EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25286/94

S. D.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-30) 3

A. The particular circumstances of the case

(paras. 17-25) 3

B. Relevant domestic law and practice

(paras. 26-30) 4

III. OPINION OF THE COMMISSION

(paras. 31-70) 6

A. Complaints declared admissible

(para. 31) 6

B. Points at issue

(para. 32) 6

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

(paras. 33-48) 6

CONCLUSION

(para. 49) 8

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

(paras. 50-56) 8

CONCLUSION

(para. 57) 9

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

of the Convention

(paras. 58-66) 9

CONCLUSION

(para. 67) 10

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 applicant is a United Kingdom citizen, born in 1966.  Before the Commission he was represented by Clyde, Chappell and Botham , solicitors practising in Stoke-on-Trent.

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

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

B. The proceedings

5. The application was introduced on 19 July 1994 and registered on 23 September 1994.

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

7. On 28 February 1995 the Commission decided to adjourn the examination of the application pending the outcome of the case of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996, Reports of Judgments and Decisions, 1996-III, No. 10, p. 738) before the Court.  On 2 July 1996 the Commission invited the respondent Government to submit written observation on the admissibility and merits of the application.

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

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

10. The text of the Commission's decision on admissibility was sent to the parties on 16 July 1997 and they were invited to submit such further information or observations on the merits as they wished.

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

C. The present Report

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

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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

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

( i ) to establish the facts, and

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

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

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

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant suffers from learning difficulties; he left school without formal qualifications and cannot read or write.  Despite training in the building trade, he has been unable to find work.  He lives with his partner and their three year-old child.

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

19. On 7 October 1992, the applicant appeared at Wolverhampton Magistrates' Court, on application of Wolverhampton Metropolitan 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 was then living on Income Support of 67 per week and that his benefit was subject to deductions in repayment of a Social Fund loan taken out to cover expenditure for the child.

20. The magistrates rejected the applicant's proposals to pay the arrears at the rate of 10 per week or alternatively to make full payment within two days by borrowing from a friend.  They concluded that the applicant's failure to pay the community charge was due to his culpable neglect and issued a warrant committing him to prison for 14 days.

21. The applicant spent at least six days in custody before release on bail pursuant to an order made on 12 October 1992 by a High Court judge, who also granted leave to move for judicial review.  The application included a claim for damages.

22. The application for judicial review was heard in the High Court on 14 October 1993.

23. Mr Justice Schiemann was sympathetic to the submission that by committing the applicant to prison and failing to give adequate consideration to alternative methods of disposal - in particular, the possibility of direct weekly deductions from income support in the event the full amount was not paid within two days as proposed by the applicant - the magistrates had failed to consider whether the non-payment was due to wilful refusal or culpable neglect.

24. The Court stated, inter alia :

"[Counsel for the applicant says that pursuant to Regulation 41(2) of [the 1989 Regulations} the justices must not only make inquiries into the debtor's arrears at the time of the committal hearing, but also 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.  It appears from the [applicant's] affidavit which I have before me that this course was not adopted.  In those circumstances I have no doubt that it is right to quash the order of commitment which was made by the Magistrates and I do so."

25. The judge quashed the magistrates' decision of 7 October 1992, and declined to consider the claim for damages.  By a further decision on 14 March 1994, he held that the magistrates' conduct had not been so "extreme" as to justify an award of costs against them.  The applicant has not pursued his claim for damages on the basis of counsel's opinion that it would be impossible to establish the requisite element of "bad faith" on the part of the magistrates.

B. Relevant domestic law and practice

26. Regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 ("the 1989 Regulations") provides:

"41. (1) Where a charging authority has sought to levy an amount by distress under Regulation 39, the debtor is an individual, and it appears to the authority that no (or insufficient) goods of the debtor can be found on which to levy the amount, the authority may apply to a Magistrates' Court for the issue of a warrant committing the debtor to prison.

41. (2) On such application being made, the court shall (in the debtor's presence) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect.

41. (3) If (and only if) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit - (a) issue a warrant of commitment against the debtor, or (b) fix a term of imprisonment and postpone the issue of a warrant until such time and on such conditions (if any) as the court thinks just.

...

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

27. In Re McC [1985] AC 528, the House of Lords held that magistrates acted without jurisdiction or in excess of jurisdiction and would be liable in damages where an individual could show that the magistrates had no jurisdiction over the cause at all, that they exercised their powers in a procedural manner that involved a gross and obvious irregularity, or that the order of the court was not based on any proper foundation of law because of failure to observe a statutory condition precedent.

28. In a case concerning rates, the predecessor to the community charge (R. v. Manchester City Magistrates' Court, ex parte Davies [1989] 1 All ER 90), the Court of Appeal found that the magistrates' discretionary power to imprison a debtor was "limited and circumscribed" by their obligation to make proper inquiry as to whether failure to pay rates was due to wilful refusal or culpable neglect.  The magistrates' deficient inquiry meant that they had failed to observe a statutory condition precedent and therefore acted outside or in excess of their jurisdiction.  The magistrates were liable in damages for the applicant's unlawful imprisonment.

29. On 1 January 1991 Section 108 of the Courts and Legal Services Act 1990 entered into force.  The Act replaces Sections 44 and 45 of the Justices of the Peace Act 1979 providing, inter alia , that an action lies against a magistrate who acts beyond jurisdiction if, and only if, it is proved that he acted in bad faith.

30. Neither the civil nor the criminal legal aid scheme provides for full representation before the magistrates in community charge commitment proceedings.  The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation.  An extension of the costs limit can be granted by the Legal Aid Board.  Assistance by way of Representation ("ABWOR") enables the court, in limited circumstances, to appoint a solicitor who happens to be within the court precincts for purposes other than the provision of ABWOR to represent a party who would not otherwise be represented.  The appointment may be made either of the court's own motion or on application by a solicitor.  The court is under no obligation to advise a party of the possibility of an appointment.  The Duty Solicitor Scheme, which provides representation to accused in criminal cases before magistrates, does not extend to community charge proceedings.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

B. Points at issue

32. Accordingly, the points at issue in 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

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

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

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

b. the lawful arrest or detention of a person for

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

34. The applicant considers that the courts which imprisoned him did not have power to commit him to prison, so that his detention was unlawful.

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

36. The applicant recalls that the domestic court did not rule directly on the legality of his detention because under United Kingdom law there is no right to compensation for unlawful detention (save in cases of bad faith) and it was therefore irrelevant to distinguish between an unlawful detention and a detention pursuant to an order which was wrong.  In these circumstances the Commission should examine the issue itself, using the indications given in the domestic courts' rulings as one element, as the Court did in Benham in paras. 44-46 of that judgment.

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

38. The applicant alleges that in his case the Magistrates' Court failed to conduct the inquiry which the 1989 Regulations prescribe and that that can be seen from the findings in the High Court's decision.  Thus, the Magistrates' Court entirely failed to inquire whether the failure to pay was due to the applicant's wilful refusal or culpable neglect.

39. The Government submit that the present application bears a close resemblance of the case of Benham v. the United Kingdom (loc. cit.), the existing factual differences being immaterial as regards the legal outcome.  Consequently, in the Government's submission, the applicant's detention was lawful and in accordance with a procedure prescribed by law and, therefore, compatible with Article 5 para. 1 of the Convention.

40. 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).

41. 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).

42. 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).

43. 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).

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

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

46. In this respect the Commission attaches importance to the finding of the domestic court that the magistrates did not "inquire whether the [applicant's] failure to pay ... was due to his wilful refusal or culpable neglect" (see para. 24).  This finding was apparently based on the fact that the magistrates had failed to make enquiries into the applicant's circumstances at the time of accumulation of the arrears (see para. 23).

47. The Commission further notes that according to the relevant domestic case-law (see paras. 27 and 28) the magistrates' failure to inquire as to whether the non-payment was due to wilful refusal or culpable neglect amounted to a failure to observe a condition precedent to their jurisdiction to commit to prison.

48. It appears, therefore, that it can be said with a strong degree of certainty that in the applicant's case, when ordering his detention, the magistrates' acted in excess of jurisdiction and that, accordingly, the applicant's detention was unlawful under domestic law (cf. Benham judgment, loc. cit , para. 46). 

CONCLUSION

49. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention.

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

50. Article 5 para. 5 of the Convention, insofar as relevant, provides 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."

51. The applicant submits that, by virtue of Section 108 of the Courts and Legal Services Act 1990, he was deprived of the "enforceable right to compensation" guaranteed by Article 5 para. 5 of the Convention.

52. The Government, considering that the detention of the applicant pursuant to the magistrates' order was not unlawful within the meaning of Article 5 para. 1 of the Convention, submit that Article 5 para. 5 of the Convention is not applicable.

53. The Commission recalls its conclusion that the applicant's detention was unlawful and therefore in breach of Article 5 para. 1 of the Convention (see para. 49 above).

54. Also, it appears undisputed that under United Kingdom law, after the entry into force of Section 108 of the Courts and Legal Services Act 1990 (see para. 29 above), it is not possible to obtain compensation in circumstances such as the applicant's without establishing that the magistrates had acted in bad faith.

55. However, paragraph 5 of Article 5 of the Convention requires an enforceable right to compensation to those who have been the victims of arrest or detention in contravention of the provisions of Article 5 (see Wassink v. the Netherlands judgment of 27 September 1990, Series  A no. 185-A, p. 14, para. 38) regardless of the fact whether or not the detention was ordered in bad faith.

56. It follows that the applicant was deprived of his right to compensation, as guaranteed by Article 5 para. 5 of the Convention.

CONCLUSION 

57. The Commission concludes, unanimously, that in the present case there has been a 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 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. 19).  Also, the Commission notes that it has not been alleged by the Government that the applicant had sufficient means to pay for legal representation.

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

64. 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).

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

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

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 a violation of Article 5 para. 1 of the Convention (para. 49).

69. The Commission concludes, unanimously, that in the present case there has been a 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