McANDREW and 10 OTHERS v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 47675/99 and others
by Barbara McANDREW and 10 others
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 October 2003 as a Chamber composed of

MrM. Pellonpää, President,
SirNicolas Bratza,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above applications lodged with the European Court of Human Rights on various dates from 1 April 1999 to 13 February 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicants are United Kingdom nationals. Alan Broadhurst (application no. 69187/01) is represented before the Court by Mr R. Price, a lawyer practising in Sheffield; the remaining applicants are represented by Dicksons HMB Solicitors, lawyers practising in Stoke-on-Trent.

A.  The circumstances of the cases

The facts of the cases, as submitted by the parties, may be summarised as follows.

Each applicant failed to pay sums due in respect of either local taxes (community charge or council tax), or court-imposed fines. In respect of the failure to pay local taxes, the magistrates’ court had in each case determined that the applicants were liable to pay (issuing a “liability order”); in fines cases, the magistrates’ court had imposed the fine as the sentence following a criminal conviction.

Each applicant fell into arrears with the payments due from them. These cases involve the enforcement proceedings in respect of their arrears in the magistrates’ court. Each applicant appeared before the court, following the issuing of an application for their committal to prison as a result of their failure to pay the sums due. At that hearing the magistrates found that the non-payment was due to the applicant’s wilful refusal or culpable neglect. As a result each applicant was sentenced to a period of imprisonment, suspended on terms that the applicant make periodic payments towards the outstanding sum. The applicant failed to comply with the terms imposed. A further hearing was thereafter held in the magistrates’ court at which the suspended term of imprisonment was activated. Each applicant spent a period of time in prison. Legal aid (free legal representation where the applicant did not have sufficient means to pay for it) was not available for these enforcement proceedings prior to 1 June 1997 and none of the applicants were legally represented at the hearings in front of the magistrates.

Following their imprisonment, an application was made on behalf of each applicant, by way of either judicial review or case stated, which resulted in the High Court quashing the orders made by the magistrates. The applicants were released from prison on bail at the time of making their applications to the High Court. In three cases the orders of the magistrates were quashed in a judgment of the High Court. In the remaining cases the orders were quashed following the High Court’s approval of a consent order agreed between the applicants and the magistrates who had sentenced them.

The Court has set out the relevant facts pertaining to each applicant in the table which appears at the end of this decision. That table sets out the following information in respect of each applicant: their name and application number; whether their case involved non-payment of community charge (“CC”), council tax (“CT”) or fines (“F”) and the number of days which they spent in prison; whether their proceedings in the magistrates’ court took place before or after legal aid became available on 1 June 1997; and the grounds upon which the High Court quashed the orders of the magistrates.

Where the orders of the magistrates were quashed following a judgment, the Court has indicated that fact in the table. Where the orders of the magistrates were quashed by means of a consent order, the Court has set out a summary of the terms of the consent order.

Throughout the text of this decision, where there is a reference to a specific applicant, the Court has set out the surname of the applicant followed by their application number in brackets. The words “justices” and “magistrates” are synonymous in domestic law.

The Court sets out the facts of four applications more fully below.

1.  Julie BEET (47676/99)

The applicant’s proceedings before the magistrates arose in respect of her arrears in payment of community charge and took place after 1 June 1997. She spent a total of 2 days in prison. The orders of the magistrates’ court were quashed by the High Court as a result of a consent order in which it was agreed that:

“(i) The decision of the justices that the applicant had culpably neglected to pay her community charge without having conducted a proper inquiry into her circumstances as of the time that the liability became due was unlawful, see R. v. Leeds Justices ex parte Kennett [1996] RVR 53.

(ii) The decision of the justices to issue a sentence of committal to prison and to make an order postponing the issue of the warrant that would have left the threat of imprisonment over her for over 4 years was unlawful having regard to the principles laid down in R. v. Oliver and Oliver [1989] 11 Cr App R(S) 10 and R. v. Ealing Justices ex parte Cloves [1991] RVR 169 and R. v. Newcastle upon Tyne Justices ex parte Devine [1998] RA 97.

(iii) In view of the circumstances of the applicant and [her] detention, and the period of detention served, all parties agreed that the matter be remitted back to the magistrates and that the magistrates, upon reviewing the matter, agreed to remit the outstanding community charge arrears, see Brooke LJ in R. v. St Helens Justices ex parte Jones CO/3328/95.”

In respect of costs, it was further agreed that:

“... in view of the fact that the Hull Justices had acknowledged the same ground in quashing the committal in R. v. Hull Justices ex parte Shawcross (CO/265/98) costs be borne by the respondent justices see R. v. Newcastle upon Tyne Justices ex parte Devine [1998] RA 97.”

2.  Steven DALDRY (58896/00)

The applicant’s application for judicial review was determined by the judgment of Mr Justice Keene in R. v. Gloucestershire Justices ex parte Daldry [2001] RVR 242. The facts as set out in that judgment were that the applicant had a major heart attack in the summer of 1997 leaving him disabled. In the spring of 1998 he appeared before the magistrates as a result of failing to pay arrears of community charge. Three liability orders had been made in respect of amounts due for each of the three years from 1990-1993. The magistrates found the applicant to have wilfully refused or culpably neglected to have paid his community charge for some part of those three years. The justices fixed a term of imprisonment and ordered the applicant to pay £5 per week from his income support, the term being suspended so long as he made those payments.

The applicant failed to keep up with the payments that were due. He was therefore required to attend before the magistrates on 23 July 1998. Some days before that hearing he was given an appointment to see the consultant cardiologist who was going to undertake open-heart surgery on him. Approximately two weeks before the hearing date, the applicant’s wife telephoned the authority responsible for collecting the community charge and told its recovery officer that the applicant had a hospital appointment on 23 July 1998. There was a dispute about what happened during that telephone conversation. According to the applicant, he was told that the matter would be adjourned. However, a letter from the authority’s recovery officer stated that the applicant was told that he must attend court and would be dealt with first in the list. The applicant did not attend court on 23 July 1998. The justices issued a warrant for his committal to prison in his absence. The applicant was imprisoned on 4 December 1998. An application for leave to seek judicial review was made, heard and granted the same day, at which time the applicant was also granted bail.

Mr Justice Keene quashed the spring 1998 decision of the magistrates for the following reasons. First, by reference to regulation 41(3) of the Community Charges (Administration and Enforcement) Regulations 1989 (see below) Mr Justice Keene found that the magistrates had failed to give separate consideration to, and make separate findings in respect of, whether there had been culpable neglect or wilful refusal in respect of each of the three liability orders that had been made against the applicant during the years 1990-1993. In coming to that conclusion, Mr Justice Keene stated that he agreed with the judgment of Mr Justice Owen in the case of R. v. Leeds Justices ex parte Kennett (see below). Secondly, in the circumstances of this case, the judge held that deducting the arrears due from the applicant’s income support was a proper alternative which should have been considered by the magistrates before making any suspended order for imprisonment. Thirdly, given the applicant’s circumstances, the magistrates should have exercised their discretion to remit the amount of his community charge arrears. Their failure to do so was perverse.

In relation to the hearing on 23 July 1998, Mr Justice Keene stated as follows:

“... it appears that the justices must have been aware of the applicant’s medical condition and of the reason which he gave for not attending. It may well be that they did not regard that as a sufficient reason for his non-attendance. Nonetheless it does not seem that that could have been regarded as a spurious reason, or a mere excuse, or that the applicant was acting in bad faith in any way. As a matter of law, justices can issue a warrant of committal in the absence of a defendant, but where there is evidence of serious ill health and the defendant is not present in court, justices should be slow to commit a person for civil debt in the absence of conducting any further investigations. The matter was well put by Rose LJ, in a case arising out of very different circumstances but nonetheless of relevance for present purposes, namely R. v. Doncaster Justices ex parte Hannan [1998] RVR 254. His Lordship said this:

‘This case illustrates how unwise it may be for justices to make an order committing someone to prison when they do not know, because that person is not before them and because that person does not know of the date of the hearing, what the up-to-date circumstances are’.

Of course the present case is different in that the person in question did know of the date of the hearing but had put forward a particular problem which he faced in attending on that day. Whether he was justified in not appearing is not the point. The point is that the committal of someone to prison is a very draconian step and before taking it justices should take steps to satisfy themselves that they are fully aware of all the circumstances which relate to the individual who does not appear before them, particularly when they do know that he has a serious health problem.

In my judgment, to issue a warrant for the imprisonment of this applicant forthwith, in those circumstances, was Wednesbury unreasonable.”

3.  Alan BROADHURST (69187/01)

This applicant’s application for judicial review was determined by the judgment of Mr Justice Gage in R. v. Sheffield Justices ex parte Broadhurst [2001] RVR 245. The applicant was summoned to appear before the magistrates on 4 March 1997 as a result of his failure to meet his liabilities for community charge and council tax. The magistrates found that his failure to pay was as a result of culpable neglect. They made an order committing the applicant to prison for 45 days, but suspended the term upon payment of £8 a week of the arrears. Mr Justice Gage quashed that order for the following reasons.

First, the magistrate had been faced with five liabilities in relation to community charge and council tax on 4 March 1997. Mr Justice Gage referred to the following words of Mr Justice Owen in R. v. Leeds Justices ex parte Kennett:

“It is apparent from the wording of the regulations that each liability order is to be considered separately and in respect of each liability order there has to be, as I see it, a decision as to whether there was wilful refusal or culpable neglect shown.”

Mr Justice Gage continued by quoting the words of Mr Justice Turner in R. v. Warrington Borough Council ex parte Barrett [2000] RVR 208, inter alia, that:

“... Before the justices were entitled to come to a finding of culpable neglect or wilful refusal they had to give separate consideration to each period.”

Mr Justice Gage then considered the actions of the magistrates on 4 March 1997. He concluded as follows:

“... what the court did on that occasion was to look at the whole matter in the round together, and did not look at each of the liabilities separately and make separate findings in respect of each. In the circumstances it seems to me clear from the regulations and the interpretation put upon them by Turner J and Owen J, with which I respectfully agree, that the magistrates erred in their failure to make separate findings in respect of each of the liabilities.”

Mr Justice Gage further held that the decision of the magistrates to order the applicant to make payments of £8 a week was one which no reasonable bench of magistrates could have made; that the magistrates should have considered their power to remit part or all of the sum due before they went on to consider imprisonment; and that the imposition of terms of payment which would have taken a period of five years to discharge was far too long.

The applicant appeared again before the magistrates on 20 March 2000. On that occasion he was ordered to be committed to prison for non-payment of community charge and council tax. Mr Justice Gage quashed that order for the following reasons.

The hearing concerned four additional liabilities for council tax. Mr Justice Gage held, first, that the magistrates had failed to consider their power to remit the amounts due. Second, that they did not make separate inquiries in respect of each of the four liabilities. Third, that on the evidence before the justices, they should not have made a finding of wilful refusal to pay. Fourth, that the period that it would have taken for the applicant to discharge his arrears on the making of repayments had by that time been extended to eight years. That period was far too long.

4.   Ingrid DANN (3859/02)

This applicant’s application for judicial review was determined by the judgment of the Divisional Court on 23 March 2000. In February 1995, following a means inquiry, the magistrates found that the applicant had been guilty of culpable neglect in failing to pay two court-imposed fines. They imposed a term of seven days’ imprisonment, postponed upon payment of £10 per fortnight. On 13 June 1995 the applicant was committed to prison by the magistrates in respect of her failure to pay those fines. She was detained in prison for one day.

The Divisional Court allowed the applicant’s application for judicial review and quashed the decision of the magistrates on the basis that they had been wrong in law not to have considered the imposition of a supervision order as an alternative to sending the applicant to prison, as they were required to do by section 82(4A) of the Magistrates’ Courts Act 1980.

In coming to its conclusion, the Divisional Court set out the requirements of sections 77(2), 82(3), 82(4) and 82(4A) of the Magistrates’ Courts Act 1980 (see under “Relevant domestic law” below). Lord Justice Otton stated that, in fine enforcement cases, it was therefore the obligation of the magistrates to act as follows: first, to conduct an inquiry into the applicant’s means; secondly, to determine whether the default was due to wilful refusal or culpable neglect; and thirdly, to consider or try all the alternative means of enforcing payment other than imprisonment. His Lordship affirmed that the language of section 82, in particular section 82(4), was unambiguous. He referred to the following passage in the commentary in Stones’ Justices Manual 1999:

“The words are thus peremptory. There is no discretion in the court. It must either consider or try all the other methods of enforcing payment.”

Lord Justice Otton referred further to the statutory requirement to consider a supervision order under section 88 of the Magistrates’ Courts Act 1980 prior to imposing a sentence of imprisonment and to the passage of the judgment of Mr Justice Farquharson in R. v. Norwich Justices ex parte Lilly (1987) 151 JP 689 in relation to enforcement proceedings (set out under “Relevant domestic law” below).

During the course of his judgment, Lord Justice Otton stated that, in fines enforcement cases, the statutory provisions and principles were well established, yet it was “a blemish on our justice system” that too many debtors were sent to prison instead of resorting to the many alternative methods of disposal which were available to magistrates.

B.  Relevant domestic law

1.  Appeal from a decision of a magistrates’ court by way of case stated

By virtue of section 111 of the Magistrates’ Courts Act 1980 a party to proceedings before a magistrates’ court may “question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...”. This is known as the “case stated” procedure.

Under section 113 of the 1980 Act, magistrates may grant bail to a party who applies to them to state a case; but if they refuse to do so, in cases categorised as “civil” under the domestic law, the High Court has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary.

2.  Judicial review

According to Halsbury’s Laws of England, Fourth Edition, Volume 1(1) at paragraph 59:

“Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties ...

Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself ...

The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers.”

3.  The distinction between an act of a magistrates’ court which is merely wrong in law and one which is so wrong as to be in excess of jurisdiction

The principles underlying the domestic law as set out under this heading are largely as previously stated in the case-law of the Convention organs, in particular in the judgments of the Court in the cases of Benham v. the United Kingdom (judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p.738) (“Benham”) and Perks and Others v. the United Kingdom nos. 25277/94 and others, 12 October 1999 (“Perks”). The Government submitted that this was an accurate statement of the position under domestic law. The applicants disagreed and the extent to which they did so can be seen by reference to the applicants’ arguments as set out under the below heading “Preliminary submission that Benham and Perks were wrongly decided”.

In English law, orders of a magistrates’ court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court. It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 – see below).

The appropriate test for whether an order of a magistrates’ court is void for lack of jurisdiction is that set out by the House of Lords in McC. v. Mullan [1984] 3 All England Reports 908. In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do. The order was quashed on judicial review on the ground that, by virtue of Article 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and had been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so.

The boy then applied for damages for false imprisonment against the magistrates. Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction, the House of Lords was required to decide the jurisdictional question. Indeed, Lord Templeman in his judgment stated as follows:

“The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction.”

In addressing that question, Lord Bridge specifically referred to the case of Anisminic Ltd. v. the Foreign Compensation Commisison [1969] 2 Appeal Cases 147 (HL) (“Anisminic”) and stated as follows:

“I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case, ... however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of s[ection] 15 of the 1964 Northern Ireland Act or s[ection] 45 of the 1979 [Justices of the Peace] Act.”

In the judgment of the House of Lords, a magistrates’ court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if, although it had jurisdiction, it were guilty of some gross and obvious irregularity of procedure, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent. The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15(1) of the 1976 Order. As such, they had failed to fulfil the statutory condition precedent to the imposition of the sentence of detention.

During the course of his judgment, Lord Bridge commented on the jurisdiction of magistrates in conducting a criminal trial:

“... once justices have duly entered upon a summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [A]n error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction ...”

Lord Bridge also said the following in relation to the second situation set out above in which a magistrates’ court acted in excess of jurisdiction:

“Justices would, of course, be acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s[ection] 15 if, in the course of hearing a case within their jurisdiction, they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages.”

The final limb of the rule formulated by the House of Lords in McC. v. Mullan (that is, that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent) was applied by the Court of Appeal in R. v. Manchester City Magistrates’ Court, ex parte Davies [1989] 1 All England Reports 90, a case concerning rates (a local tax which was the predecessor to the community charge). In the course of his judgment in that case, Lord Justice O’Connor stated:

“I return to the issue under s[ection] 45 of the 19[7]9 Act. This section was considered by the House of Lords in McC. v. Mullan ... That was a case from Northern Ireland but the relevant statutory provisions are the same.”

Again, the issue was whether magistrates had acted in excess of jurisdiction and were therefore liable in damages for false imprisonment. In considering that question Lord Justice Neill stated as follows:

“It is to be noted that in Anisminic Ltd. v. the Foreign Compensation Commission ... Lord Reid expressed the opinion that it is better not to use the term [jurisdiction] ‘except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question’. It is plain, however, that in s[ection] 45(1) ‘jurisdiction’ has a wider meaning than this original meaning.”

The plaintiff had been unable to pay all of the rates for which he became liable in December 1984, and in January 1986 he failed to follow his accountant’s advice to close his business and elect bankruptcy. Applying legislation similar to regulation 41 of the Community Charge Regulations (for which, see below), the magistrates found that his failure to follow the accountant’s advice constituted culpable neglect and they committed him to prison. The Court of Appeal held that no causal connection had been established between the failure to follow the advice in 1986 and the failure to pay the rates in 1984; and that the magistrates had not properly entered into the inquiry as to whether the failure to pay was due to culpable neglect, which was required by the legislation as a statutory condition precedent to the exercise by the justices of their power to issue a warrant of commitment. They were therefore acting in excess of jurisdiction and were liable in damages.

The three Appeal Court judges expressed their findings in slightly different terms. Lord Justice O’Connor observed that “they never carried out the inquiry required [by the law]”. Lord Justice Neill found that “some inquiry about the applicant’s finances was made”, but that “a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out. The justices never examined the question whether failure to pay was due to culpable neglect ... In my judgment, the statutory inquiry was not held in the present case”; and Sir Roger Ormrod (who dissented from the majority decision) said: “... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant’s failure to pay his rates was ‘due either to his wilful refusal or to his culpable neglect’ ”.

4.  Statutory provisions

(a)  Provisions concerning enforcement of payment of the community charge and council tax

The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) (“the 1989 Regulations”).

The relevant provisions of regulation 29 (“application for a liability order”) are as follows:

“(1)  If an amount which has fallen due ... is wholly or partly unpaid the charging authority may ... apply to a magistrates’ court for an order against the person by whom it is payable. ...

(5)  The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.”

Regulation 39(1) provides for the seizure and sale of a debtor’s property (“levying of distress”):

“Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made.”

Regulation 41 is concerned with the committal to prison of a debtor, and provides, so far as is relevant:

“(1)  Where a charging authority has sought to levy an amount by distress under regulation 39, the debtor is an individual, and it appears to the authority that no (or insufficient) goods of the debtor can be found on which to levy the amount, the authority may apply to a magistrates’ court for the issue of a warrant committing the debtor to prison.

(2)  On such application being made the court shall (in the debtor’s presence) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect.

(3)  If (and only if) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit -

(a)  issue a warrant of commitment against the debtor, or

(b)  fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just. ...

(7)  The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed 3 months, unless the amount stated in the warrant is sooner paid ... .”

Regulation 42 makes further provision in respect of committal to prison. It provides, in relevant part, as follows:

“(2)  Where an application under regulation 41 has been made, and after the making of the inquiries mentioned in paragraph (2) of that regulation no warrant is issued or term of imprisonment fixed, the court may remit all or part of the appropriate amount mentioned in regulation 39(2) with respect to which the application related.

(3)  Where an application under regulation 41 has been made but no warrant is issued or term of imprisonment fixed, the application may be renewed (except so far as regards any sum remitted under paragraph (2)) on the ground that the circumstances of the debtor have changed.”

Regulations 47 and 48 of the Council Tax (Administration and Enforcement) Regulations 1992 (Statutory Instrument 1992/613), which concern the commitment to prison of a person for failure to pay council tax, are in similar terms to regulations 41 and 42 of the 1989 Regulations.

(b)  Provisions concerning enforcement of payment of fines

Sections 77(2) and 82 of the Magistrates’ Courts Act 1980 read, in relevant part, as follows:

“77.  Postponement of issue of warrant.

(2)  Where a magistrates’ court has power to issue a warrant of commitment under this Part of this Act, it may, if it thinks it expedient to do so, fix a term of imprisonment ... and postpone the issue of the warrant until such time and on such conditions, if any, as the court thinks just.”

“82.  Restriction on power to impose imprisonment for default

(3)  Where on the occasion of the offender’s conviction a magistrates’ court does not issue a warrant of commitment for a default in paying any ... sum [adjudged to be paid following conviction] ... or fix a term of imprisonment under ... section 77(2) which is to be served by him in the event of any such default, it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless - (...)

(b)  The court has since the conviction inquired into his means in his presence on at least one occasion.

(4)  Where a magistrates’ court is required by subsection (3) above to inquire into a person’s means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless -

(...)

(b)  The court

(i)  is satisfied that the default is due to the offender’s wilful refusal or culpable neglect; and

(ii)  has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.”

Section 82(4A) lists the methods of enforcing payment that are mentioned in the above-cited subsection 82(4)(b)(ii). One such method that is listed in section 82(4A) is the imposition of a ‘fines supervision order’ under section 88 of the Magistrates’ Courts Act. Section 82 continues:

“(5)  After the occasion of an offender’s conviction by a magistrates’ court, the court shall not, unless -

(a)  the court has previously fixed a term of imprisonment under section 77(2) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction; (...)

issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present.

(5A)  A magistrates’ court may not issue a warrant of commitment under subsection (5) above at a hearing at which the offender is not present unless the clerk of the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends. (...)

(5F)  A notice under subsection (5A) above to be served on any person shall be deemed to be served on that person if it is sent by registered post or the recorded delivery service addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person.

(6)  Where a magistrates’ court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground, in the warrant.”

(c)  Restrictions on imposing custodial sentences on persons under the age of 21

Part I of the Criminal Justice Act 1982 sets out provisions in relation to the custody and detention of persons under 21 years of age. Section 1 reads, in relevant part, as follows:

“1.  General restriction on custodial sentences

(5)  No court shall commit a person under 21 years of age to be detained under section 9 below [Detention of persons aged 18-20 for default or contempt] unless it is of the opinion that no other method of dealing with him is appropriate; (...)

(5A)  Where a magistrates’ court commits a person under 21 years of age to be detained under section 9 below, it shall -

(a)  state in open court the reason for its opinion that no other method of dealing with him is appropriate; and

(b)  cause that reason to be specified in the warrant of commitment and to be entered in the register.”

Section 3 of the Criminal Justice Act 1982 reads, in relevant part, as follows:

“3.  Restriction on imposing custodial sentences on persons under 21 not legally represented. -

(1)  A magistrates’ court on summary conviction or the Crown Court on committal for sentence or on conviction on indictment shall not -

(a)  pass a sentence of detention in a young offender institution (...)

in respect of or on a person who is not legally represented in that court, unless either -

(i)  he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or

(ii)  having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.”

Regulation 42(7) of the 1989 Regulations states that the above sections of the Criminal Justice Act 1982 apply to proceedings under regulation 41 of the 1989 Regulations.

5.  Case-law

Among the further case-law referred to in the judgments and consent orders of the High Court, and/or referred to by the parties in their submissions, was the following:

(a)  The inquiry into the debtor’s means and circumstances

(i)  General

In R. v. Hyndburn Justices ex parte Derrick Long (18 October 1993), Mr Justice Schiemann stated as follows in a case concerning the non-payment of the community charge:

“ ... It is important when dealing with the liberty of citizens only to set in train the process of imprisonment when all the requirements imposed by law have been carefully considered. It is important to note that, in this field as in the case of suspended sentences of imprisonment imposed pursuant to the criminal law, the same degree of care must be exercised in the case of a suspended penalty as in the case of an immediate penalty.”

(ii)  Failure to hold a proper means inquiry

In R. v. Woking Justices ex parte Johnstone [1942] 2 King’s Bench 248, the Divisional Court, in examining legislation in similar terms to the 1989 Regulations, emphasised that, in order to commit to prison, the justices, following their inquiry, had to be of the opinion that the failure to pay was due either to wilful refusal or culpable neglect.

In R. v. Stafford Justices ex parte Shaun Thomas Johnson (16 March 1995) Mr Justice Laws stated as follows:

“ ... The means inquiry required by regulation 41(2) is of great importance because without it the Justices plainly cannot properly arrive at a conclusion as to whether the failure to pay had been due to the debtor’s wilful refusal or culpable neglect. A means inquiry, thus, is at the centre of the enforcement procedure which is laid down by these Regulations. These Justices did not, in truth, embark upon a proper means inquiry at all. It follows that their order committing the applicant to prison is entirely vitiated.”

In Meara v. DPP (25 November 1998), a case involving the non-payment of fines, Lord Justice Rose stated that:

“... an essential prerequisite to a finding of culpable neglect must be the holding of a full means inquiry”.

(iii)  Failure to examine each liability order separately

In R. v. Leeds Justices ex parte Kennett [1996] Rating and Valuation Reporter (“RVR”) 53, an order committing the applicant to prison for non-payment of community charge following the issue of three liability orders in respect of non-payment for the years 1990-91, 1991-92 and 1992-93 was quashed as a full means inquiry in respect of each liability order had not been made under regulation 41(2) of the 1989 Regulations. Mr Justice Owen stated as follows during the course of his judgment:

“It is apparent from the wording of the Regulations that each liability order is to be considered separately and in respect of each liability order there has to be, as I see it, a decision as to whether there was wilful refusal or culpable neglect shown.”

The above conclusion was followed by Mr Justice Dyson in R. v Durham City Justices ex parte Fleming [1997] RVR 244 at 246; by Mr Justice Keene in R. v. Gloucestershire Justices ex parte Daldry [2001] RVR 242 at 243; and by Mr Justice Gage in R. v. Sheffield Justices ex parte Broadhurst [2001] RVR 245 at 246.

(iv)  The burden of proof

In R. v. South Tyneside Justices ex parte Stuart Daniel Martin (31 July 1995), Mr Justice Sedley stated the following in respect of the burden of proof:

“ ... It is necessary in my judgment for Justices to be satisfied not merely on the balance of probability but so that they are sure, following a proper means inquiry, that the debtor’s failure to pay has been due to his or her wilful refusal or culpable neglect to pay, before they can issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant. ...

If I am wrong in this, and if the proper standard is a civil standard, what is at stake for the individual makes it inescapable that only the highest standard of probability is commensurate with the exercise of the power of committal or of fixing a term of imprisonment.

The Justices, on advice, applied neither such standard.

In my judgment a bare balance of probability is not a sufficient standard and their decisions of 6th April 1993 and 27th July 1993 to fix terms of imprisonment and postpone the issue of warrants of committal on grounds of culpable neglect cannot therefore stand.”

Mr Justice Sedley concluded as follows:

“ ... To be open to criticism for the disposal of slender resources is one thing; to be guilty of culpable neglect in the disposal of them is another.

In my judgment the first fixing of the term of imprisonment and the postponement of the warrant were done after a means inquiry too perfunctory to constitute compliance with Regulation 41(2). The fixing of a separate term of imprisonment and the postponement of the warrant in July 1993, although it followed a much fuller inquiry, was again carried out on the basis of data which were not capable by themselves of founding a finding of culpable neglect to pay, whether on the lower standard of proof that was applied or on the higher standard which, as I have held, ought to have been applied.

Accordingly the applicant succeeds in his application to quash both decisions of the Justices”.

In the case of R. v. Mid Herts Justices ex parte Cox (19 October 1995) Mr Justice Laws expressly agreed with what Mr Justice Sedley had said in relation to the burden of proof in the above Martin case.

(b)  The consideration of alternatives to imprisonment

(i)  Failure to pay local taxes

In R. v. the Alfreton Magistrates ex parte Darren Gratton (25 November 1993) the magistrates had come to the conclusion that they could not consider attaching the applicant’s liability to pay his community charge to his income support as a viable alternative to prison. Mr Justice MacPherson held that, in so concluding, the magistrates were “plainly wrong” and that, as such, there was a “fundamental flaw” in the case. In considering whether to order costs against the magistrates, he concluded:

“I am wholly unable to find that there has been any perverse or outrageous conduct of any kind in this case. These are tricky cases. The law has been evolving in the last year or so.”

He continued:

“... Community charge liability should only be visited with prison (if I may use that shorthand expression) if there is no other way in which the money can be extracted. Prison is not to be used as a big stick or primarily as punishment but as a means of extracting the liability.”

Mr Justice MacPherson stated that there may also have been a flaw in the case because the applicant was under 21 years of age at the time at which he was sentenced and the magistrates did not fulfil their requirement publicly to state that there was no alternative but prison in this case. However, he regarded it as unnecessary to conclude the case on that ground in the light of his earlier finding.

Lord Justice Kennedy stated in R v. Wolverhampton Magistrates’ Court, ex parte Mould [1992] RA 309:

“...the power to commit to prison which is to be found in reg. 41 is plainly intended to be used as a weapon to extract payment rather than to punish ...

...in the circumstances it might have been appropriate for the magistrate before making his order to ask the charging authority’s representatives if any thought had been given to the possibility of an application to the Secretary of State [for deductions from income support]. I appreciate that ... a charging authority is not bound to take that course before seeking an order under reg. 41, but it would be relevant to the exercise of the magistrates’ discretion to know if the possibility of [deductions] had at least been considered.”

In R. v. Newcastle-under-Lyme Justices, ex parte Massey [1995] 1 All ER 120, Lord Justice Rose stated:

“A failure by justices to consider all possible alternative methods of enforcing payment before issuing a warrant for commitment might render their decision unreasonable in the Wednesbury sense ...”

In the unreported case of R. v. Middleton Magistrates ex parte Phillips (29 October 1993) Mr Justice Potts stated:

“[A] court which finds a debtor guilty of wilful refusal to pay the relevant sum has a discretion. The court is not required to commit such a debtor to a term of imprisonment ... Before committing a debtor to prison, it is incumbent upon justices to consider all available alternatives to effect recovery of the sum due ...

It does not follow that, because the applicant had wilfully refused to pay the relevant sum, there was no alternative other than an immediate sentence of imprisonment. Regulation 41(3)(b) makes that plain ... The applicant had stated that she could pay off the arrears at £3 per week. This was a relevant factor for the justices’ consideration in the exercise of the discretion conferred, in particular by Regulation 41(3)(b) ...

In my view the approach of the justices and the decision to commit this applicant to prison was in the circumstances fundamentally flawed.”

(ii)  Failure to pay fines

R. v. Norwich Magistrates’ Court ex parte Lilly [1987] 151 JP 689 concerned an applicant who was committed to prison after having failed to pay two court-imposed fines. The Divisional Court held that a magistrates’ court having inquired into an offender’s means under section 82(3)(b) of the Magistrates’ Courts Act 1980 and satisfied itself that the default in payment was due to his wilful refusal or culpable neglect, was under a duty imposed by section 82(4)(b)(ii) to consider or try all other methods of enforcing payment before issuing a warrant of commitment. In the current case, it held that, on the evidence available, that duty had not been fulfilled and accordingly the application was granted and the two committal warrants were quashed.

During the course of his judgment, Mr Justice Farquharson stated as follows in relation to section 82(4)(b)(ii):

“... The words of the subsection are peremptory. There is no discretion in the court, they have either to consider or try all the other methods of enforcing payment.”

He continued:

“... It needs to be emphasised that the proceedings which were taking place on September 9 before the Norwich Justices were not proceedings intended to punish the applicant. He had already been before the court for the offences that he had committed and the Justices on those occasions had decided that a fine was an appropriate sentence to pass. When the time came for enforcement, therefore, it was necessary for the Justices to go through the judicial exercise of seeing if there was any other method of enforcing payment of the fine, short of committing the applicant to prison, and that necessarily included a procedure whereby he was examined as to what property or other earnings or income he might have. It is not to be assumed merely on their experience of other cases by the Justices that the proceeding is a formality or unnecessary.”

(iii)  Persons under the age of 21

In R. v. Newcastle Justices ex parte John Ashley (12 October 1993), the fact that the applicant was under 21 at the time of his committal in respect of failure to pay community charge was accepted by the court to be the “major point” in the case. Mr Justice Laws, in quashing the committal order, concluded that the justices’ decision to commit had been unlawful in that they had failed to have regard to their statutory responsibilities in the case under regulation 42(7) of the 1989 Regulations and Part I of the Criminal Justice Act 1982. He noted that the power to imprison a person under the age of 21 was only to be exercised if the court was of the opinion that no other method of dealing with him was appropriate and that it was the duty of the court, if of that opinion, to state in open court why the court believed that to be the case. He further noted that the magistrates had failed to state in open court why they believed that no alternative to imprisonment was available, that there was no evidence to show that the magistrates in fact felt that no other method was appropriate, or the reasons why they might so have felt; and that it was quite clear that alternatives to imprisonment had been available to them. During the course of his judgment, Mr Justice Laws stated that the complaint made in respect of the decision to commit “went to an important aspect of the magistrates’ court’s jurisdiction under regulation 41 [of the 1989 Regulations]”.

In R. v. Oldham Justices and Another ex parte Cawley [1997] Queen’s Bench 1, each of three applicants, who were under 21 years of age, had defaulted in paying fines arising from summary criminal convictions and had been committed to prison. In each case the warrant of commitment was defective in failing to comply with the duty imposed by section 88(5) of the Magistrates’ Courts Act 1980 to describe the justices’ grounds for not placing an applicant of less than 21 years of age under supervision; and in failing to state the reason why no other method of dealing with such an applicant other than imprisonment was appropriate, contrary to section 1(5A) of the Criminal Justice Act 1982. In the first two cases, the warrants also failed to specify upon what ground they were issued, contrary to section 82(6) of the Magistrates’ Courts Act 1980 (which applied to both young and adult offenders). The Divisional Court held that a warrant of commitment which was defective for failure to comply with the requirements of sections 82(6) or 88(5) of the Magistrates’ Courts Act 1980, or section 1(5A) of the Criminal Justice Act 1982, was not void, and detention under it was not unlawful, unless and until the warrant was quashed.

(c)  The nature of, and absence from, the hearing at which the warrant of commitment is issued

The cases below concern the situation where the applicant was present at the hearing inquiring into his means and circumstances and fixing a postponed sentence of imprisonment, but was absent from the subsequent hearing at which the warrant of commitment was issued (i.e. ordered to take effect, resulting in the immediate imposition of the previously postponed order of imprisonment).

In R. v. Northampton Magistrates’ Court ex parte Newell [1992] RA 283 the Court of Appeal had to determine whether the magistrates were entitled under regulation 41 of the 1989 Regulations to issue a warrant of commitment against a charge payer who was absent from the final hearing at which the warrant was issued.

At first instance [1992] RA 190, 207, Mr Justice Henry held as follows:

“The power to issue a warrant arises after the court has inquired in the debtor’s presence into whether his failure to pay which led to the liability order being made was due to his wilful refusal or culpable neglect and has found that it was. But they need not exercise that power immediately. They can, as here, fix the term of imprisonment and postpone the issue of the warrant on conditions. Section 12 [of the Interpretation Act 1978] then would entitle them to exercise that power (already vested in them) ‘from time to time as the occasion requires’ unless the contrary intention appears. The occasion certainly does not require a repeat of the [regulation] 41(2) inquiry. That is water under the bridge. The occasion does require application by the local authority, proper notice of that application to the defaulter to give him a fair opportunity to put his case as to why the warrant should not issue, followed by proof of a breach and notice and proper consideration of any relevant material put forward by the defaulter. That is all the occasion requires, and no contrary intention appears in the regulations.

Therefore it seems to me ... that natural justice requires notification to the applicant of that hearing.”

The above conclusion was approved by the Master of the Rolls, Lord Donaldson, in the Court of Appeal.

Lord Justice Scott concluded as follows:

“In this context, 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 the hearing, 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.”

In R. v. Faversham and Sittingbourne Magistrates’ Court ex parte Ursell [1992] RA 99, Mr Justice Schiemann stated as follows in considering both the nature of the hearing at which the warrant of commitment was issued and the significance of the applicant not having notice of it:

“The magistrates in the present case appear to have accepted that a second hearing was necessary before the warrant of commitment was issued. They were right to do so. They did not apparently, however, consider that it was necessary for the debtor to have notice of the date and time of such a hearing. They clearly thought that she would have nothing new to say. They might well be right, but she is entitled, in my judgment, to be told of the date and time of the hearing as a matter of natural justice. The hearing affects her. It is held in public. She should have the right to be there. I do not, however, accept Mr Emmerson’s submission that the hearing cannot proceed if she chooses not to attend.

The question arises: on what matter is a debtor entitled to address a court at such a hearing? Clearly she is entitled to put the authority to proof of non-payment. Further, in my judgment a debtor is entitled to draw the court’s attention to any change of circumstances since the decision to fix a term of imprisonment which renders it inexpedient for the warrant of commitment to issue. There must, in my judgment, be an inherent power in the court to vary its own order in a case where, since the decision was made, the debtor has become incapable of earning, for instance by reason of an accident.”

In R. v. Hyndburn Justices ex parte Woolaghan (2 December 1994) Mr Justice Jowitt held that, in the absence of sufficient proof of service of notice of the hearing at which the warrant of commitment was issued, the applicant was entitled to succeed on his application for judicial review. Mr Justice Jowitt stated as follows:

“The difficulty, though, for the magistrates is, that when there is no appearance before them, they really have no way of telling whether this may be one of those, no doubt, not over frequent cases in which a letter has miscarried for one reason or another, perhaps because it has not been delivered or because the charge payer is absent for a continuing period from home, or because, in premises with a number of separate occupiers, a letter has got into the wrong hands. It seems, therefore, to follow that where there has been service by ordinary post, careful consideration would have to be given to the particular circumstances of the charge payer, before, if ever, concluding that the notice must have come into his hands.”

In R. v. Newcastle-upon-Tyne Justices ex parte Devine [1998] RA 97, in which notice of the final hearing had been sent by the magistrates’ court to the applicant’s last known address, but was never received by the applicant as he had moved address and therefore did not appear at the hearing, Mr Justice Latham quoted the above-cited passage of Mr Justice Jowitt in Woolaghan and stated that the magistrates in the present case did not appear to have heeded it. This was notwithstanding that they had previously consented to an order being quashed because they had failed to carry out the appropriate inquiry to make sure that the notice of the final hearing must have come into the charge payer’s hands. Mr Justice Latham referred to the fact that the magistrates knew that the applicant was intermittently unwell and therefore should also have enquired to ensure that the applicant was not suffering from one of his periodic illnesses at the time of the hearing. In all the circumstances he concluded that “the magistrates were quite wrong to issue a warrant of committal in his absence” and that their decision to do so was “vitiated”.

In deciding to award costs against the justices, Mr Justice Latham cited and applied what he had said in a previous case in which magistrates had on two separate occasions fallen into the identical error of failing to make appropriate inquiry as to whether or not notice of the final hearing had been received by the applicant:

“That seems to me to be behaviour which calls for strong disapproval, and because the principle which has apparently been ignored is one which involves the elementary step of ensuring that the person who is liable to lose his liberty has had an opportunity of knowing that the court was considering that particular course on that particular day, it is also a disregard for an elementary principle which every court ought to obey.”

In R. v. Doncaster Justices ex parte Hannan (16 July 1998) (a case concerning the non-payment of a court-imposed fine, unlike the previous cases in this section which all concerned the non-payment of community charge) Lord Justice Rose in the Divisional Court held as follows:

“[Counsel for the applicant] submits that to issue the Warrant for Commitment, with the knowledge which the Justices had [that she had not received notice of the hearing because that notice had been returned to the Justices marked “address inaccessible”] was an act of judicial impropriety and one which can properly be characterised as being perverse in that no reasonable bench of Justices would so have acted. (...)

... I am entirely satisfied that the submissions of [counsel for the applicant] advanced to this court are well-founded. This case illustrates how unwise it may be for Justices to make an order committing someone to prison when they do not know, because that person is not before them and because that person does not know of the date of the hearing, what the up-to-date circumstances are. It seems to me that, knowing that the applicant had not been served with notice of the proceedings, the Justices ought, much more prudently, to have adjourned the question of whether or not a Warrant of Commitment should be issued until such time as she had been served with notice of the proceedings.

... I am satisfied that, in issuing the warrant in the circumstances in which they did, the Justices did act perversely...”

In R. v. Doncaster Justices ex parte Christison and Jack (13 May 1999), Mr Justice Collins stated as follows:

“...The time has come to try to make it abundantly clear to Justices that, in the view of this court, it is difficult to conceive that there will be circumstances which justify the making of a committal order when the defendant fails to appear before the court. It means that the Justices are unable to ascertain whether there are, in truth, reasons why payment has not been made which might excuse such payment, and furthermore, reasons why in an individual case it would be wrong to send the person immediately to prison. Alternatively, it might be proper to reduce the period of imprisonment that is considered appropriate, if any is considered appropriate. It may transpire that by the time that the question of implementing the suspended committal order is considered, the circumstances of the defendant have changed. Whereas before she might have been able to pay perhaps, through illness or whatever reason, by now she cannot. Thus, it would be wrong to commit her. Committal, I must re-emphasise, can only occur if the Justices are satisfied that there is a continuing wilful refusal or culpable neglect.

The Justices have a perfectly sensible and powerful weapon available to them to deal with cases where a defendant does not attend, and that is a Warrant Not Backed for Bail. That is the means by which a person can be brought before the court and made to explain why he or she has not paid. Then the Justices will have the proper information before them to enable them to decide whether the committal is indeed correct. I cannot emphasise strongly enough my view that Justices should not, unless there are very exceptional circumstances (such as positive evidence that a defendant is refusing to attend and has expressed an unwillingness to comply with the court order) commit to prison in the absence of a defendant. ...

It is true that in these cases, the Justices were told that service had been effected, but service some three weeks before is nothing to the point. Much can happen in that time ... Furthermore, there was no evidence put before the Justices to support the contention that service had been effected, and for my part I do not think it right, when someone’s liberty is at stake, for Justices to rely upon the word of the prosecutor unsupported by any evidence.

A civil court which commits for contempt, which may be contempt occasioned by failure to comply with a court order, requires proof of service and that is usually done by a bailiff or whoever, indicating that service has been effected. It seems to me that it is quite wrong that Justices should put up with a lesser standard than that.”

Mr Justice Collins also awarded costs against the magistrates on the following basis:

“It is unusual for costs to be awarded against Justices who do not attend applications against them for judicial review. The principle which is applied has recently been referred to by Latham J in R. v. Newcastle-upon-Tyne Justices ex parte Devine (1998) RA 97. At page 104 of the report, the learned judge refers to a decision of the Divisional Court R. v. York City Justices ex parte Farmery 153 JP 257, the head note of which reads:

‘ ... the court would be guided by the principles set out in R. v. Willesden Justices, ex parte Roberts (1960) 124 JP 336 wherein it was decided respectively: (i) that costs would only be awarded against Justices in the rarest of circumstances when they have done something which calls for strong disapproval; and (ii) that it was the practice not to grant costs against Justices merely because they have made a mistake in law, but only if they have acted perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance’. (...)

... In [this] case the committal took place in the absence of the defendant.

This court has made it clear that Justices must be satisfied, at the very least, that there has been proper service, and, as I have said, I find it very difficult to conceive of circumstances which would justify a committal in the absence of a defendant. Thus it seems to me that the conduct of these Justices can properly be said to fall within the description that I have set out and which is referred to in the Newcastle case by Latham J.”

(d)  Awards of costs against the justices by the High Court

The applicable principles are set out in the above-cited ex parte Christison and Jack case.

(e)  The length of the threat of imprisonment

In R. v. Ealing Justices ex parte Cloves [1991] RVR 169, the Divisional Court held that a committal order which had been suspended on the basis of the debtor paying £1 per week in the discharge of arrears of rates due was quashed since it would have taken over eight years for the debt to be discharged and the risk of committal removed. During the course of his judgment, Lord Justice Nolan stated as follows:

“ ... The criminal courts, when imposing fines upon convicted defendants of limited means, frequently provide for the fines to be paid by instalments over a period. There is no fixed limit to the period over which payment can be ordered. It has recently been indicated by the Court of Appeal that in appropriate circumstances a period of three years might not be excessive. (...)

... In my judgment it would be a very rare case indeed in which a defaulting rate-payer could properly be ordered, on pain of a sentence of imprisonment, to make payments in discharge of the arrears for a period anywhere near approaching eight years. In my judgment, with great respect to the Justices, unless they were confident that she could pay it off more quickly they should not have made the order in those terms.”

In the above-cited case of R. v. Newcastle-upon-Tyne Justices ex parte Devine, Mr Justice Latham referred to the above-cited ex parte Cloves case in stating that the magistrates should not have imposed a suspended committal order which would have lasted for three and a half years. He was of the opinion that such an order should not be suspended for more than three years.

6.  R. v. the Governor of Brockhill Prison, ex parte Evans (No. 2)

In R. v. the Governor of Brockhill Prison, ex parte Evans (No. 2) [2000] 4 All England Reports 15, the House of Lords held that where the executive had detained a person unlawfully, that person was entitled to recover compensation for the tort of false imprisonment. In that case, the responsibility for calculating the date on which the respondent was to be released from prison lay with the Governor of the prison. He had calculated her date of release to be 18 November 1996. However, accepting her arguments on judicial review, the Divisional Court held that the release date should actually have been 17 September 1996. On appeal to the House of Lords, the Governor accepted that the respondent’s continued detention after 17 September 1996 had therefore been unlawful. Nevertheless, he contended that he could not be liable for false imprisonment since he had complied with the law as it was understood at the time of his decision. The House of Lords held that the tort of false imprisonment was one of strict liability and that its consequences could not be escaped even by showing that the Governor had acted in accordance with the view of the law which at the time was accepted by the court to be correct. There was no lawful justification for the action of the Governor, as the responsibility for calculating the release date lay with him, and not with the order of the court that sentenced the respondent to prison. The respondent was therefore entitled to compensation as it was agreed that her detention after 17 September 1996 was unlawful.

During the course of his judgment, Lord Hope stated that, as he had decided in her favour on other grounds, it was not necessary for the respondent to rely on her additional argument that the position of the Governor had been contrary to Article 5 of the Convention. However, he stated that as the issues that had arisen in the case had raised a novel point of law of some difficulty, it was of interest to see whether the provisions of Article 5 of the Convention supported the conclusion which he had determined to represent the present state of the domestic law. In the course of this consideration, Lord Hope stated the following:

“The jurisprudence of the European Court of Human Rights indicates that there are various aspects to Art. 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that Article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Art. 5(1). It will thus give rise to an enforceable right to compensation under Art. 5(5), the provisions of which are not discretionary but mandatory.”

A little later in his judgment, Lord Hope continued:

“The question whether detention is or is not lawful under domestic law for the purposes of the Convention is a matter which the jurisprudence of the Strasbourg Court has left for decision by the domestic courts. The Divisional Court held that the respondent was entitled to release on 17 September 1996. It must follow that under domestic law her continued detention after that date was unlawful. This would indicate that there was a contravention of Art. 5(1).”

During the course of his judgment, Lord Hobhouse considered the arguments that the Solicitor General had presented on behalf of the Governor of the prison, and concluded as follows:

“The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. (...)

The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the Convention case-law as illustrated by Benham v. the United Kingdom (1996) 22 EHRR 293. The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art. 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law. Paragraph 42 of the judgment (at 320) relied on by the Solicitor General does not support his argument:

‘A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of facts or law.’

In the present case there was an order; it was never set aside nor did it have to be. The illegality arose because it did not authorise the detention which took place. The order was not obeyed.”

7.  The immunity of magistrates from civil proceedings

Magistrates enjoy a statutory immunity from civil liability in certain circumstances. Before the coming into force of section 108 of the Courts and Legal Services Act 1990 on 1 January 1991, this immunity was provided for by sections 44 and 45 of the Justices of the Peace Act 1979. In brief, a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either (1) that the act was done maliciously and without reasonable and probable cause, or (2) that it was performed outside or in excess of jurisdiction.

The position under section 108 of the Courts and Legal Services Act 1990 is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction.

8.  Legal aid

Prior to 1 June 1997 neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in committal proceedings relating to the non-payment of a fine, community charge, council tax or non-domestic rates. The “Green Form” legal aid scheme provided two hours of help from a solicitor, and could include preparation for a court case, but did not provide for representation. The assistance by way of representation scheme (“ABWOR”) enabled the court, in limited circumstances, to appoint a solicitor who happened to be within the court precincts to represent a party who would not otherwise be represented. The appointment might be made either of the court’s own motion or on application by a solicitor. The court was under no obligation to advise a party of the possibility of such an appointment. The Duty Solicitor scheme, which provided representation for the accused in criminal cases before magistrates, did not extend to the proceedings with which this decision is concerned.

Following the Court’s judgment in the above-cited Benham case, where the Court found a breach of Article 6 §§ 1 and 3(c) of the Convention in respect of the applicant’s complaint of a lack of legal representation, the United Kingdom enacted regulation 3(2) of the Legal Advice and Assistance (Scope) (Amendment) Regulations 1997 (S.I. 1997, No. 997). Under that provision, with effect from 1 June 1997, any person whose financial resources are such as to make him eligible is entitled to assistance by way of representation in proceedings before a magistrates’ court in which he is likely to be “at risk of a term of imprisonment being fixed in his case (whether at the hearing for which ABWOR is granted or subsequently)” as a result of his failure to pay any sum which he has been ordered to pay.

COMPLAINTS

The applicants complained that their detention was unlawful and contrary to Article 5 § 1 of the Convention, and that, contrary to Article 5 § 5 of the Convention, they were not entitled to compensation therefor as, to be entitled to such compensation under domestic law, they would have had to have demonstrated that the magistrates had acted, inter alia, in bad faith.

The applicants further complained under Article 6 §§ 1 and 3(c) that they were not offered legal representation and were not represented at the hearing at which they were sentenced to a term of imprisonment. They affirmed their right to legal representation at a hearing at which their liberty was at stake.

The applicant Broadhurst (69187/01) further submitted that the immunity granted to justices from actions for damages under domestic law, unless they acted outside their jurisdiction and in bad faith, was contrary to the requirement of access to court under Article 6 § 1 of the Convention.

Some of the applicants originally complained under Article 6 § 1 that they had not had a hearing in the magistrates’ court which was in compliance with the requirement of an independent and impartial tribunal in respect of certain of the actions of the clerk of the justices. However, in the light of the decision of the Court in Mort v. the United Kingdom (dec.), no. 44564/98, ECHR 2001-IX, the applicants decided not to pursue this complaint. In the light of the Mort decision, the Court does not see any reason to continue the examination of this complaint.

THE LAW

A.  Preliminary submission that Benham and Perks were wrongly decided

1.  The parties’ submissions

(a)  The applicants

It was submitted on behalf of all of the applicants that the above-cited cases of Benham and Perks were wrongly determined. It was contended that the acceptance by the representative of Mr Benham, as reflected at paragraph 43 of the Benham judgment, that there existed in English law a distinction between acts outside and those within the jurisdiction of the justices, was wrong. The applicants submitted that since 1969 that distinction had been removed. Without citing any particular passage therefrom, the applicants referred to the above-cited Anisminic case in relation to this submission.

The applicants further submitted that the matter was confused in Benham by the above-cited McC v. Mullan case in which the distinction between acts outside and inside jurisdiction came into play by virtue of section 15 of the Northern Ireland Act 1964, which provided that no action for damages should succeed against magistrates unless the court was satisfied that the magistrate acted without or in excess of jurisdiction. It was submitted that that distinction was not one that was established in English law. Accordingly it was submitted that the Court was wrong to proceed on that basis.

It was argued that the “correct approach of English law” had recently been expounded in the above-cited passage of Lord Hope in R. v. the Governor of Brockhill Prison ex parte Evans (No. 2) [2000] 4 All England Reports 15 that:

“Any detention which is unlawful in domestic law will automatically be unlawful under Article 5(1). It will thus give rise to an enforceable right to compensation under Article 5(5), the provisions of which are not discretionary but mandatory.”

The applicants noted that the House of Lords in Evans made no distinction between decisions made outside or within jurisdiction. They submitted that their cases should be determined in line with Evans and that the Court should reconsider its Benham and Perks judgments, which were wrong.

(b)  The Government

The Government did not provide any specific observations in relation to this point in the series of cases under consideration in this decision. However, in a parallel series of cases (Lloyd and 44 others v. the United Kingdom, application nos. 29798/96 and others), which raised the identical point, they submitted as follows.

The Government did not accept that the Evans decision cast doubt upon the conclusions of the Court in Benham and Perks. The Government argued that in the Evans case the House of Lords was concerned with detention by the prison authorities. The question was whether those authorities had detained Ms Evans longer than was permitted by the court order under which she had been committed to prison. The validity of that court order was not in doubt. Therefore, the Government contended that the House of Lords did not have to consider the distinction in English law between a court order which was within the jurisdiction of the court making it, and one which was made in excess of jurisdiction. The Evans decision had, submitted the Government, to be read in that context. In any event, the Government submitted that that part of Lord Hope’s speech cited by the applicants was entirely consistent with paragraph 41 of the judgment of the Court in Benham.

The Government further submitted that in the judgment of Lord Hobhouse there was a clear endorsement of precisely the distinction recognised in Benham. They relied on the above-cited passage of Lord Hobhouse’s judgment in which he stated that:

“The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the Convention case-law as illustrated by Benham v. the United Kingdom ... The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art. 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law.”

The Government submitted that the Court had no reason to reconsider its conclusions in Benham or Perks because of the decision in the Evans case.

2.  The Court’s assessment

The Court recalls the following general principles that were stated at paragraphs 39-44 of the above-cited Benham judgment, and reiterated, in large part, at paragraph 62 of the Perks judgment:

“39.  The Court first observes that this case falls to be examined under sub-paragraph (b) of Article 5 para. 1, since the purpose of the detention was to secure the fulfilment of Mr Benham’s obligation to pay the community charge owed by him.

40.  The main issue to be determined in the present case is whether the disputed detention was ‘lawful’, including whether it complied with ‘a procedure prescribed by law’. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness ... .

41.  It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with.

42.  A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law.

43.  It was agreed by those appearing before the Court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates’ court which were within its jurisdiction and those which are in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset.

It was further submitted that the appropriate test under English law for deciding whether or not magistrates acted within their jurisdiction was that laid down by the House of Lords in McC. v. Mullan ... The third limb of that test was relevant to the instant case, namely that magistrates exceeded their jurisdiction when they made an order which had no foundation in law because of a failure to observe a statutory condition precedent.

This limb was applied by the Court of Appeal in Manchester City Magistrates’ Court, ex parte Davies ... In that case the appeal court found that magistrates had acted in excess of jurisdiction when they committed a man to prison for non-payment of rates without having carried out the inquiry required by law as to whether his failure to pay was due to culpable neglect.

44.  In each of the two cases referred to above it was necessary for the courts to decide the jurisdictional issue, because at the relevant time damages could be awarded against magistrates who acted in excess of jurisdiction. However, section 108 of the Courts and Legal Services Act 1990 has since changed the law to provide that there is no right to damages unless magistrates acted in bad faith ... For this reason, when the Divisional Court reviewed the magistrates’ order for Mr Benham’s detention, there was no reason under English law for it to decide whether or not the order had been made in excess of jurisdiction.”

The Court has considered the applicants’ arguments that the cases of Benham and Perks were wrongly decided on the basis that the distinction drawn between decisions to detain which were within and outside the jurisdiction of the sentencing tribunal was artificial and erroneous; and that the essential principle of domestic law had recently been expounded by Lord Hope in the above-cited case of Evans.

However, the Court does not regard the Evans case as being capable of casting doubt upon the statement of the law as set out in the above-cited Benham and Perks judgments. The Court recalls that in Evans the validity of the order of the court sentencing the respondent to prison was not in doubt. The House of Lords did not, therefore, have to determine the case on the basis of the distinction between a court order which had been made within jurisdiction and one which had been made in excess of jurisdiction. The issue in Evans was whether the Governor of the prison in which the respondent was kept had correctly calculated the date upon which she was to be released. The Divisional Court held that the Governor had not calculated the date of release correctly and had, as a result, detained the respondent for 59 days beyond the date on which she should have been released. It was agreed by the parties in the House of Lords that her detention for those 59 days, which arose solely out of the Governor’s error in calculating her release date, had therefore been unlawful.

The Court also does not find the above-cited passage of Lord Hope in Evans, relied upon by the applicants, to be of assistance to them. As can be seen from the words of Lord Hope himself, that passage does no more than restate the jurisprudence of this Court that any detention which is unlawful in domestic law will automatically be unlawful under Article 5 § 1 of the Convention. It was precisely the issue of whether the detention was unlawful under domestic law that was under consideration in both Benham and Perks. For that reason, the Court re-iterated the principles of its own case-law at paragraph 42 of the Benham judgment, cited above, including the general rule that a period of detention would in principle be lawful if it was carried out pursuant to a court order.

Indeed, far from challenging that statement of the law, the Court notes that in Evans Lord Hobhouse specifically referred to it. He pointed out that the distinction to which he had alluded between an ex facie invalid order and an order prima facie valid but which was liable to be set aside was not only “basic to any legal system”, but had also been specifically recognised by this Court in the Benham case. Lord Hobhouse proceeded to quote paragraph 42 of the Court’s judgment in Benham in full. Neither Lord Hobhouse, nor any other Law Lord, made any criticism of the approach adopted by this Court in Benham.

The applicants have also failed to persuade the Court that the distinction between acts within and acts outside the jurisdiction was removed by the Anisminic case. The Court notes that the applicants, in making this submission, did not refer to any particular passage of Anisminic, nor to any other domestic case-law.

Moreover, and in any event, the Court regards as significant that the House of Lords in the subsequent above-cited case of McC v. Mullan held that the question to be determined in that case was whether the magistrates had acted within or outside their jurisdiction. The Court recalls that in addressing that question Lord Bridge specifically referred to Anisminic and stated that he did not believe that what he termed “the novel test of excess of jurisdiction which emerges from the Anisminic case” in the context of the supervisory jurisdiction of superior courts over inferior tribunals, to have “any application whatever” to the question of whether the magistrates had acted without or in excess of jurisdiction in the McC case.

Similarly, the Court notes that the Court of Appeal in the above-cited case of R. v. Manchester City Magistrates’ Court, ex parte Davies also considered the Anisminic case and concluded that it was plain that, in the context of whether a magistrate had acted without or in excess of jurisdiction, the word “jurisdiction” had a wider meaning than that given to it by Lord Reid in Anisminic.

It is therefore clear to the Court that neither the House of Lords in McC nor the Court of Appeal in Davies understood the Anisminic case to have abolished the distinction between acts within and acts outside jurisdiction. Indeed, the McC and Davies cases dealt specifically with the question of whether the acts of the magistrates were within or outside their jurisdiction; and those cases were decided after the decision of, and with specific reference to, the House of Lords in Anisminic.

Furthermore, the Court notes that the Court of Appeal in Davies specifically pointed out that the relevant legislation in Northern Ireland was the same as the relevant legislation in England (see section 3 of the heading “Relevant domestic law” above). The Court further notes that the Davies case was decided under English law. The Court is therefore not convinced by the apparent suggestion of the applicants that the distinction between acts within and acts outside the jurisdiction came into play by virtue of section 15 of the Northern Ireland Act 1964, and that that distinction was not one that was established in English law.

The Court recalls that its judgments both in Benham and Perks followed an oral hearing at which each side was represented. The principles of English law to be applied were agreed between the parties. Those principles are set out under section 3 of the heading “Relevant domestic law” above. For the reasons expressed, the Court does not find that either Anisminic or Evans cast doubt upon the validity of the relevant domestic law set out in the Perks and Benham judgments. The Court therefore rejects the applicants’ submissions that those cases were wrongly decided and that the principles of law stated therein should now be reconsidered by the Court. The Court shall therefore proceed to consider the admissibility of the present applications in line with its previous case-law.

B.  Article 5

The applicants complained that their detention was unlawful and contrary to Article 5 § 1 of the Convention, and that, contrary to Article 5 § 5 of the Convention, they were not entitled to compensation therefore under domestic law. Article 5 reads, insofar as relevant, as follows:

Article 5 - Right to liberty and security

“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.”

1.  The parties’ submissions

(a)  The Government

The Government submitted that the same principal considerations were relevant to the present applications as were examined by the Court in the Benham judgment at paragraphs 35-47 and in the Perks judgment at paragraphs 62-74.

They contended that in the present applications all of the complaints under Article 5 raised one or more of three principal arguments: (i) that there was no adequate means inquiry, in the sense that additional evidence could have been demanded and was not or that alternatives to imprisonment were not adequately explored, or that the conclusion reached was not consistent with the evidence in fact adduced; (ii) that there was no further means inquiry where the issue of the warrant of commitment had been postponed on conditions before it was in fact issued; and (iii) that the defaulter was not before the magistrates’ court on the occasion on which a postponed warrant of commitment was issued.

The Government submitted that the first and second of the above issues were considered explicitly by the Court in the Perks judgment, at paragraphs 62-70. The Government pointed out that on that occasion the Court found that it could not be said that the orders in question were not within the jurisdiction of the magistrates’ courts by which they were made.

The Government submitted that, in relation to the third issue, the High Court judgments cited in the relevant consent orders established that in some circumstances the committal of a defaulter in his or her absence would be an unreasonable exercise of the magistrates’ discretion. The Government contended that those domestic judgments did not establish that the magistrates had no jurisdiction to make such orders in those circumstances. The Government drew to the Court’s attention to the fact that one of the applicants in the Perks case, Mr Beattie, had himself been absent when the postponed warrant was issued in his case, but that nevertheless he had not pursued his complaint under Article 5 in front of the Court (see paragraphs 31-34 of the Perks judgment). The Government further pointed out that in each of the present cases the applicant was present before the magistrates’ court when the means inquiry was held.

The Government submitted that there was no indication, whether in the order of the High Court or elsewhere, that the magistrates failed to observe an express statutory condition precedent or made any other error such as to render their decision to commit the applicant in excess of their jurisdiction in any of the present applications. Therefore, the Government submitted that there had not been any violation of Article 5 of the Convention. As Article 5 § 5 of the Convention only applied to victims of arrest or detention in contravention of Article 5, the Government further submitted that the applicants did not, therefore, have any right to enforceable compensation under Article 5 § 5.

(b)  The applicants

(i)  Julie BEET (47676/99)

The applicant noted from the consent order agreed in her case that her costs were to be paid by the justices. The applicant referred to the domestic case of R. v. York City Justices ex parte Farmery (see “Relevant domestic law” above) to submit that it was only in the most exceptional circumstances that the High Court ordered that costs were to be paid by magistrates. The applicant submitted that, given that the high threshold for a costs order was met in her case, the high ‘jurisdictional’ threshold imposed in Benham was also satisfied.

(ii)   Steven DALDRY (58896/00)

The applicant submitted that the failure of the magistrates to make those inquiries that they were required by law to make before committing him to prison, as well as their failure to consider whether to deduct the amounts of community charge outstanding from the applicant’s income support as an alternative to sending him to prison, were jurisdictional errors. In relation to the first issue, the applicant submitted that it was not the adequacy of the inquiry that gave rise to the errors of the magistrates, but their failure to conduct the specific inquiries that were required of them by virtue of regulation 41 of the 1989 Regulations. The applicant further submitted that issuing a warrant of commitment in the knowledge of his serious ill-health was such a perverse decision that it was not merely an ill-judged exercise of discretion, but was so manifestly perverse as to take it beyond the jurisdiction of the magistrates. The applicant further submitted that the cumulative errors made by the magistrates in this case resulted in a breach of Article 5 of the Convention.

(iii)  Alan BROADHURST (69187/01)

The applicant submitted that the orders of the magistrates in his case were made in excess of jurisdiction. He contended that the magistrates failed to conduct the specific inquiries that were required of them by regulation 41 of the 1989 Regulations and regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992 prior to committing him to prison. The applicant further pointed out that the magistrates were criticised for fixing a repayment sum of £8 per week and for not remitting part or all of the sums due. He referred to the multiple errors on the part of the magistrates which had been found by the High Court and submitted that the cumulative effect of the numerous errors made by the magistrates constituted a further reason for finding a breach of Article 5 of the Convention.

(iv)  Ingrid DANN (3859/02)

The applicant noted that the magistrates in her case had failed to have regard to the alternatives to imprisonment. In particular they had failed to have regard to the imposition of a supervision order as they were required to do by section 82(4A) of the Magistrates’ Courts Act 1980. The applicant submitted that this was a jurisdictional error, not merely an incorrect exercise of discretion.

(v)  The remaining applicants

It was noted on behalf of the remaining seven applicants that the reasons given for quashing the orders made in their cases varied. It was explicitly stated on their behalf that it was not argued that the decision to commit them was outside the magistrates’ jurisdiction. The remaining seven applicants instead relied on their submission (considered above) that, in the light of the domestic case of Evans, Benham and Perks were wrongly decided in that the distinction in those cases between decisions inside and outside the magistrates’ jurisdiction was wrongly made. They submitted that, as a consequence, all decisions found to be unlawful by the domestic courts involved a breach of Article 5 of the Convention.

2.  The Court’s assessment

(a)  Admissible applications under Article 5

The Court considers that the complaints of the applicants involving the grounds set out below raise serious issues under Article 5 §§ 1 and 5 of the Convention which require determination on the merits. Directly below each of those grounds, the Court has listed the application(s) in which they arise. It follows that none of those applications can be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints under Article 5 §§ 1 and 5 in those applications inadmissible has been established.

(i)  The magistrates made a finding of culpable neglect without having conducted a proper inquiry into the applicant’s circumstances at the time that the liability became due

Beet (47676/99)

(ii)  The magistrates failed to make separate findings of wilful refusal or culpable neglect in respect of each liability order

Daldry (58896/00)

Broadhurst (69187/01)

(iii)  The magistrates failed to consider the imposition of a supervision order, as required by section 82(4A) of the Magistrates’ Courts Act 1980, as an alternative to imprisonment in a fines case

Dann (3859/02)

(iv)  The magistrates committed the applicant to prison in his absence notwithstanding their knowledge that he had a serious health problem and their knowledge of the reason that he gave for not attending

Daldry (58896/00)

(b)  Inadmissible applications under Article 5

The Court notes that it was specifically stated in the applicants’ observations that it was not argued on behalf of any of the remaining seven applicants that the decision to commit them to prison was outside the jurisdiction of the magistrates. In those circumstances, the Court does not propose to examine this issue further.

The remaining applicants instead relied on their submission (considered above) that Benham and Perks were wrongly decided. It was on that basis alone that they submitted that their detention was in breach of Article 5 of the Convention.

For the reasons expressed above, the Court has rejected that submission. Without demonstrating that the magistrates acted in excess of jurisdiction within the meaning of domestic law, the Court cannot find it established that the imprisonment orders were invalid and thus that the detention of the applicants which resulted from them was unlawful under national law. The Court notes that there was no recorded agreement between the parties that the detention was unlawful in any of these seven applications. Furthermore, the Court recalls that it has had previous occasion to find that the fact that the decision of the magistrates was described as “unlawful” on an application for judicial review did not, without more, equate to a finding that the decision was in excess of jurisdiction and that the subsequent detention was therefore unlawful (see Perks, § 67).

The Court further notes that it has not been suggested in any of the below applications that the magistrates acted in bad faith. The Court does not find any other feature of those applications which could enable it to find that the detention of the applicant was arbitrary within the meaning of Article 5 of the Convention (see §§ 46 and 47 of the above-cited Benham judgment and §§ 63 and 68-70 of the above-cited Perks judgment).

In those circumstances, it follows that the applicants’ complaints under Article 5 § 1 are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The Court observes that Article 5 § 5 of the Convention guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the provisions of Article 5. In the light of its conclusion that the applicants’ complaints under Article 5 § 1 are manifestly ill-founded in the below applications, the Court concludes that Article 5 § 5 is not applicable to their cases and that their complaints under that Article must therefore also be rejected as being manifestly ill-founded (see § 50 of the Benham judgment and § 74 of the Perks judgment).

McAndrew (47675/99)

Ryan (61370/00)

Parkes (3766/02)

Fogg (58923/00)

Telfer (61373/00)

Moore (58927/00)

Rigby (61377/00)

C.  Article 6

The applicants complained under Article 6 §§ 1 and 3(c) that they were not offered legal representation and were not represented at the hearing at which they were sentenced to a term of imprisonment. The applicant Broadhurst (69187/01) further complained that the partial immunity granted to justices from actions for damages under domestic law was contrary to the requirement of access to court under Article 6 § 1 of the Convention.

Article 6 reads, insofar as relevant, as follows:

Article 6 - Right to a fair trial

“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”.

1.  The parties’ submissions

(a)  The Government

The Government affirmed that the considerations relevant to the present complaints under Article 6 in relation to the availability of legal aid were examined by the Court in the Benham judgment at paragraphs 57-64 and in the Perks judgment at paragraphs 75-76.

The Government pointed out that legal aid was made available for such cases with effect from 1 June 1997. As such, any alleged violation in the present cases had been acknowledged and remedied by the Government. In the following applications the Government accepted that the relevant magistrates’ court hearing had taken place before 1 June 1997 and that there was no feature to distinguish them from the findings in the Benham and Perks cases referred to:

Fogg (58923/00), Moore (58927/00), Telfer (61373/00), Rigby (61377/00) and Dann (3859/02).

The Government submitted, however, that there was no indication, whether in the order of the High Court or elsewhere, that any causal link was to be found between the lack of representation and the eventual detention of the applicant. As such, the Government invited the Court to hold that any violation of Article 6 § 3 (c) of the Convention that it may find would constitute sufficient just satisfaction in relation to those applicants.

Referring to the fact that legal aid was made available in this type of case with effect from 1 June 1997, the Government submitted that in relation to the following remaining applicants, whose hearings, they submitted, took place after that date, there had not been any violation of Article 6 § 3(c):

McAndrew (47675/99), Beet (47676/99), Daldry (58896/00), Ryan (61370/00), Broadhurst (69187/01) and Parkes (3766/02).

(b)  The applicants

The applicants noted that, as from 1 April 1997, legal aid was available for hearings where imprisonment was likely to be considered. They averred, however, that legal aid had never been available for all default hearings but had only been available when the court was considering committal to prison. Furthermore, the applicants submitted that it was at the hearing that preceded the hearing at which an applicant was committed to prison that the crucial decisions in the case were made. The applicants submitted, by way of example, that where a finding of culpable neglect had been made at a hearing for which legal aid was not available, the magistrates could not revisit that finding at any subsequent hearing when they were considering whether to commit the applicant to prison and in respect of which legal aid was available.

The applicants proceeded to make specific submissions in relation to whether there had been a causal link between the lack of legal aid for representation and their imprisonment.

(i)  Steven DALDRY (58896/00)

In his response to the observations of the Government, the applicant submitted for the first time, by reference to the case of Colozza v. Italy (judgment of 12 February 1985, Series A No. 89), that his committal to prison in his absence, in particular in the light of his heart condition, was in breach of Article 6 of the Convention. The applicant further submitted that he was not represented. He argued that, had the magistrates adjourned in order to enable him to be present or to enable him to be represented, the committal order would not have been made.

(ii)  Stephen MOORE (58927/00)

The applicant submitted that he was committed to prison at a time when there was no legal aid available for his representation. The applicant argued that the combination of an inadequate inquiry, lack of legal aid for representation and committal in his absence (a point that he raised for the first time under Article 6 by way of response to the observations of the Government) constituted an unfair hearing that breached Article 6 § 1 of the Convention.

(iii)  Edward TELFER (61373/00)

The applicant referred to the acceptance by the magistrates in the consent order that they were wrong to have committed him to prison without ensuring that he had the opportunity for legal representation; and, in the light of the possibility of recovering the outstanding sums by way of deductions from his income support, that they had been wrong to have concluded that no other method of recovery was desirable or practical. The applicant submitted that, had he been represented, the possibility of recovering the outstanding sums by way of deductions from his income support as an alternative to imprisonment would inevitably have been raised on his behalf. He argued that, given the concession by the magistrates, it was difficult to see how it could sensibly be argued that there was no link between his lack of representation and his committal to prison.

(iv)  Josephine RIGBY (61377/00)

The applicant pointed out that, at the time at which she was committed to prison, legal aid for representation was not available. She submitted that, by the time of her committal in March 1997, there had been so many similar cases where decisions to commit to prison had been quashed by the High Court that, had she been represented, the overwhelming probability was that she would not have been sent to prison.

(v)  Alan BROADHURST (69187/01)

The applicant pointed out that the High Court found errors of law in his hearings on both 4 March 1997 and 20 March 2000. He averred that legal aid was not available for the earlier hearing. He submitted that it was at that earlier hearing that the crucial decisions in his case were taken. He argued that, had he been represented at that initial hearing and had the wrongful decisions therefore not been arrived at on that occasion, he could not have been committed to prison at the later hearing.

(vi)  Ingrid DANN (3859/02)

The applicant submitted that, had she been represented, it was inconceivable that her representative would not have addressed the magistrates about the requirement to consider alternatives to imprisonment; and, in particular, the alternative of a supervision order as required by section 82(4A) of the Magistrates’ Courts Act 1980. The applicant argued that, had the magistrates been addressed on that point, they would have been bound to have made a supervision order, given the well-established case-law that imprisonment for non-payment of financial penalties should only be ordered as a last resort.

(vii)  The remaining applicants

No further representations in relation to Article 6 of the Convention were made on behalf of McAndrew (47675/99), Beet (47676/99), Fogg (58923/00), Ryan (61370/00) or Parkes (3766/02).

2.  The Court’s assessment

(a)  The complaints under Article 6 of the applicants Daldry (58896/00) and Moore (58927/00) that their committal orders were issued in their absence

The Court observes that, in their submissions in response to those of the Government about the admissibility and merits of these applications, the applicants Daldry (58896/00) and Moore (58927/00), whose committal orders were issued in their absence, complained that the fact of their absence constituted or contributed towards a violation of Article 6.

The Court notes that, prior to that time, neither applicant had at any stage indicated that they were complaining under Article 6 of the Convention about the fact that their committal took place in their absence. Their complaints under Article 6 were as set out under the heading “Complaints” above. The Court further notes that the applicants have at all times been legally represented in their proceedings before this Court and that their applications to the Court (which require a statement of the alleged violations of the Convention and the relevant arguments in respect thereof) were prepared and submitted to the Court by lawyers.

The Court recalls the requirement under Article 35 § 1 of the Convention for the matter to be brought before it within a period of six months from the date on which the final domestic decision was taken in the process of the exhaustion of domestic remedies. The Court notes that the applicants’ complaint under Article 6 in relation to absence was raised for the first time more than two and a half years after both the conclusion of their domestic proceedings and the dates on which they introduced their applications to this Court; and, indeed, almost eight months after notice of their complaints had been given by the Court to the Government in order to enable the Government to submit their observations on the admissibility and merits of the applications. As such, the applicants’ complaint under Article 6 about the fact that their committal orders were issued in their absence is inadmissible for having failed to comply with the six months requirement under Article 35 § 1 of the Convention.

(b)  Admissible applications under Article 6 §§ 1 and 3(c)

The Court considers that the applicants’ complaints under Article 6 §§ 1 and 3(c), in the specific circumstances described in the headings below, raise serious issues under that Article which require determination on the merits. Directly below each of those headings, the Court has listed the application(s) to which they relate. It follows that none of those applications can be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints under Article 6 §§ 1 and 3 (c) in those applications inadmissible has been established.

(i)  Where the proceedings as a whole took place before 1 June 1997

Fogg (58923/00)

Telfer (61373/00)

Dann (3859/02)

Moore (58927/00)

Rigby (61377/00)

(ii)  Where a term of imprisonment was fixed, albeit postponed on terms, at a hearing which took place before 1 June 1997

Broadhurst (69187/01)

(c)  Inadmissible applications under Article 6 §§ 1 and 3(c)

The Court recalls that, as from 1 June 1997, free legal representation was made available by the Government in respect of the types of proceedings under consideration in this decision (see “Relevant domestic law” above). In the applications listed below, both hearings in respect of the adult applicants’ committal to prison took place after 1 June 1997. As such, the applicants were entitled to apply for free legal representation. There is no indication in their applications that they did so. There is equally no suggestion that they were refused legal representation having requested it, nor that they were prevented from informing themselves as to the representation options available to them. In those circumstances, the Court finds their complaint under Article 6 that they were neither offered legal representation nor represented to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court therefore rejects the following applications under Article 6, pursuant to Article 35 § 4 of the Convention:

McAndrew (47675/99)

Daldry (58896/00)

Ryan (61370/00)

Beet (47676/99)

Parkes (3766/02)

(d)  The submission of the applicant Broadhurst (69187/01) that the partial immunity of the justices from damages was contrary to Article 6 § 1

The Court recalls that the applicant Broadhurst (69187/01) further submitted that the immunity granted to justices from actions for damages under domestic law, unless it could be established that they had acted outside their jurisdiction and in bad faith, was contrary to the requirement of access to court under Article 6 § 1 of the Convention.

The Court considers that the basis of this complaint is the absence of an enforceable right to compensation for unlawful detention. That issue is being considered under Article 5 § 5 of the Convention (which concerns the enforceable right to compensation of a person who has been the victim of detention in contravention of the provisions of Article 5). As such, the Court does not find it necessary to declare this complaint admissible under Article 6 of the Convention as well.

D.  Recapitulation

For these reasons, the Court unanimously

Declares the following applications inadmissible:

McAndrew (47675/99)

Parkes (3766/02)

Ryan (61370/00)

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 5 §§ 1 and 5 of the Convention, in the following applications:

Beet (47676/99)

Broadhurst (69187/01)

Daldry (58896/00)

Dann (3859/02)

Declares inadmissible the applicant’s complaints under Article 5 §§ 1 and 5 of the Convention in the following applications:

Fogg (58923/00)

Telfer (61373/00)

Moore (58927/00)

Rigby (61377/00)

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 §§ 1 and 3(c) of the Convention, in the following applications:

Fogg (58923/00)

Telfer (61373/00)

Broadhurst (69187/01)

Moore (58927/00)

Rigby (61377/00)

Dann (3859/02)

Declares inadmissible the applicant’s complaints under Article 6 §§ 1 and 3(c) of the Convention in the following applications:

Beet (47676/99)

Daldry (58896/00)

Declares inadmissible the complaint under Article 6 of the applicants Daldry (58896/00) and Moore (58927/00) that their committal orders were issued in their absence;

Declares inadmissible the complaint under Article 6 § 1 of the applicant Broadhurst (69187/01) about the justices’ partial immunity from damages under domestic law.

Michael O’BoyleMatti Pellonpää
RegistrarPresident

Table relating to the circumstances of the cases

Name and

application

number

Type of

case/

Days in

prison

Before/

After

1 June

1997

Grounds why order quashed

Barbara

McANDREW

47675/99

CC

One

After

(i)the decision of the justices to issue a sentence of committal to prison and to make an order postponing the issue of the warrant that would have left the threat of imprisonment over the applicant for over five years was unlawful;

(ii)the decision of the justices to commit the applicant to an immediate term of imprisonment in her absence was unlawful in that they could not have been satisfied that she had received proper notice of the hearing.

Julie

BEET

47676/99

CC

Two

After

(See under the heading “The circumstances of the cases” above)

Steven

DALDRY

58896/00

CC

One

After

Judgment of Mr Justice Keene of 12 January 2000

(See under the heading “The circumstances of the cases” above)

Christine

FOGG

58923/00

F

Two

Before

“In view of the applicant’s circumstances, the time that has elapsed since the applicant was imprisoned and the period of time spent in prison, all parties agree that this matter be not remitted to the magistrates.”

Stephen

MOORE

58927/00

F

Three

Before

(i)the decision of the justices was unlawful in that they made insufficient enquiry into the applicant’s means and circumstances in order to have been satisfied as to his wilful refusal or culpable neglect;

(ii)the decision of the justices to issue warrants committing the applicant to a period of 23 days imprisonment in his absence was unlawful.

Anne

PARKES

3766/02

CC

Three

After

The decision of the justices to issue a sentence of committal to prison and to make an order postponing the issue of the warrant that would have left the threat of imprisonment over her for over 4 years was unlawful.

Dennie

RYAN

61370/00

F

Four

After

(i) the decision of the justices to make an order to pay off her fines arrears at the rate of £5 per week, a rate that would have taken her nearly 10 years to have paid off, was unlawful;

(ii) the decision of the justices to issue warrants committing the applicant to a period of 13 days imprisonment in her absence was unlawful.

Edward

TELFER

61373/00

F

Seven

Before

(i) the decision of the justices to consider fixing a term of imprisonment and in issuing a warrant of commitment without ensuring that the applicant had the opportunity for legal representation was unlawful;

(ii) the decision of the justices that no other methods of recovery were desirable or practical, in particular, the opportunity of recovering the outstanding sums by way of deductions from income support, and their failure to record any such reasons as they may have had for rejecting the opportunity of recovering the outstanding sums by way of deductions from income support on the warrant of commitment, was unlawful.

Josephine

RIGBY

61377/00

F

One

Before

“In view of the circumstances of the applicant, the circumstances in which the warrant was issued [and] the period of imprisonment served, all parties agree that the matter be remitted back to the magistrates”.

Alan

BROADHURST

69187/01

CC + CT

Four

Both[1]

Judgment of Mr Justice Gage of 26 October 2000

(See under the heading “The circumstances of the cases” above)

Ingrid

DANN

3859/02

F

One

Before

Judgment of the Divisional Court of 23 March 2000

(See under the heading “The circumstances of the cases” above)

[1] The word “both” signifies that the hearing at which the term of imprisonment was fixed, and then postponed on terms, occurred before 1 June 1997, but the hearing at which the warrant of committal was issued and the applicant was sent to prison occurred after 1 June 1997.

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