EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Applications Nos. 25279/94, 25280/94,

25281/94, 25285/94, 28192/95 and 28456/95

Andrea Rowe, G. M., R. M., L. K.,

Arthur Tilley and John Crane

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

25279/94, 25280/94

25281/94, 25285/94 - i -

28192/95, 28456/95

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-13) 1

C. The present Report

(paras. 14-18)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-59)              3

A. The particular circumstances of the case

(paras. 19-53)              3

B. Relevant domestic law

(paras. 54-59)              8

III. OPINION OF THE COMMISSION

(paras. 60-100) 10

A. Complaints declared admissible

(para. 60) 10

B. Points at issue

(para. 61) 10

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

(paras. 62-81)              10

CONCLUSION

(para. 82) 13

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

(paras. 83-86)              13

CONCLUSION

(para. 87) 14

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

of the Convention

(paras. 88-96)              14

CONCLUSION

(para. 97) 15

F. Recapitulation

(para. 98-100)              15

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              16

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 applicants are United Kingdom citizens.  Before the Commission they are represented by Clyde, Chappell and Botham , solicitors practising in Stoke-on-Trent.

3. The applications are directed against the United Kingdom.  The respondent Government were represented by Mr Martin Eaton, Agent.

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

B. The proceedings

5. 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.

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 applications Nos. 25280/94, 25281/94 and 25285/94 to the respondent Government and to invite the parties to submit written observations on their admissibility and merits.

7. 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 (Eur. Court HR, judgment of 10 June 1996, Reports of Judgments and Decisions, 1996-III, No. 10, p. 738) before the Court.

8. 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.

9. On 2 July 1996 the Commission invited the respondent Government to submit written observations on the admissibility and merits of all of the above applications.

10. 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.

11. On 2 July 1997 the Commission decided, pursuant to Rule 35 of its Rules of Procedure, to join the applications and declared them admissible.

12. 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.

13. 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

14. 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. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

15. 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.

16. 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.

17. The Commission's decision on the admissibility of the applications is annexed hereto.

18. 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

a. In Application No. 25279/94

19. 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).

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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

26. In October 1990, the Newcastle-under- Lyme Magistrates' Court made a liability order in respect of the applicant's unpaid community charge.

27. 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.

28. 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 any possibility of seeking legal representation.  The Council was represented by its recovery manager.

29. 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 sought, inter alia , a declaration that the magistrates' decision had been ultra vires and included a claim for damages.

30. 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.

31. 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... alternatively unreasonable".

32. 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

33. In September 1990, the Newcastle-under- Lyme Magistrates' Court made a liability order in respect of the applicant's unpaid community charge.

34. 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.

35. 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.

36. 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 for leave sought, inter alia , a declaration that the magistrates' decision had been ultra vires and included a claim for damages.

37. 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 ..."

38. 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

39. 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 income support.  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.

40. 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 total deafness and was severely disabled 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.

41. 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.

42. 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 for leave sought, inter alia , a declaration that the magistrates' decision had been ultra vires and included a claim for damages.

43. 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.

44. 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

45. At the relevant time the applicant was on income support and was in poor health.

46. 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.

47. 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.

48. 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 deferred order of imprisonment or to order deductions from the applicant's income support.

49. 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

50. At the relevant time the applicant was an employee earning about £180 per week, on which he was supporting his wife and two children.

51. 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.

52. 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.

53. 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

54. 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 ..."

55. 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.

56. 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.

57. 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."

58. 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.

59. 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

60.   The Commission has declared admissible the applicants' complaints that their detention was unlawful, that they could not obtain compensation therefor, and that legal aid was not available and they were not legally represented before the Magistrates' Courts which committed them to prison.

B. Points at issue

61.   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

62. 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; ..."

63. The applicants complain that their detention was unlawful.  They acknowledge the similarity of their cases to 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) where the Court found no violation of Article 5 para. 1, but consider that the facts of their applications are distinguishable.

64. 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.

65. 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.

66. The applicants submit that under Regulations 41(2) and 41(3) of the 1989 Regulations the Magistrates' Court is under an obligation to exercise a 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, para. 57).

67. The applicants, who indicate in their joint observations that their cases form a distinguishable group, allege that 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.

68. 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 of the Convention.  As a result Article 5 para. 5 of the Convention was not applicable.

69. 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).

70. 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).

71. 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).

72. 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).

73. 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. 55 and 56 above).

74. 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. 58 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).

75. The Commission notes that the High Court's judgments quashing the imprisonment orders in the applicants' cases, albeit worded with variations, state in substance that the magistrates' had failed to consider alternatives to imprisonment as a method to extract payment (see paras. 25, 31, 37, 43, 49 and 53).  This is the flaw which in the applicant's view deprived the magistrates of their jurisdiction to commit to prison and thus rendered their detention orders unlawful (see para. 67).

76. However, it appears that the High Court left open the possibility that the imprisonment orders were within the magistrates' jurisdiction, their flaw being only a fettered exercise of discretion.  Thus, in none of the cases did the High Court clearly state that there had been a failure to observe a statutory condition precedent.  Instead, in the cases of three of the applicants the High Court stated that the magistrates' decisions were "unlawful, alternatively unreasonable" (see paras. 31, 37 and 44).   Two other judgments contain the finding that the failure to consider alternatives to imprisonment rendered the detention orders "flawed" (paras. 25 and 53).  In the remaining judgment under consideration no particular qualification was given (see para. 49).

77. In these circumstances the use of the word "unlawful" in some of the judgments does not appear to amount to a finding, even obiter dicta, of a failure to observe a condition precedent to the exercise of jurisdiction.  It cannot be excluded that the decisions to commit the applicants to prison were "flawed" or "unlawful" in the sense of being an unreasonable exercise of discretion within the Wednesburry doctrine, but nevertheless fell within the jurisdiction of the courts by which they were made.  In this connection the Commission observes that the applicants regard all their cases as falling within the same category of unlawfulness, including the three cases where an alternative of unreasonableness was expressly relied upon by the High Court (see above para. 67).

78. Accordingly, there is no sufficiently strong indication that considering alternatives to imprisonment in proceedings such as those under consideration is regarded as a jurisdictional issue under English law.  The Commission is not convinced by the arguments of the applicants in this respect (see para. 66).

79. Against the above background, it cannot be said with the requisite degree of certainty that the judgments of the High Court in any of the applicants' cases were to the effect that the magistrates acted in excess of jurisdiction within the meaning of English law.

80. Therefore, the Commission does not find that any of the orders for the applicants' detention was invalid, or that the detention which resulted therefrom was unlawful under national law.

81. The Commission further finds that the detention orders in the applicants' cases were not arbitrary or without any basis in domestic law, the flaws which led to their setting aside not having been of such fundamental character (cf. Tsirlis and Kouloumpas , loc. cit., paras. 59-62; Benham , loc. cit., para. 47).

CONCLUSION

82. 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

83. 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."

84. The applicants affirm that their detention was unlawful and submit that under the relevant law it is not possible to obtain compensation for an unlawful detention except in cases of bad faith.

85. The Government maintain that paragraph 5 of Article 5 of the Convention is not applicable in the applicants' case as their detention was in conformity with Article 5 of the Convention.

86. Having concluded that there has been no violation of paragraph 1 of Article 5 of the Convention (see para. 82), the Commission finds that paragraph 5 of this provision was not applicable.

CONCLUSION

87. 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

88. 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;

..."

89. 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.

90. 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).

91. 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.

92. Examining the applicants' complaints under Article 6 paras. 1 and 3(c) of the Convention, the Commission notes that at the relevant time the applicants in applications nos. 25279/94, 25280/94, 25281/94 and 28192/95 were living on income support (see paras. 19, 27, 34, 35 and 45).  The applicant in application no. 25285/94 had unsuccessfully engaged in business and at the relevant time was dependent on his wife's disability benefit (see paras. 39 and 40).  The applicant in application no. 28456/95 was at the relevant time an employee earning £180 per week, on which he was supporting his wife and two children (see para. 50).  Also, the Commission notes that it has not been alleged by the Government that any of the applicants had sufficient means to pay for legal representation.

93. The Commission finds, therefore, that the applicants did not have sufficient means to pay for their legal representation.

94. Accordingly, the Commission must determine whether the interests of justice required that the applicants 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).

95. The Commission notes that the proceedings in which the applicants were committed to terms 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 applicants' imprisonment, which could have been ordered for a term of up to three months (see para. 54).  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).

96. The Commission finds therefore that the interests of justice required that the applicants be provided with free legal representation during the proceedings before the Magistrates' Courts.  However, as in the Benham case, no legal aid for representation in court was available to the applicants (see paras. 21, 27, 28, 35, 40, 46, 51 and 59).

CONCLUSION

97. 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

98. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention (para. 82).

99. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 5 of the Convention (para. 87).

100. 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. 97).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber