AS TO THE ADMISSIBILITY OF
Application No. 25279/94 Application No. 25280/94
by Andrea ROWE by G. M.
against the United Kingdom against the United Kingdom
Application No. 25281/94 Application No. 25285/94
by R. M. by L. K.
against the United Kingdom against the United Kingdom
Application No. 28192/95 Application No. 28456/95
by Arthur TILLEY by John CRANE
against the United Kingdom against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 27 April 1994,
27 June 1994, 27 June 1994, 24 June 1994, 26 July 1995 and 24 August
1995 by Andrea ROWE, G. M., R. M., L. K., Arthur TILLEY and John CRANE
against the United Kingdom and registered on 23 September 1994,
23 September 1994, 23 September 1994, 23 September 1994, 9 August 1995
and 6 September 1995 under files Nos. 25279/94, 25280/94, 25281/94,
25285/94, 28192/95 and 28456/95 respectively;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 November 1996 and the observations in reply submitted by the
applicants on 10 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are United Kingdom citizens. Before the Commission
they are represented by Clyde, Chappell and Botham, solicitors
practising in Stoke-on-Trent.
The facts, as presented by the parties, may be summarised as
follows.
A. Particular circumstances of the cases
a. In Application No. 25279/94
The applicant was at all relevant times suffering from back
difficulties and asthma which have left her unfit for work. At the
relevant period of time she received income support in the form of
sickness benefit. Between September 1991 and July 1992, the Middleton
Magistrates' Court ordered the issue of liability orders in respect of
the applicant's unpaid community charge (poll tax).
On 26 May 1993, in answer to a summons issued on the application
of Rochdale Metropolitan Borough Council, the applicant appeared at the
Middleton Magistrates' Court for an inquiry to be made into her means
and the reasons for her failure to pay the poll tax.
The applicant, who was not represented, gave evidence that her
income consisted of benefits amounting to some £46 per week; that she
had approached the Metropolitan Council with a view to arranging direct
deductions from income support towards her poll tax arrears; and that
a Council officer had advised her to contact the Council's
representative at court and that there would be "no problems" in
arranging deductions.
On the basis of the evidence before them, the magistrates
concluded that the applicant's failure to pay the community charge was
due to her culpable neglect and issued a warrant committing her to
prison for 90 days, the maximum permitted by law.
The applicant spent three days in custody before release on bail
pursuant to an order made on 28 May 1993 by a High Court judge, who
also granted leave to move for judicial review.
The application for judicial review was heard in the High Court
on 29 October 1993. The Court observed that the purpose of the
community charge legislation was to secure the collection of local
taxes and not punishment.
In its decision quashing the magistrates' decision of 26 May 1993
the Court stated inter alia:
"...[T]he justices failed to exercise their discretion
correctly. They could (and should) have directed themselves as
to the possibility ... of deduction from income support of the
sums due. The fact that the [magistrates' clerk]'s affidavit is
silent as to whether the justices considered this course leads
me to think that they misdirected themselves and that their
decision ... was flawed."
b. In Application No. 25280/94
In October 1990, the Newcastle-under-Lyme Magistrates' Court made
a liability order in respect of the applicant's unpaid community
charge.
On 5 November 1991, the applicant was brought before the same
court, on a warrant issued on the application of Newcastle Borough
Council, for an inquiry to be made into his means and the reasons for
his failure to pay the poll tax. The applicant, who was not
represented, gave evidence that he had been made redundant by his
employer some six months previously, had recently separated from his
wife and was living on income support.
On the basis of this evidence, the magistrates concluded that the
applicant's failure to pay the community charge was due to his wilful
refusal. They fixed a term of imprisonment of 14 days but postponed its
operation against weekly payments of £8 towards the arrears. The
applicant failed to maintain these payments and returned to court on
18 August 1992 on the Council's further application. He was again
unrepresented. He gave evidence that his weekly income was income
support of £47.50 and that his weekly outgoings amounted to £46. The
magistrates issued a warrant committing him to prison for 14 days. At
neither hearing was the applicant advised of the possibility of seeking
legal representation. The Council was represented by its recovery
manager.
The applicant spent several hours in custody before bail and
leave to apply for judicial review were granted on the same day. The
application for leave included a claim for damages.
The application for judicial review was heard by the High Court
on 12 January 1994. The applicant was represented throughout the leave
application and substantive judicial review hearing but had legal aid
only for the latter.
In its decision quashing the applicant's committal to prison the
Court stated inter alia:
"...[I]t is clear on the evidence that these magistrates failed
to consider any alternative to imprisonment. It would appear
that they rather lost patience with the applicant... They
decided immediately on the prison option without considering the
alternative ways there were in which to exercise the discretion
vested in them... [T]hey fettered their discretion in that they
failed to have regard to the purpose of the legislation, namely
the collection of local government taxes... [T]his was plainly
an unlawful and wrong approach to the purpose of imprisonment.
Accordingly ... the decision of 18 August 1992 to commit the
applicant to prison was unlawful."
The Court further considered that the magistrates had made a
genuine error of law and that their conduct was not so grievous as to
justify an award of costs against them. The Court did not address the
claim for damages. The applicant has not pursued his claim for damages
on the basis of counsel's opinion that it would be impossible to
establish the requisite element of "bad faith" on the part of the
magistrates.c. In Application No. 25281/94
In September 1990, the Newcastle-under-Lyme Magistrates' Court
made a liability order in respect of the applicant's unpaid community
charge.
On 16 July 1991, in answer to a summons issued on the application
of Newcastle Borough Council, the applicant appeared at the same court
for an inquiry to be made into his means and the reasons for his
failure to pay the poll tax. Although the applicant was at all relevant
times living on income support, the magistrates concluded that his
failure to pay the community charge was due to his culpable neglect.
They fixed a term of imprisonment of 7 days but postponed its operation
against monthly payments of £20 towards the arrears. On 8 October 1991,
at the request of the applicant, the court varied the terms of
postponement to monthly payments of £10. The applicant failed to
maintain these payments and was brought back before the magistrates on
5 May 1992 when a further means inquiry was held and the terms of
postponement varied so as to require payments of £26 every two weeks.
The applicant was unrepresented on each of these occasions.
Following further failure to maintain payments, the applicant
again appeared in court on 4 August 1992, still unemployed and in
receipt of income support. He was again unrepresented. He advised the
magistrates that his liability to make repayments under a loan
agreement was about to come to an end, so that he would in future be
able to make payments to clear the remaining poll tax arrears which
then stood at approximately £40. The magistrates issued a warrant
committing him to prison for 5 days.
The applicant spent several hours in custody before release on
bail pursuant to an order made the same day by a High Court judge, who
also granted leave to move for judicial review. The application
included a claim for damages.
The application for judicial review was heard by the High Court
on 12 January 1994. The applicant was represented and had legal aid for
these proceedings. Mr. Justice Dyson stated inter alia:
"[The magistrates] failed to have regard to the purpose of the
legislation by failing to consider the alternative of deducting
the applicant's arrears from his income support. The failure to
consider that alternative was, in my view, an unlawful fetter of
their discretion. Undoubtedly, Regulation 41(3) of the [1989
Regulations] does require the justices to exercise a
discretion...
I grant a declaration that the decision was unlawful,
alternatively unreasonable ..."
The judge quashed the magistrates' decision of 4 August 1992. He
made a partial award of costs against them (on the limited basis that
they should have consented to the application for judicial review
before the hearing) but did not address the claim for damages. The
applicant has not pursued his claim for damages on the basis of
counsel's opinion that it would be impossible to establish the
requisite element of "bad faith" on the part of the magistrates.d.In
Application No. 25285/94
From 1988 onwards, after losing his employment, the applicant had
a number of self-employed occupations, producing little or no income.
He was ineligible for unemployment benefit during periods of
inactivity. From about the end of 1992, when a small retail business
he had established in February that year ceased trading owing some
£30,000, the applicant was dependent on benefit claimed by his wife.
In 1991 and 1992, the Stoke-on-Trent Magistrates' Court ordered the
issue of a liability order in respect of the applicant's unpaid
community charge.
On 11 August 1992, in answer to a summons issued on the
application of Stoke-on-Trent City Council, the applicant appeared at
the same court for an inquiry to be made into his means and the reasons
for his failure to pay the poll tax. The Council was represented by its
recovery manager. The applicant, who was not represented, gave evidence
that:
(a) he set up the retail business, with the aid of a
substantial mortgage, in early 1992. He had previously been
unemployed. His business outgoings amounted to some £2,000 per
month. He found it difficult to stock the shop adequately.
(b) he presently drew no income from the business, but hoped
that it would shortly produce sufficient income to enable himself
and his wife each to pay £10 per week towards their poll tax
arrears.
(c) his wife suffered almost severe deafness and suffered from
severe invalidity as a result of a recent operation. She was in
receipt of disability benefit of some £41 per week. The applicant
was obliged to care for her in addition to managing the business.
On the basis of this evidence, the magistrates concluded that the
applicant's failure to pay the community charge was due to his culpable
neglect. They rejected the applicant's offer to pay £10 per week
towards the arrears and issued a warrant committing him to prison for
7 days.
The applicant spent several hours in custody before release on
bail pursuant to an order made on 11 August 1992 by a High Court judge,
who also granted leave to move for judicial review. The application
included a claim for damages.
The application for judicial review was heard in the High Court
on 12 January 1994. The applicant was represented and had legal aid for
part of these proceedings. Mr Justice Dyson observed that by committing
the applicant to prison on his first appearance, after a "fairly
summary" investigation of his means, the magistrates had failed to give
consideration to alternative methods of disposal - in particular, the
possibility of remitting (i.e. cancelling) all or part of the debt.
The judge held the magistrates' decision of 11 August 1992
"unlawful, alternatively unreasonable" and quashed it. He made a
partial award of costs against them (on the limited basis that they
should have consented to the application for judicial review before the
hearing) but did not address the claim for damages. The applicant has
not pursued his claim for damages on the basis of counsel's opinion
that it would be impossible to establish the requisite element of "bad
faith" on the part of the magistrates.e. In Application No. 28192/95
At the relevant time the applicant was on income support and was
in poor health.
On 26 May 1993 the local Magistrates' Court committed him to
50 days in prison for failure to pay community charge. He was not
legally represented at the committal proceedings.
The applicant served 5 days in prison. He applied for, and was
granted, release on bail and leave to apply for judicial review before
the High Court.
On 26 January 1995 the High Court quashed the applicant's
committal to prison as the Magistrates' Court had failed to consider
possible alternatives to immediate imprisonment, such as to impose a
postponed imprisonment order or to order deductions from the
applicant's income support.
The Court stated inter alia:
"However wilful the behaviour of the applicant may have been, if
on the day of the hearing he indicates that he is, however
foolishly, without resources, then the right course for the
justices is to consider whether or not to make [an order].
Indeed, in the absence of compelling reasons... one of [the]
alternatives must be pursued rather than imprisonment. The case
law makes that plain."
f. In Application No. 28456/95
At the relevant time the applicant was an employee earning about
£180 per week, on which he was supporting his wife and two children.
On 3 August 1993 the applicant appeared before the local
Magistrates' Court in respect of his arrears of community charge. He
made an offer to pay off these arrears at a rate of £ 10 per week. The
Court noted that the applicant had failed, on an earlier occasion, to
pay £ 10 per week and found that the applicant had culpably neglected
to pay the community charge. He was committed to 28 days in prison. The
applicant was not legally represented at the committal proceedings.
The applicant served 9 days in prison. He applied for, and was
granted, release on bail and leave to apply for judicial review before
the High Court.
On 14 March 1995 the High Court quashed the applicant's committal
to prison. The Court stated, inter alia:
"There is no reference here that the Justices [g]ave any
consideration to the exercise of their power under
Regulation 41(3)(b) to fix a term of imprisonment and postpone
the issue of the warrant on condition that £ 10 a week, or such
greater amount as the Justices thought reasonable, be paid.
This should have been considered. The implication is that it was
not and, accordingly, the decision must be regarded as flawed
and has to be quashed, as it now is."
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. Middleton Magistrates ex parte Phillips (1993) Potts J.
stated inter alia:
"[A] court which finds a debtor guilty of wilful refusal to pay
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 the justices
to consider all available alternatives to effect recovery of the
sum due...
It is clear... that the justices failed to consider the issue of
wilful refusal and the question of appropriate disposal
separately as they should have done. It does not follow that,
because the applicant had wilfully refused to pay the relevant
sum, there was the no alternative other than an immediate
sentence of imprisonment. Regulation 41(3)(b) makes that
plain...
In my view the approach of the justices ... and the decision to
commit this applicant to prison was in the circumstances
fundamentally flawed. The decision must be quashed."
On 1 January 1991 Section 108 of the Courts and Legal Services
Act 1990 entered into force. The Act replaces Sections 44 and 45 of the
Justices of the Peace Act 1979 providing, inter alia, that an action
lies against a magistrate who acts beyond jurisdiction if, and only if,
it is proved that he acted in bad faith.
Neither the civil nor the criminal legal aid scheme provides for
full representation before the magistrates in community charge
commitment proceedings. The "Green Form" scheme provides two hours'
worth of help from a solicitor, and can include preparation for a court
case, but does not provide for representation. An extension of the
costs limit can be granted by the Legal Aid Board. Assistance by way
of Representation ("ABWOR") enables the court, in limited
circumstances, to appoint a solicitor who happens to be within the
court precincts for purposes other than the provision of ABWOR to
represent a party who would not otherwise be represented. The
appointment may be made either of the court's own motion or on
application by a solicitor. The court is under no obligation to advise
a party of the possibility of an appointment. The Duty Solicitor
Scheme, which provides representation to accused in criminal cases
before magistrates, does not extend to community charge proceedings.
COMPLAINTS
The applicants complain under Article 5 paras. 1 and 5 of the
Convention that their detention was unlawful and that they could not
receive compensation.
Under Article 6 paras. 1 and 3 (c) of the Convention the
applicants submit that legal aid was not available and they were not
legally represented before the Magistrates' Courts which committed them
to prison.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 25279/94 was introduced on 27 April 1994 and was
registered on 23 September 1994. Application No. 25280/94 was
introduced on 27 June 1994 and was registered on 23 September 1994.
Application No. 25281/94 was introduced on 27 June 1994 and was
registered on 23 September 1994. Application No. 25285/94 was
introduced on 24 June 1994 and was registered on 23 September 1994.
Application No. 28192/95 was introduced on 26 July 1995 and was
registered on 9 August 1995. Application No. 28456/95 was introduced
on 24 August 1995 and was registered on 6 September 1995.
On 30 November 1994 the Commission communicated to the respondent
Government Applications Nos. 25280/94, 25281/94 and 25285/94.
On 28 February 1995 the Commission decided to adjourn the
examination of these applications pending the outcome of the case of
Benham v. the United Kingdom before the Court.
Application No. 25279/94 was communicated to the respondent
Government on 18 October 1995; Application No. 28192/95 - on 12 April
1996; and Application No. 28456/95 - on 15 May 1996. No written
observations were requested, pending the outcome of the Benham case.
On 2 July 1996 the Commission invited the respondent Government
to submit written observations on the admissibility and merits of all
applications.
The Government's written observations were submitted on
8 November 1996. The applicants replied on 10 March 1997, after an
extension of the time-limit.
THE LAW
1. The Commission, having regard to the similarities of the
applications, finds it convenient to join them in accordance with
Rule 35 of its Rules of Procedure.
2. The applicants complain under Article 5 paras. 1 and 5
(Art. 5-1, 5-5) of the Convention that their detention was unlawful and
that they could not obtain compensation.
Article 5 (Art. 5) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
b. the lawful arrest or detention of a person for non-
compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Government submit that the present applications bear a close
resemblance of Benham v. the United Kingdom (Eur. Court HR, judgment
of 10 June 1996), the existing factual differences being immaterial as
regards the legal outcome. Consequently, in the Government's
submission, the applicants' detention was lawful and in accordance with
a procedure prescribed by law and, therefore, compatible with Article 5
para. 1 (Art. 5-1) of the Convention. As a result Article 5 para. 5
(Art. 5-5) of the Convention was not applicable.
The applicants reply that the facts in the case of Benham v. the
United Kingdom were not sufficiently clear to give rise to a finding
of a violation of Article 5 para. 1 (Art. 5-1), the present cases being
distinguishable.
The applicants agree that the mere fact that a domestic judge
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 applicants state 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 applicants' view, whether in their cases
there has been a failure on the part of the domestic court to observe
a statutory condition precedent.
The applicants recall that the domestic court did not rule
directly on the legality of their 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
courts' rulings as one element, as the Court did in Benham in
paras. 44-46 of that judgment.
The applicants submit that under Regulations 41(2) and 41(3) of
the 1989 Regulations the Magistrates' Court is under an obligation to
exercise discretion as to the type of measure to be taken against the
debtor. Considering alternatives to imprisonment is thus a condition
precedent to the magistrates' jurisdiction to commit the debtor to
prison. The applicants rely on the text of the statute and also on the
Court of Appeal's decision in R. v. Middleton Magistrates ex parte
Phillips (1993) (see above, Relevant domestic law and practice).
The applicants allege that in their cases the Magistrates' Courts
failed even to consider possible alternatives to imprisonment and that
that can be seen from the findings in the High Court's decisions. On
this basis their cases are to be distinguished from a situation where
a Magistrates' Court embarks on a consideration of alternatives to
imprisonment, but errs in its decision. By failing to consider
alternatives to imprisonment the Magistrates' Courts in the applicants'
cases did not satisfy a condition precedent and as a result acted in
excess of jurisdiction.
Therefore, in the applicants' view there have been breaches of
Article 5 para. 1 (Art. 5-1) of the Convention. The applicants also
submit that paragraph 5 of this provision, consequently, was also
violated, there being no possibility to obtain compensation for the
unlawful detention.
Having examined the applicants' complaints under Article 5
paras. 1 and 5 (Art. 5-1, 5-5) of the Convention, the Commission finds
that they raise serious questions of fact and law which are of such
complexity that their determination should depend on an examination of
the merits. This part of the application cannot, therefore, be regarded
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other grounds for declaring it
inadmissible has been established.
3. The applicants complain under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that legal aid was not provided
before the Magistrates' Court.
The parties agree that the present case is similar in this
respect to the case of Benham v. the United Kingdom and agree that
there has been a breach of Article 6 paras. 1 and 3 (Art. 6-1+6-3)
taken together.
Having examined these complaints, the Commission finds that they
cannot be regarded as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and that no other
ground for declaring them inadmissible has been established. The
Commission considers that the determination of these complaints should
depend on an examination of the merits.
For these reasons, the Commission,
DECIDES TO JOIN APPLICATIONS NOS. 25279/94, 25280/94, 25281/94,
25285/94, 28192/95 AND 28456/95;
unanimously,
DECLARES THE APPLICATIONS 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