EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28048/95

Alan Thomas Beattie

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

28048/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-34)              3

A. The particular circumstances of the case

(paras. 16-27)              3

B. Relevant domestic law and practice

(paras. 28-34)              4

III. OPINION OF THE COMMISSION

(paras. 35-80)              7

A. Complaints declared admissible

(para. 35) 7

B. Points at issue

(para. 36) 7

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

(paras. 37-61)              7

CONCLUSION

(para. 62) 10

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

(paras. 63-66)              11

CONCLUSION

(para. 67) 11

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

of the Convention

(paras. 68-76)              11

CONCLUSION

(para. 77) 12

F. Recapitulation

(paras. 78-80)              12

APPENDIX: DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 13

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 1971 and resident in Preston.  He was represented before the Commission by Ms Deborah Still, a solicitor of Rochdale Law Centre , Rochdale , Lancashire .

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 14 July 1995 and registered on 28 July 1995.

6. On 28 February 1996 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, without inviting the parties to submit written observations pending the outcome  before the Court 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).  On 2 July 1996 the Commission invited the respondent Government to submit written observations on the admissibility and merits of the application.

7. The Government's observations were submitted on 8 November 1996.  The applicant replied on 10 March 1997, after an extension of the time-limit.  On 15 April 1997 the Commission granted the applicant legal aid for the representation of his case.

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

9. 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.

10. 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

11. 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

12. 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.

13. 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.

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

15. 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

16. The applicant became liable to pay the community charge (poll tax) on 31 March 1990.

17. On 16 September 1992, at a hearing before the local Magistrates' Court, the Preston Borough Council sought to commit the applicant to prison as he had not made any payments pursuant to the community charge liability orders issued against him.  The applicant was present at the hearing and told the Court that he was in receipt of income support.  The Court issued a suspended order of 28 days in prison, the suspension being on condition that the applicant pay £2 per week.

18. The applicant was not legally represented at the hearing.

19. The applicant failed to make any payments.  Upon the request of the local Borough Council the Preston Magistrates' Court decided to hold a hearing on the matter on 2 December 1992.  The purpose of the hearing was to establish the reasons for the applicant's failure to pay.

20. On 2 December 1992 the applicant did not appear before the Court.  The Court committed the applicant to prison for 28 days on the basis, apparently, that his failure to pay was due to his culpable neglect.

21. The applicant was arrested on 26 February 1993 and served 6 days in prison.  On 4 March 1993 he was released pursuant to an order granting his solicitors' application for release on bail and for leave to apply for judicial review.

22. In his application for judicial review the applicant claimed that the Magistrates' Court had failed to consider the opportunity for direct deductions from his income support.  In respect of the applicant's absence from the hearing before the Magistrates' Court on 2 December 1992 the application only mentioned that the applicant had "failed to attend".  The application did not rely on this fact as a ground for judicial review.

23. In the judicial review proceedings there were submitted several affidavits dealing mainly with the manner in which the Magistrates' Court had assessed on 16 September and 2 December 1992 the reasons for the applicant's failure to pay community charge.

24. In an affidavit submitted by Mr L., an officer at the local Borough Council, it was mentioned inter alia that a notice for the hearing of 2 December 1992 had been sent to the applicant.

25. Another affidavit, of a trainee solicitor, stated inter alia :

"Mr. L also advised me that a letter was sent out by recorded delivery to the applicant's address..., inviting him to attend the Magistrates' Court on the 2nd of December 1992 ... The applicant advised me ... that he had not received that letter but his mother recalled a recorded delivery letter arriving and handing the same to him."

26. The affidavit of Frederick Wood, Justice of the Peace, who was the Chairman of the Bench at the hearing on 2 December 1992, made no mention of the issue whether the Magistrates' Court, when committing the applicant to prison, was satisfied or not that he had received a notice of the hearing.

27. The application for judicial review was not opposed by the local community charge authority and the Magistrates' Court agreed to sign a consent order.  Consent was reached apparently on the basis of a reduction in the total amount owed by the applicant, together with an order for the making of deductions from the applicant's income support.  On 18 January 1995 the High Court quashed the applicant's committal to prison.

B. Relevant domestic law and practice

28. 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 ..."

29. 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.

30. 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.

31. 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.

32. Section 11 (3) of the Magistrates' Courts Act 1980, prior to its amendment by Schedule 10 to the Criminal Justice and Public Order Act 1994, read as follows:

"A Magistrates' Court shall not in a person's absence sentence him to imprisonment or detention in a detention centre or make an order under Section 23 of the Powers of Criminal Courts Act 1973 that a suspended sentence passed on him shall take effect".

The word "sentence" is defined in Section 150(1) of the Magistrates' Courts Act 1980 as follows:

"Sentence" does not include a committal in default of payment of any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone".

33. As regards the legal consequences when a debtor has not received proper notice of a hearing before a Magistrates' Court, in R. v. Northampton Justices ex parte Newell (1992), Lord Justice Scott stated:

"... it goes without saying that it would be essential in, I would think, every case that the debtor be given proper notice of the time and place of the proposed application.  If that were not done, the hearing would, I think, be fatally flawed.  It is to be expected that, if the debtor were not present, the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor.

But if a debtor, having received proper notice, chooses not to attend, that is his affair, and for the magistrates to proceed in his absence cannot, in my opinion, possibly be represented as being in breach of the requirements of fairness or of natural justice". 

34. 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

35. 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

36. Accordingly, the points at issue in the present case 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

37. 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; ..."

38. The applicant states that on 2 December 1992 the magistrates ordered his imprisonment in his absence and without satisfying themselves that he had received a notice of the hearing and that, therefore, his detention was unlawful.  Furthermore, he was not protected from arbitrariness.

39. The applicant agrees that the mere fact that a domestic court erred in making a detention order will not necessarily render the resulting detention unlawful.  However, referring to para. 43 of the Court's judgment in Benham , the applicant states that a detention ordered by a Magistrates' Court will be unlawful where the court acted outside its jurisdiction.  Furthermore, it has been accepted that under United Kingdom law a Magistrates' Court would act in excess of jurisdiction if it commits a person to prison without first complying with a statutory condition precedent to its jurisdiction to commit.  The question is, therefore, in the applicant's view, whether in his case there has been a failure on the part of the domestic court to observe a statutory condition precedent.

40. The applicant submits that the Commission should examine itself whether or not his detention was unlawful under United Kingdom law, this issue not having been ruled upon in his case by a domestic court (as neither the grounds for his application for judicial review, nor the grounds for the consent order were based upon the issue now claimed to have made the detention unlawful).  The applicant also states that the use of the "consent order procedure" in his case does not affect the issues before the Commission.

41. The applicant submits that in his case the Magistrates' Court failed to inquire whether he had received the requisite notice of the hearing of 2 December 1992.  There was evidence that the Court was satisfied that the notice had been posted.  However, this was not the issue which the Magistrates' Court was required to investigate.  What it had to investigate as a condition precedent to its jurisdiction to imprison him, was whether the applicant had received notice of the hearing.  This requirement was clearly established in R. v. Northampton Justices ex parte Newell (1992) (see above para. 33).

42. The applicant answers the remaining arguments of the Government by stating that Section 11(3) of the Magistrates' Court Act has no relevance in the case, as illustrated by the relevant case-law.  Furthermore, it was incorrect to state that the decision to imprison had been taken at the hearing in September 1992.  The warrant for the applicant's arrest was issued on 2 December 1992, when he was not present.

43. Consequently the applicant alleges that the Magistrates' Court in his case acted on 2 December 1992 in excess of jurisdiction, and that therefore there has been a breach of Article 5 para. 1 of the Convention.

44. The Government submit that the present application resembles, in some respects, the case of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996).

45. The Government state that under United Kingdom law the decision to imprison the applicant was in fact taken on 16 September 1992, at a hearing at which the applicant was present.  On 2 December 1992, when the applicant was not present, the Magistrates' Court merely decided to execute the warrant of commitment to prison.  Furthermore, it follows from Section 11(3) of the Magistrates' Courts Act (1980), as in force at the relevant time (see above para. 32), that on 2 December 1992 the Magistrates' Court was free to proceed in the applicant's absence when deciding to execute the commitment warrant.

46. In any event, the Government submit that the applicant's statement that he had not received a notice of the hearing is not supported by any evidence.  At the same time there exists evidence to the contrary, contained in the affidavits of Mr. L and of a trainee solicitor.  In these circumstances, as the applicant was duly informed of the hearing, it was lawful to proceed on 2 December 1992 in his absence.

47. 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.

48. The Government state that in any event, based on paras. 46 and 47 of the judgment in Benham v. the United Kingdom (Eur. Court HR, loc. cit.), the applicant's detention was in conformity with Article 5 para. 1 of the Convention.

49. 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).

50. 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).

51. 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).

52. 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).

53. 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. 29 and 30 above).

54. In the present case, as distinguished from the case of Benham v. the United Kingdom (loc. cit.), when examining the question whether or not the applicant's detention was lawful, the Commission cannot rely on any albeit indirect finding of a domestic court.  This is due to the fact that the applicant's application for judicial review was unopposed, that the magistrates signed a consent order, and that neither the grounds for the judicial review application, nor the grounds for the consent order, as far as they have been substantiated, were based upon the issue now claimed to have made the detention unlawful (see paras. 22, 27 and 40 above).

55. Nevertheless 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).

56. The Commission need not decide whether a failure on the part of the magistrates' to inquire into whether or not a person in the situation of the applicant had received a notice for a committal hearing renders unlawful a detention order issued at such a hearing as it finds that in any event the applicant's complaint under Article 5 para. 1 of the Convention has not been supported by sufficient evidence.  For the same reason the Commission does not deem it necessary to deal with the Government's assertion that under the relevant law it sufficed that the applicant was present at the hearing on 16 September 1992 and that the magistrates were free to proceed in his absence on 2 December 1992.

57. The Commission notes that, according to two affidavits submitted for purposes of the judicial review proceedings, a notice informing the applicant about the hearing of 2 December 1992 was sent by recorded delivery and the applicant's mother recalled having received a recorded delivery letter and handing the same to him (see paras. 24 and 25).

58. No further evidence on this question  was adduced in the judicial review proceedings.  Furthermore, the question whether or not the magistrates' inquired as to whether the applicant had received the notice for the hearing was not discussed in the affidavits (see para. 26).  This was not surprising given that the applicant did not raise the issue, his application for judicial review having been based on other arguments (see para. 22).

59. However, the Commission cannot speculate as to what evidence would have come to light on the issue of whether or not the magistrates inquired about the receipt of the notice for the hearing had this issue been raised in the judicial review application and had it been fully argued.

60. In the present circumstances, having noted the existence of elements which put certain doubt on the applicant's version of the facts (see para. 57) the Commission is unable to find with any degree of certainty that when ordering the applicant's detention on 2 December 1992 the magistrates acted in excess of jurisdiction and that the applicant was imprisoned in violation of the relevant domestic law.

61. Nor does the Commission find that the detention order in the applicant's case was arbitrary or without any basis in domestic law, there being no indication that the flaws which led to its setting aside by consent were of such fundamental character (cf. Tsirlis and Kouloumpas , loc. cit., paras. 59-62; Benham , loc. cit., para. 47).

CONCLUSION

62. 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

63. 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."

64. 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.

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

66. Having concluded that there has been no violation of paragraph 1 of Article 5 of the Convention (see para. 62), the Commission finds that paragraph 5 of this provision was not applicable.

CONCLUSION

67. 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

68. 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;

..."

69. 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.

70. 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).

71. 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.

72. 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 income support (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.

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

74. 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).

75. 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. 28).  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).

76. 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. 18 and 34).

CONCLUSION

77. 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

78. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention (para. 62).

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

80. 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. 77).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

            to the First Chamber of the First Chamber