EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Applications Nos. 25283/94, 25690/94 and 28457/95

M. C., John Deary and Doreen Clark

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

25283/94

25690/94 - i -

28457/95

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. 19-36)              3

A. The particular circumstances of the case

(paras. 19-32)              3

B. Relevant domestic law

(paras. 33-36)              5

III. OPINION OF THE COMMISSION

(paras. 37-70)              7

A. Complaints declared admissible

(para. 37) 7

B. Points at issue

(para. 38) 7

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

(paras. 39-51)              7

CONCLUSION

(para. 52) 9

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

(paras. 53-56)              9

CONCLUSION

(para. 57) 9

E. As regards Article 6 para. 1 of the Convention

(paras. 58-66)              9

CONCLUSION

(para. 67) 11

F. Recapitulation

(paras. 68-70)              11

APPENDIX: DECISION OF THE COMMISSION AS TO

       THE ADMISSIBILITY OF THE APPLICATION 12

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.  They were represented before the Commission 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. 25283/94 was introduced on 12 July 1994 and was registered on 23 September 1994.  Application no. 25690/94 was introduced on 26 October 1994 and was registered on 17 November 1994.  Application no. 28457/95 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 application no. 25283/94 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 (First Chamber) decided to adjourn the examination of this 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.

8. On 28 February 1996 and on 15 May 1996 the Commission (First Chamber) decided to communicate to the respondent Government applications nos. 25690/94 and 28457/95, without requesting written observations, 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 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 to join the applications pursuant to Rule 35 of its Rules of Procedure and to declare 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. 25283/94

19. In October 1990 and August 1991, the Newcastle-under- Lyme Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge (poll tax).

20. On 8 September 1992, 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.  The applicant, who was not represented, gave evidence that:

(a) he had been made redundant from his last employment in 1989;

(b) since then he had lived on Income Support of some £42 per week;

(b) he paid his father £40 per week for board and lodging and the balance of his income went to maintain a life insurance policy which he had taken out while employed.

21. However, the magistrates considered that the applicant in fact had disposable income and ought to have made an offer of payment.  They concluded that the applicant's failure to pay the community charge was due to his wilful refusal and issued a warrant committing him to prison for 30 days.

22. 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.

23. The application for judicial review was heard in the High Court on 13 January 1994.  The applicant was represented and had legal aid for these proceedings. Mr Justice Dyson observed that the purpose of the community charge legislation was to secure the collection of local taxes; the High Court had in similar cases emphasised that imprisonment was to be used as a means of extracting payment and not as a punishment.  He pointed out, however, that the High Court had in one cited case said that the extraction of payment was not the sole purpose of imprisonment.  By failing to give adequate consideration to alternatives to immediate imprisonment - in particular, the imposition of a suspended term of imprisonment - the magistrates failed to have regard to the purpose of the legislation.  The decision to pass an immediate custodial sentence on the first occasion was "plainly perverse and wrong".

24. The judge quashed the magistrates' decision of 8 September 1992 and found the decision to commit "unlawful, alternatively unreasonable".  He remitted the matter to the magistrates' court for reconsideration.  He made a partial award of costs against the magistrates (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.

b. In application no. 25690/94

25. At the relevant time the applicant was a hospital employee earning £130 per week, on which he was supporting his family. 

26. On 4 November 1993 the local Magistrates' Court committed the applicant to 28 days in prison for failure to pay community charge.  His offer to clear his community charge arrears at the rate of £10 per month was declined as it would have taken too long to discharge the obligation.  The applicant was not legally represented at the committal proceedings.

27. 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.

28. On 7 June 1994 the motion for judicial review was allowed and the Magistrates' committal order quashed.  The judgment stated, inter alia :

"When the justices considered the offer of £10 per month they ought to have considered whether this was a reasonable amount, bearing in mind the applicant's means, or whether in their judgment he had means to pay more.  Since the purpose of their powers was to secure the payment of the debt, it was an irrelevant consideration as to how long it would take to pay ... [T]he approach of the justices was flawed as a matter of law and certiorari should lie. ... [T]he purpose of the powers of the court under Regulation 41 are not powers of punishment for past misdeeds, but powers to ensure future payment of past liabilities.  Accordingly I have no hesitation in determining that the justices' approach on this occasion was flawed."

c. Application No. 28457/95

29. At the relevant time the applicant was unemployed, had no income and was dependent on her husband, who was in full time employment.

30. On 30 November 1994 the local Magistrates' Court committed the applicant to 14 days in prison for failure to pay community charge.  At that time the applicant was ill.  She informed the Court about this by presenting a doctor's letter.  The applicant was not legally represented at the committal proceedings.

31. The applicant served 2 days in prison.  She applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.

32. In the judicial review proceedings all parties agreed to settle the matter.  On 16 March 1995 the High Court delivered a consent order quashing the applicant's committal to prison.  The grounds of the consent order read, inter alia :

"The justices were unreasonable in that they failed to have proper regard to the purpose of the imprisonment in such cases, in that prison should be used as a means of coercing payment rather than punishment, in particular having regard to the inability of the applicant to discharge her debt."

B. Relevant domestic law

33. 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 ..."

34.  In ex parte Mould (1992), Kennedy LJ stated inter alia :

"The power to commit to prison which is to be found in [Regulation] 41 is plainly intended to be used as a weapon to extract payment rather than to punish... If a debtor currently has no money and no real prospects of obtaining any, custody can only punish and it will stand in the way of any subsequent attempt to recover the sum which is owed."

35. 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.

36. 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

37.   The Commission has declared admissible the applicants' complaints that their detention was contrary to Article 5 para. 1 of the Convention, 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

38.   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

39. 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; ..."

40. The applicants agree that the orders for their detention were lawful under domestic law as the magistrates did not act in excess of jurisdiction.

41. However, the applicants allege that their detention did not fall within any of the categories of permitted deprivation of liberty in paras. 1(a) to 1(f) of Article 5 of the Convention.  Their detention would have normally fallen under para. 1(b) of Article 5 of the Convention, as imprisonment for failure to pay community charge is intended to secure the fulfilment of the obligation to pay the charge.  However, the High Court overturned the imprisonment warrants in the applicants' cases precisely because, on the facts, there was no prospect that immediate imprisonment would have a coercive effect.  Accordingly, the detention was purely punitive in character and, therefore, could not have been imposed in order "to secure the fulfilment of [an] obligation" within the meaning of Article 5 para. 1(b) of the Convention.  

42. 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, Reports of Judgments and Decisions, 1996-III, No. 10, p. 738), the existing factual differences being immaterial as regards the legal outcome.

43. As regards application no. 28457/95 the Government further state that by agreeing to sign a consent order the magistrates only recognised , in the light of subsequent decisions of the High Court, that their own earlier decision was wrong and would be reversed on appeal.  This, however, in no way affects the lawfulness of this earlier decision.

44. 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.

45. The Commission notes at the outset that in the present case the applicants do not allege that their detention was unlawful or not in conformity with a procedure prescribed by law.  Their only complaint is that their detention was not justified under any of the subparagraphs of Article 5 para. 1 of the Convention.

46. The Commission recalls in this respect that Article 5 para. 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty which must be interpreted strictly (Eur. Court HR, Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 18, para. 41).

47. The Commission notes that in the case of Benham the Court rejected an allegation identical in substance to the claim of the applicants that their detention did not fall under any of the subparagraphs of Article 5 para. 1 of the Convention.  The Court found that detention such as the applicants' fell under subparagraph 1(b) of this provision (see the Benham judgment, loc. cit., pp. 738, 752, paras. 36 and 39).

48. The Commission finds that the applicants have not substantiated any ground for departure from the Court's finding in this respect, their arguments being similar to those advanced in the Benham case.  While it is true that in the present case the decisions of the magistrates to commit the applicants to prison were held to be flawed because they failed to give any or insufficient consideration of the question whether imprisonment would serve to secure the principle aim of Regulation 41, namely to ensure payment of past liabilities, the Commission does not accept the applicants' statement that the imprisonment had a purely punitive aspect and was not intended to serve purposes consistenet with Article 5 para. 1(b) of the Convention.

49. It follows that the applicants' detention fell under para. 1(b) of Article 5 of the Convention.

50. The Commission further recalls 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).  Detention pursuant to a court order may give raise to a violation of Article 5 para. 1 of the Convention 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).

51. However, the Commission finds no indication that in the present case the applicants' detention was arbitrary, or without any foundation in law.

CONCLUSION

52. 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

53. 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."

54.   Affirming that their detention was in contravention of para. 1 of Article 5 of the Convention, the applicants complain that under the relevant law it is not possible to obtain compensation therefor, except in cases of bad faith.

55.  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.

56.    Having concluded that there has been no violation of paragraph 1 of Article 5 of the Convention (see para. 52), the Commission finds that paragraph 5 of this provision was not applicable.

CONCLUSION

57.  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

58.  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;

..."

59. 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.

60. 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).

61. 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.

62. Examining the applicants' complaints under Article 6 paras. 1 and 3(c) of the Convention, the Commission notes that at the relevant time the applicant in application no. 25283/94 was living on income support (see para. 20).  The applicant in application no. 25690/94 was at the relevant time an employee earning £130 per week on which he was supporting his family (see para. 25).  The applicant in application no. 28457/95 was at the relevant time unemployed, had no income and was dependent on her husband, who was in full employment (see para. 29).  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.

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

64. 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).

65. 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. 33 in fine).  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).

66. 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. 20, 26, 30 and 36).

CONCLUSION

67. 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

68. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention (para. 52).

69. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 5 of the Convention (para. 57).

70. 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. 67).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber