AS TO THE ADMISSIBILITY OF
Application No. 28190/95
by Ian POOLE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 July 1995 by
Ian POOLE against the United Kingdom and registered on 9 August 1995
under file No. 28190/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 November 1996 and the observations in reply submitted by the
applicant on 10 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a United Kingdom citizen born in 1965, resides in
Bristol. Before the Commission he is represented by Clyde, Chappell
and Botham, solicitors of Stoke-On-Trent.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
The applicant became liable to pay community charge (poll tax)
on 1 April 1990. On an unspecified date he became liable to pay also
another type of tax, the non-domestic rates.
Between 1986 and 1993 the applicant was a self-employed mechanic.
At an unspecified time in 1993 his business failed, his house was
repossessed and he incurred debts of some £ 20,000. Since then he
lives on income support.
On 15 November 1993 the North Avon Magistrates' Court committed
the applicant to three months in prison for failure to pay both
community charge and non-domestic rates. The applicant was not legally
represented at the committal proceedings.
The applicant served 10 days in prison. He applied for, and was
granted, release on bail and leave to apply for judicial review before
the High Court.
The application for judicial review was not opposed by the local
community charge authority and the Magistrates' Court agreed to sign
a consent order. On 14 March 1995 the High Court quashed the
applicant's committal to prison. The grounds therefor, as agreed upon
between the applicant and the North Avon Magistrates' Court, were that:
1) the Justices acted unlawfully in committing the applicant to prison
in respect of his non-domestic rates as "there had been no attempt to
levy distress, such distress being a condition precedent to
imprisonment"; 2) the imprisonment order had been delivered without
proper regard to the fact that the applicant had significant debts and;
3) it had been unreasonable for the Justices to commit the applicant
to the maximum period of imprisonment in the light of the subsequent
case-law.
The parties agreed that no order for costs should be made. The
High Court accordingly made no order for costs except for the taxation
of the applicant's legal aid costs in the proceedings before it.
B. Relevant domestic law and practice
Regulation 41 of the Community Charges (Administration and
Enforcement) Regulations 1989 ("the 1989 Regulations") provides:
"41. (1) Where a charging authority has sought to levy an
amount by distress under Regulation 39, the debtor is an
individual, and it appears to the authority that no (or
insufficient) goods of the debtor can be found on which to levy
the amount, the authority may apply to a Magistrates' Court for
the issue of a warrant committing the debtor to prison.
41. (2) On such application being made, the court shall (in
the debtor's presence) inquire as to his means and inquire
whether the failure to pay which led to the liability order
concerned being made against him was due to his wilful refusal
or culpable neglect.
41. (3) If (and only if) the court is of the opinion that his
failure was due to his wilful refusal or culpable neglect it may
if it thinks fit - (a) issue a warrant of commitment against the
debtor, or (b) fix a term of imprisonment and postpone the issue
of a warrant until such time and on such conditions (if any) as
the court thinks just."
In Re McC [1985] AC 528, the House of Lords held that magistrates
acted without jurisdiction or in excess of jurisdiction and would be
liable in damages where an individual could show that the magistrates
had no jurisdiction over the cause at all, that they exercised their
powers in a procedural manner that involved a gross and obvious
irregularity, or that the order of the court was not based on any
proper foundation of law because of failure to observe a statutory
condition precedent.
In a case concerning rates, the predecessor to the community
charge (R. v. Manchester City Magistrates' Court, ex parte Davies
[1989] 1 All ER 90), the Court of Appeal found that the magistrates'
discretionary power to imprison a debtor was "limited and
circumscribed" by their obligation to make proper inquiry as to whether
failure to pay rates was due to wilful refusal or culpable neglect.
The magistrates' deficient inquiry meant that they had failed to
observe a statutory condition precedent and therefore acted outside or
in excess of their jurisdiction. The magistrates were liable in
damages for the applicant's unlawful imprisonment.
In R. v. Highbury Corner Magistrates Court ex parte Watkins
(1992) Henry J. said:
"Before the court gets to the stage of inquiring into the
debtor's means, the court must first be satisfied as to their
jurisdiction under Regulation 41 and as to the precise amount
still outstanding. Under Regulation 41 they must be satisfied,
first, that the charging authority has sought to levy an amount
by distress and that it appears to the authority that
insufficient goods of the debtor can be found on which levy the
amount, and they must also be satisfied as to the amount
outstanding i.e. whether anything and if so how much has been
paid since the liability order was made. Both of these things
require to be proved."
In R. v. Bradford Justices ex parte Delaney (1994) Mann LJ said:
"No evidence was given [in the magistrates court] that the
charging authority had sought to levy an amount by distress, and
that it appeared to them that no goods of the debtor could be
found, or that insufficient goods could be found. As it seems
to me, upon a contruction of the Regulation, the demonstration
of those matters is a condition precedent to the justices
proceeding with their means inquiry. The condition precedent
was not satisfied, and thus what followed was ineffective."
On 1 January 1991 Section 108 of the Courts and Legal Services
Act 1990 entered into force. The Act replaces Sections 44 and 45 of
the Justices of the Peace Act 1979 providing, inter alia, that an
action lies against a magistrate who acts beyond jurisdiction if, and
only if, it is proved that he acted in bad faith.
Neither the civil nor the criminal legal aid scheme provides for
full representation before the magistrates in community charge
commitment proceedings. The "Green Form" scheme provides two hours'
worth of help from a solicitor, and can include preparation for a court
case, but does not provide for representation. An extension of the
costs limit can be granted by the Legal Aid Board. Assistance by way
of Representation ("ABWOR") enables the court, in limited
circumstances, to appoint a solicitor who happens to be within the
court precincts for purposes other than the provision of ABWOR to
represent a party who would not otherwise be represented. The
appointment may be made either of the court's own motion or on
application by a solicitor. The court is under no obligation to advise
a party of the possibility of an appointment. The Duty Solicitor
Scheme, which provides representation to accused in criminal cases
before magistrates, does not extend to community charge proceedings.
COMPLAINTS
The applicant complains under Article 5 para. 1 of the Convention
that his detention was unlawful. He also complains under Article 5
para. 5 of the Convention of the lack of compensation for the unlawful
detention.
Under Article 6 of the Convention the applicant submits that
legal aid was not available, he was not legally represented and was not
offered legal representation at the committal hearing.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 July 1995 and registered on
9 August 1995.
On 12 April 1996 the Commission decided to communicate the
application to the respondent Government without asking for written
observations pending the outcome of the case of Benham v. the United
Kingdom before the Court. On 2 July 1996 the Commission invited the
respondent Government to submit written observation on the
admissibility and merits of the application.
The Government's written observations were submitted on
8 November 1996. The applicant replied on 10 March 1997, after an
extension of the time-limit.
THE LAW
1. The applicant complains under Article 5 paras. 1 and 5
(Art. 5-1, 5-5) of the Convention that his detention was unlawful and
that he could not obtain compensation.
Article 5 (Art. 5) of the Convention, insofar as relevant, reads
as follows.
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by
law:
...
b. the lawful arrest or detention of a person for non-
compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Government submit that the present application bears a close
resemblance of Benham v. the United Kingdom (Eur. Court HR, judgment
of 10 June 1996), the existing factual differences being immaterial as
regards the legal outcome. The Government further state that by
agreeing to sign a consent order the Magistrates only recognised, in
the light of subsequent decisions of the High Court, that their own
earlier decision was wrong and would be reversed on appeal. This,
however, in no way affects the lawfulness of this earlier decision.
Consequently, in the Government's submission, the applicant's
detention was lawful and in accordance with a procedure prescribed by
law and, therefore, compatible with Article 5 para. 1 (Art. 5-1) of the
Convention. As a result Article 5 para. 5 (Art. 5-5) of the Convention
was not applicable.
The applicant replies that the facts in the case of Benham v. the
United Kingdom were not sufficiently clear to give rise to a finding
of a violation of Article 5 para. 1 (Art. 5-1), the present case being
distinguishable.
The applicant agrees that the mere fact that a domestic court
erred in making a detention order will not necessarily render the
resulting detention unlawful. However, referring to para. 43 of the
Court's judgment in Benham, the applicant states that a detention
ordered by a Magistrates' Court will be unlawful where the court acted
outside its jurisdiction. Furthermore, it has been accepted that under
United Kingdom law a Magistrates' Court would act in excess of
jurisdiction if it commits a person to prison without first complying
with a statutory condition precedent to its jurisdiction to commit.
The question is, therefore, in the applicant's view, whether in his
case there has been a failure on the part of the domestic court to
observe a statutory condition precedent.
The applicant recalls that the domestic court did not rule
directly on the legality of his detention because under United Kingdom
law there is no right to compensation for unlawful detention (save in
cases of bad faith) and it was therefore irrelevant to distinguish
between an unlawful detention and a detention pursuant to an order
which was wrong. In these circumstances the Commission should examine
the issue itself, using the indications given in the domestic court's
ruling as one element, as the Court did in Benham in paras. 44 - 46 of
that judgment.
The applicant further submits that under the Community Charge
(Administration and Enforcement) Regulations 1989, commitment to prison
cannot lawfully be ordered unless the local community charge authority
have, inter alia, sought without success to "levy distress" by seizing
the debtor's property. Moreover, there is clear authority in United
Kingdom law that the Magistrates' Court is under a duty to inquire
whether a prior attempt has been made by the local community charge
authority to "levy distress". Such an inquiry is a condition precedent
to its jurisdiction to commit to prison. The applicant relies on the
cases of R. v. Highbury Corner Magistrates Court ex parte Watkins
(1992) and R. v. Bradford Justices ex parte Delaney (1994) (see above,
Relevant domestic law and practice).
The applicant alleges that this condition precedent was not
fulfilled in his case, and that therefore there has been a breach of
Article 5 para. 1 (Art. 5-1) of the Convention. Paragraph 5 of this
provision, consequently, was also violated, there being no possibility
to obtain compensation for the unlawful detention.
The applicant finally agrees with the Government that the use of
the "consent order procedure" in his case does not affect the issues
before the Commission.
Having examined the applicant's complaints under Article 5
paras. 1 and 5 (Art. 5-1, 5-5) of the Convention, the Commission finds
that they raise serious questions of fact and law which are of such
complexity that their determination should depend on an examination of
the merits. This part of the application cannot, therefore, be
regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention, and no other ground for
declaring it inadmissible has been established.
2. The applicant complains under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that legal aid was not available, he
was not legally represented and was not offered legal representation
at the committal hearing.
The parties agree that the present case is similar in this
respect to the case of Benham v. the United Kingdom and agree that
there has been a breach of Article 6 paras. 1 and 3 (Art. 6-1+6-3)
taken together.
Having examined the applicant's complaint under Article 6 paras.
1 and 3(c) (Art. 6-1, 6-3-c) of the Convention, the Commission finds
that it cannot be regarded as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and that
no other ground for declaring it inadmissible has been established.
The Commission considers that the determination of this complaint
should depend on an examination of the merits.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy