 was introduced on 24 August 1995 and was
registered on 6 September 1995.
On 30 November 1994 the Commission communicated to the respondent
Government Application No. 25283/94.
On 28 February 1995 the Commission decided to adjourn the
examination of this application pending the outcome of the case of
Benham v. the United Kingdom before the Court.
On 28 February 1996 and on 15 May 1996 the Commission decided to
communicate to the respondent Government Application No. 25690/94 and
Application No. 28457/95 respectively, without requesting written
observations, pending the outcome of the Benham case.
On 2 July 1996 the Commission invited the respondent Government
to submit written observations on the admissibility and merits of all
applications.
The Government's written observations were submitted on
8 November 1996. The applicants replied on 10 March 1997, after an
extension of the time-limit.
THE LAW
1. The Commission, having regard to the similarities of the
applications, finds it convenient to join them in accordance with
Rule 35 of its Rules of Procedure.
2. The applicants complain that their detention was contrary to
Article 5 para. 1 (Art. 5-1) of the Convention and that, in breach of
para. 5 of this provision, they could not receive compensation.
Article 5 (Art. 5) of the Convention, insofar as relevant,
provides as follows.
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by
law:
...
b. the lawful arrest or detention of a person for non-
compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Government submit that the present applications bear a close
resemblance of Benham v. the United Kingdom (Eur. Court HR, judgment
of 10 June 1996), the existing factual differences being immaterial as
regards the legal outcome.
As regards Application No. 28457/95 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.
Consequently, in the Government's submission, the applicants'
detention was lawful and in accordance with a procedure prescribed by
law and, therefore, compatible 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 applicants reply 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 cases being
distinguishable.
The applicants agree that the orders for their detention were
lawful under domestic law as the magistrates did not act in excess of
jurisdiction. The applicant in Application No. 28457/95 further agrees
with the Government that the use of the "consent order procedure" in
her case does not affect the issues before the Commission.
However, the applicants allege that there have been breaches of
Article 5 para. 1 (Art. 5-1) in that their detention did not fall
within any of the categories of permitted deprivation of liberty in
paras. 1(a) to 1(f) of this provision.
Their detention would have normally fallen under para. 1(b) of
Article 5 (Art. 5-1-b) of the Convention, as imprisonment for failure
to pay community charge is intended to secure the fulfilment of the
obligation to pay the charge. However, the High Court overturned the
imprisonment warrants in the applicants' cases precisely because, on
the facts, there was no prospect that immediate imprisonment would have
a coercive effect. Accordingly, the detention was purely punitive in
character and, therefore, could not have been imposed in order "to
secure the fulfilment of [an] obligation" within the meaning of Article
5 para. 1(b) (Art. 5-1-b) of the Convention.
Therefore, in the applicants' view there have been breaches 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 detention which was contrary to para.
1.
Having examined the applicants' 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 grounds for
declaring it inadmissible have been established.
3. The applicants complain under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that legal aid was not provided
before the Magistrates' Court.
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 these complaints, the Commission finds that they
cannot be regarded as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and that no other
ground for declaring them inadmissible has been established. The
Commission considers that the determination of these complaints should
depend on an examination of the merits.
For these reasons, the Commission,
DECIDES TO JOIN APPLICATIONS Nos. 25283/94, 25690/94 & 28457/95;
unanimously,
DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the
merits of the cases.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy