EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25277/94

Kevin Perks

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

25277/94 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-30)              3

A. The particular circumstances of the case

(paras. 17-25)              3

B. Relevant domestic law and practice

(paras. 26-30)              4

III. OPINION OF THE COMMISSION

(paras. 31-68)              6

A. Complaints declared admissible

(para. 31) 6

B. Points at issue

(para. 32) 6

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

(paras. 33-49)              6

CONCLUSION

(para. 50) 8

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

(paras. 51-54)              8

CONCLUSION

(para. 55) 9

E. As regards Article 6 paras. 1 and 3(c)

of the Convention

(paras. 56-64)              9

CONCLUSION

(para. 65) 10

F. Recapitulation

(paras. 66-68)              10

APPENDIX: DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a United Kingdom citizen, born in 1953.  He was represented before the Commission by Clyde, Chappell and Botham , solicitors practising in Stoke-on-Trent.

3. The application is directed against the United Kingdom.  The respondent Government were represented by Mr Eaton, Agent.

4. The case concerns the applicant's detention for failure to pay community charge (poll tax) and the lack of legal aid in the proceedings leading to his imprisonment.  The applicant invokes Article 5 paras. 1 and 5 and Article 6 paras. 1 and 3(c) of the Convention.

B. The proceedings

5. The application was introduced on 26 April 1994 and registered on 23 September 1994.

6. On 30 November 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. On 28 February 1995 the Commission decided to adjourn the examination of the application pending the outcome of the case of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996, Reports of Judgments and Decisions, 1996-III, No. 10, p. 738) 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.

8. The Government's observations were submitted on 8 November 1996.  The applicant replied on 10 March 1997, after an extension of the time-limit.

9. On 2 July 1997 the Commission declared the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 18 July 1997 and they were invited to submit such further information or observations on the merits as they wished.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

13. The text of this Report was adopted on 9 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

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

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. As a result of childhood meningitis, the applicant suffers from a number physical and learning difficulties including severe illiteracy.  He requires continuous medication following the removal of a tumour from his heel and experiences severe difficulty in walking.  At all relevant times he has lived on Invalidity Benefit.

18. On 5 June 1991, the Wolverhampton Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge (poll tax).

19. On 15 January 1993, in answer to a summons issued on the application of Wolverhampton Metropolitan Borough Council, the applicant appeared before a stipendiary magistrate for an inquiry to be made into his means and the reasons for his failure to pay the poll tax.  The applicant, who was not represented, gave evidence that:

(a) his income consisted of benefit of £56.70 per week;

(b) he lived with his elder sister, who was also in receipt of benefit, and to whom he paid £15 per week plus contributions toward fuel costs. He had no expenditure on loans or goods ordered on credit;

(c) he had no personal savings;

(d) he had not paid his community charge because he had not received an instalment book (he conceded that he had not in fact requested one). He had not contacted the Council because he did not have the money to make a telephone call.

20. On the basis of this evidence, the magistrate concluded that the applicant's failure to pay the community charge was due to his culpable neglect. The applicant offered to pay £10 per week towards the arrears. The magistrate fixed a term of imprisonment of 30 days but postponed its operation against weekly payments of £10.

21. The applicant paid only two instalments and appeared before the Wolverhampton magistrates on 12 May 1993 on the Council's further application.  He was again unrepresented .  He informed the court that he had been unwell and had spent at least one week in hospital during February 1993.  However, the magistrates concluded that the applicant's circumstances had not changed materially since imposition of the suspended term of imprisonment.  They issued a warrant committing him to prison for 28 days.

22. The applicant spent six days in custody before release on bail pursuant to an order made on 18 May 1993 by a High Court judge, who also granted leave to move for judicial review.  The application included a claim for damages.

23. The application for judicial review was heard in the High Court on 26 October 1993.

24. Mr Justice Harrison held that the mention made by the applicant on 12 May 1993 of a spell in hospital should have prompted the magistrates to make proper enquiries as to his state of health and its effect on his ability to pay.  The absence of inquiry meant that they had failed to take into account a consideration relevant to the exercise of their discretion; had they made adequate inquiry and elicited the facts surrounding the nature of the applicant's illness and disability, it was unlikely that they would have imposed a term of imprisonment, immediate or suspended.

25. The judge quashed the magistrates' decision of 12 May 1993, but considered that their conduct was not so outrageous as to justify an award of costs against them.  The judge did not address the claim for damages.  The applicant has not pursued his claim for damages on the basis of counsel's opinion that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.

B. Relevant domestic law and practice

26. 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.

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

27. 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.

28. 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.

29. 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.

30. 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

31.  The Commission has declared admissible the applicant's complaints that his detention was unlawful, that he could not obtain compensation therefor, and that legal aid was not available for his representation before the Magistrates' Court which committed him to prison.

B. Points at issue

32.   Accordingly, the points at issue in each of the applications are:

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

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

- whether there has been a violation of Article 6 paras. 1 and 3(c) of the Convention.

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

33. Article 5 para. 1 of the Convention, insofar as relevant, provides as follows:

"Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ..."

34. The applicant agrees 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 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.

35. 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 courts' rulings as one element, as the Court did in Benham in paras. 44-46 of that judgment.

36. The applicant submits that under Regulation 41(2) of the 1989 Regulations an inquiry into the defendant's wilful refusal or culpable neglect to pay is clearly a condition precedent to the magistrates' power to commit to prison.  The applicant relies on the text of the statute and also on the Court of Appeal's decision in R. v. Manchester City Magistrates' Court ex parte Davies (see para. 28).

37. The applicant alleges that in his case the Magistrates' Court failed to conduct the inquiry which the 1989 Regulations prescribe and that that can be seen from the findings in the High Court's decision.  Thus, the Magistrates' Court did not conduct a fresh inquiry into his personal and financial circumstances although it had evidence that these circumstances had changed.

38. 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.  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 of the Convention.

39. The Commission must examine 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 (Eur. Court HR, Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 18, para. 47).

40. 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 ( Benham , loc. cit. para. 42).

41. However, detention pursuant to a court order is unlawful where it has been shown that it had no basis in domestic law or was arbitrary (cf. Eur. Court HR, Tsirlis and Kouloumpas v. Greece judgment of 29 May 1997, Reports of Judgments and Decisions 1997-III, pp. 909, 924, para. 62).

42. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law.  However, since under Article 5 para. 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Convention organs can and should exercise a certain power to review whether this law has been complied with (see the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 21, para. 49).

43. The Commission notes that the United Kingdom law relevant to the present application distinguishes between acts of a magistrates' court which are within its jurisdiction and those which are in excess of jurisdiction.  The former are valid and effective unless or until they are overturned by a superior court, whereas the latter are null and void from the outset (see paras. 27 and 28 above).

44. In the present case, not having the benefit of a formal ruling of a domestic court on the lawfulness of the applicant's detention - which was the consequence of the operation of Section 108 of the Courts and Legal Services Act 1990 (see para. 29 above) - the Commission must examine whether it can be said, with the practically possible degree of certainty, that the applicant's detention was unlawful under domestic law (cf. Benham v. the United Kingdom judgment, loc. cit., para. 46).

45. The Commission notes that the magistrates' decision to order the applicant's imprisonment was based on their finding that his circumstances had not changed since January 1993 when they had considered that his failure to pay community charge had been due to his culpable neglect (see paras. 20 and 21).  It appears, therefore, that the magistrates made an inquiry as to whether the failure to pay was due to culpable neglect.

46. Also, when quashing the imprisonment order, the High Court only criticised the lack of inquiry as to the changes in the applicant's state of health in view of the mention of a spell in hospital in February 1993 (see para. 24).

47. In these circumstances it cannot be said with any degree of certainty that the deficiencies in the imprisonment order were of such nature as to give rise to a lack of jurisdiction on the part of the magistrates' to commit to prison (cf. Benham , loc. cit., para. 46).

48. Therefore, the Commission does not consider that the order for the applicant's detention was invalid, or that the detention which resulted therefrom was unlawful under national law.

49. The Commission further finds that the detention order in the applicant's case was not arbitrary or without any basis in domestic law, the flaws which led to its setting aside not having been of such fundamental character (cf. Tsirlis and Kouloumpas , loc. cit., paras. 59-62; Benham , loc. cit., para. 47).

CONCLUSION

50. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention.

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

51. Article 5 para. 5 of the Convention reads as follows.

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

52. The applicant affirms that his detention was unlawful and submits that under the relevant law it is not possible to obtain compensation for an unlawful detention except in cases of bad faith.

53. The Government maintain that paragraph 5 of Article 5 of the Convention is not applicable in the applicant's case as his detention was in conformity with Article 5 of the Convention.

54. Having concluded that there has been no violation of paragraph 1 of Article 5 of the Convention (see para. 50), the Commission finds that paragraph 5 of this provision was not applicable.

CONCLUSION

55. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 5 of the Convention.

E. As regards Article 6 paras. 1 and 3(c) of the Convention

56. Article 6 of the Convention, insofar as relevant, provides as follows.

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

c. ... if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so              require;

..."

57. The parties are of the opinion that in respect of the legal aid issue the present case is similar to the case of Benham v. the United Kingdom and agree that there has been a violation of Article 6 paras. 1 and 3(c) of the Convention.

58. The Commission recalls that an issue going to the merits of a case has to be examined independently of the attitude of the respondent State (Eur. Court HR, H. v. France judgment of 24 October 1989, Series A no. 162, p. 20, para. 47; No. 28858/95, Dec. 25.11.96, D.R. 87, p. 130).

59. The Commission recalls the Court's finding in the Benham judgment (loc. cit., para. 56) that paragraph 3 of Article 6 of the Convention is applicable to proceedings in the United Kingdom before a Magistrates' Court for failure to pay the community charge.

60. Examining the applicant's complaint under Article 6 paras. 1 and 3(c) of the Convention, the Commission notes that at the relevant time he was living on a disability benefit (see para. 17).  Also, the Commission notes that it has not been alleged by the Government that the applicant had sufficient means to pay for legal representation.

61. The Commission finds, therefore, that the applicant did not have sufficient means to pay for his legal representation.

62. Accordingly, the Commission must determine whether the interests of justice required that the applicant be provided with free legal assistance (cf. Benham v. the United Kingdom judgment, loc. cit., para. 60).  In answering this question, regard must be had to the severity of the penalty at stake and the complexity of the case (Eur. Court HR, Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, pp. 17-18, paras. 32-38).

63. The Commission notes that the proceedings in which the applicant was committed to a term of imprisonment for failure to pay the community charge were identical to those in the Benham v. the United Kingdom case (loc. cit.).  The proceedings resulted in the applicant's imprisonment, which could have been ordered for a term of up to three months (see para. 26).  Also, the application of the relevant substantive domestic law involved the determination of questions of some complexity, such as the issue whether or not there had been culpable neglect (cf. the Benham judgment, loc. cit., paras. 61 and 62).

64. The Commission finds therefore that the interests of justice required that the applicant be provided with free legal representation during the proceedings before the Magistrates' Court.  However, as in the Benham case, no legal aid for representation in court was available to the applicant (see paras. 19, 21 and 30).

CONCLUSION

65. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3(c) of the Convention.

F. Recapitulation

66. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention (para. 50).

67. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 5 of the Convention (para. 55).

68. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3(c) of the Convention (para. 65).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber