Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24842/94 Application No. 25276/94

by Anthony REDFERN by Albert ASHLEY

against the United Kingdom against the United Kingdom

Application No. 25278/94 Application No. 25282/94

by Darren GRATTON by Paul HOGG

against the United Kingdom against the United Kingdom

Application No. 25284/94 Application No. 26063/94

by Daryl MEIKLEHAM by Adrian GREEN

against the United Kingdom against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 26 October 1994,

31 March 1994, 24 May 1994, 7 July 1994, 12 July 1994 and 5 December

1994 by Anthony REDFERN, Albert ASHLEY, Darren GRATTON, Paul HOGG,

Daryl MEIKLEHAM and Adrian GREEN against the United Kingdom and

registered on 17 November 1994, 23 September 1994, 23 September 1994,

23 September 1994, 23 September 1994 and 21 December 1994 under files

Nos. 24842/94, 25276/94, 25278/94, 25282/94, 25284/94 and 26063/94,

respectively;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are United Kingdom citizens. At the pertinent

time they were aged under 21. Before the Commission they are

represented by Clyde, Chappell & Botham, solicitors practising in

Stoke-on-Trent.

The facts, as submitted by the parties, may be summarised as

follows.

A. Particular circumstances of the cases

a. Application No. 24842/94

On 16 February 1993 the applicant was committed by the Alfreton

Magistrates' Court to 90 days in prison for failure to pay community

charge (poll tax). He was not legally represented at the committal

proceedings and was not informed of any right to legal representation.

At the time the applicant was unemployed.

The applicant served 16 days in a young offender's centre until

3 March 1993 when he applied for, and was granted, release on bail and

leave to apply for judicial review before the High Court.

In the judicial review proceedings the magistrates agreed to a

consent order. The grounds therefor, as agreed upon between the

applicant and the Alfreton Justices, were that the imprisonment order

had been delivered without proper regard to: 1) the purpose of

imprisonment in such cases, namely extracting the liability; 2) the

alternatives to imprisonment in the circumstances of the case, and in

particular the possibility to obtain payment through attachment of

income support; 3) the provisions of Regulation 42(7) of the Community

Charges (Administration and Enforcement) Regulations 1989 ("the 1989

Regulations") (see below Relevant domestic law and practice).

On 9 August 1994 the High Court quashed the order of 16 February

1993 for the applicant's committal to prison.

b. Application No. 25276/94

The applicant has been unemployed since leaving the Government

Youth Training Scheme in 1990. In 1992, the Newcastle-under-Lyme

Magistrates' Court ordered the issue of liability orders in respect of

the applicant's unpaid community charge (poll tax). These orders were

made in respect of the full amount of community charge set by

Newcastle-under-Lyme Borough Council for the relevant years, the

Council having failed to credit the applicant with community charge

benefit despite being aware that he had been in receipt of income

support.

On 21 January 1993 the applicant was brought before the same

court, on a warrant issued on the application of the 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 lived on income support and was under 21 years of age.

However, the magistrates concluded that his failure to pay the

community charge was due to his wilful refusal. They rejected the

applicant's offer to pay £5 per week towards the arrears by way of

direct deduction from his benefit and issued a warrant committing him

to prison for 28 days. The Council was represented by its recovery

manager.

The applicant spent one day in custody before release on bail

pursuant to an order made on 22 January 1993 by a High Court judge, who

also granted leave to move for judicial review. The application

included a claim for damages.

The application for judicial review was heard in the High Court

on 12 October 1993. The applicant was represented and had legal aid

for these proceedings. Mr Justice Laws accepted the applicant's

argument that the magistrates should only have imprisoned him if the

court was of the opinion that no other method of dealing with him was

appropriate and that in such a case, they were required to state in

open court why they thought that no other method of dealing with him

was appropriate. The magistrates were aware that the applicant was

aged under 21 at the date of the hearing, but failed to state in open

court and in the warrant, as required by the legislation, their reasons

for rejecting alternatives to imprisonment.

The judge also 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

means of extracting payment and not as a punishment. By failing to

address alternatives to immediate imprisonment - in particular, the

possibility of imposing a suspended term of imprisonment against the

weekly payments offered by the applicant, or alternatively direct

weekly deductions from income support - the magistrates had not

observed their statutory responsibilities.

The judge noted that the case went to "an important aspect of the

Magistrates' Court's jurisdiction". He declared the decision of

21 January 1993 unlawful and quashed it. He declined to award costs

against either the magistrates or the Council and did not address the

claim for damages. The applicant has not pursued his claim for damages

on the basis of counsel's opinion, for which he had legal aid, that it

would be impossible to establish the requisite element of "bad faith"

on the part of the magistrates.

c. Application No. 25278/94

On 8 February 1993, after the conclusion of criminal proceedings

against the applicant at Alfreton Magistrates' Court and following the

departure of his solicitor, the applicant was called back into court

to answer an application by the local authority for an inquiry to be

made into his means and the reasons for his failure to pay the

community charge.

The applicant had received no prior notice of the hearing and was

not advised of any possibility of obtaining legal representation. The

applicant informed the magistrates that for most of the period during

which he had been liable for the poll tax, he had been in receipt of

income support; however, the local authority had failed to credit him

with community charge benefit. He had variously lived in bail hostels

or with his mother and had spent some time sleeping rough.

At the time of the hearing the applicant was living on income

support. He made an offer to pay the arrears at the rate of £5 per

week and proposed in the alternative that the arrears be recovered by

direct deductions from his benefit. The magistrates rejected these

proposals and issued a warrant committing the applicant to prison for

90 days, the maximum permitted by law.

On 23 February 1993, a High Court judge granted the applicant

bail and leave to move for judicial review. A claim for damages was

attached to the application.

The application for judicial review was heard by the High Court

on 25 November 1993. The applicant was represented and had legal aid

for these proceedings. Mr Justice MacPherson recalled that the High

Court had in similar cases emphasised that imprisonment, or its threat,

were to be used as means of extracting payment and not as a punishment.

Immediate imprisonment of a person of negligible means would merely

extinguish the debt rather than secure its payment. Whatever the

magistrates' view of the offer of £5 per week, their failure to

entertain deduction from income support as a viable alterative to

imprisonment constituted a "fundamental flaw" in their decision, which

was quashed accordingly.

The judge considered the magistrates had failed to consider, as

they should have, the "viable alternative of the council accepting an

order of attachment to income support". In connection with costs, he

considered that they had erred, but not "flagrantly or outrageously".

He refused to award costs against the magistrates and declined to

consider the claim for damages. In his view, fresh proceedings for

damages were "very unlikely" to succeed. The judge found it

unnecessary to consider a further argument that the proceedings might

be flawed because the applicant was under 21 when he was sentenced.

d. Application No. 25282/94

In 1991, Grimsby Magistrates' Court ordered the issue of

liability orders in respect of the applicant's unpaid community charge

(poll tax).

On 26 March 1993, in answer to a summons issued on the

application of Great Grimsby 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. On the basis of this

inquiry, the magistrates concluded that the applicant's failure to pay

the community charge was due to his culpable neglect. They fixed two

concurrent terms of imprisonment of 14 days (one term for each

financial year's liability) but postponed the issue of warrants against

payments of £10 every two weeks towards the arrears.

The applicant failed to maintain these payments and returned to

court on 20 October 1993 on the Council's further application. He gave

the following evidence:

(a) he was living on income support of some £69 every two weeks;

(b) his family had recently broken up (his mother had left);

(c) he had until recently paid rent of £25 per week to his

brother, but had not been entitled to housing benefit in respect

of this liability. He had now moved into new accommodation and

would receive benefit to cover his rent;

(d) he had found employment which would commence a few days after

the hearing and would therefore be able to make increased

payments towards the arrears.

The magistrates issued warrants committing the applicant to

prison for 12 days in respect of each year's liability. At neither

hearing was the applicant advised of the possibility of seeking legal

representation. The Council was represented by its recovery manager.

The applicant spent eight days in custody before release on bail

pursuant to an order made on 28 October 1993 by a High Court judge, who

also granted leave to move for judicial review. The application

included a claim for damages.

The application for judicial review was heard in the High Court

on 30 June 1994. The applicant was represented and had legal aid for

these proceedings. Mr Justice MacPherson accepted that, although the

applicant was aged under 21 at the date of the hearing, the magistrates

had failed to state their reasons for rejecting alternatives to

imprisonment in open court, as required by the legislation. The judge

also observed that the right course was to do everything possible to

obtain payment of the money before "the big stick of imprisonment is

wielded". In the circumstances, the magistrates' failure to address

alternatives to immediate imprisonment was a "fatal flaw" in their

decision.

The judge declared the magistrates' decision of 20 October 1993

unlawful and quashed it. However, he considered that the magistrates'

conduct was not so grievous as to justify an award of costs against

them. The judge did not address the claim for damages. The applicant

has not pursued his claim for damages on the basis of counsel's opinion

that it would be impossible to establish the requisite element of "bad

faith" on the part of the magistrates.

e. Application No. 25284/94

On 1 October 1991 and 16 January 1992, the Leeds Magistrates'

Court ordered the issue of liability orders in respect of the

applicant's unpaid community charge.

On 3 December 1992, in answer to a summons issued on the

application of Leeds 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 applicant, who was not represented,

gave evidence that:

(a) he had been dismissed from employment that day as a result

of taking the time off to attend court and had thus lost his sole

source of income;

(b) he was now dependent on his wife, who was in low-paid full

time employment.

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 or culpable neglect or both. They rejected an offer by the

applicant, made after discussion with his wife, to pay £4 per week

towards the arrears and issued a warrant committing the applicant to

prison for 42 days. At no time was the applicant advised of the

possibility of seeking legal representation. The Council was

represented by its recovery manager.

The applicant spent eleven days in custody before release on bail

pursuant to an order made on 14 December 1992 by a High Court judge,

who also granted leave to move for judicial review. The application

included a claim for damages.

The application for judicial review was heard in the High Court

on 14 January 1994. The applicant was represented in these proceedings

although was no longer financially eligible for legal aid. 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 means of

extracting payment and neither as a punishment nor, as in this case,

as a deterrent in the light of what the magistrates considered

"politically orchestrated" non-payment of the poll tax. The

magistrates had to give adequate consideration to an alternative to

immediate imprisonment - in particular, the possibility of accepting

the offer of £4 a week and imposing a suspended term of imprisonment

against the applicant's offer of periodical payments. The judge also

pointed out that the magistrates could not, in a criminal case, have

ordered imprisonment as a deterrent to others.

The judge accepted that the magistrates were aware that the

applicant was aged under 21 at the date of the hearing, but had failed

to state in open court, as required by the Criminal Justice Act 1982,

their reasons for rejecting alternatives to imprisonment.

The judge declared the magistrates' decision of 3 December 1992

unlawful and quashed it. 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.

f. Application No. 26063/94

At the relevant time the applicant was in low paid employment.

On 3 March 1993 the local Magistrates' Court committed the

applicant to 28 days in prison for failure to pay community charge.

He was not legally represented at the committal proceedings.

The applicant served 3 days in prison. He applied for, and was

granted, release on bail and leave to apply for judicial review before

the High Court.

As a result of the imprisonment the applicant lost his job.

In the judicial review proceedings the Magistrates' Court agreed

to sign a consent order on the grounds that the decision to commit to

prison had been unlawful. On 9 June 1994 the High Court quashed the

applicant's committal to prison.

The High Court made no order for costs except for the taxation

of the applicant's legal aid costs in the proceedings before it.

B. Relevant domestic law and practice

a) 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."

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.

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.

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.

b) Section 1 (5) of the Criminal Justice Act 1982, which is applied

to community charge proceedings according to Regulation 42 (7) of the

1989 Regulations, prohibits a court from ordering the detention of a

person under 21 years of age unless of the opinion that no other method

of dealing with him is appropriate; Section 1 (5A) requires a

magistrates' court to state in open court and in the warrant of

commitment its reasons for reaching such an opinion.

On 12 October 1993 in the case of Ashley the High Court dealt

with an application for judicial review based on the failure of the

magistrates to comply with their statutory responsibility under

Regulation 42 (7). The High Court made a declaration that the

magistrates' decision was unlawful.

c) 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.

COMPLAINTS

The applicants complain under Article 5 para. 1 of the Convention

that their detention was unlawful and under Article 5 para. 5 that they

could not receive compensation.

The applicants complain under Article 6 of the Convention that

legal aid was not available before the Magistrates' Court when they

were committed to prison.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 24842/94 was introduced on 26 October 1994 and

was registered on 17 November 1994. Application No. 25276/94 was

introduced on 31 March 1994 and was registered on 23 September 1994.

Application No. 25278/94 was introduced on 24 May 1994 and was

registered on 23 September 1994. Application No. 25282/94 was

introduced on 7 July 1994 and was registered on 23 September 1994.

Application No. 25284/94 was introduced on 12 July 1994 and was

registered on 23 September 1994. Application No. 26063/94 was

introduced on 5 December 1994 and was registered on 21 December 1994.

On 6 December 1994 the Commission communicated to the respondent

Government Applications Nos. 25276/94, 25278/94, 25282/94 and 25284/94.

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 before the Court.

Application No. 24842/94 was communicated to the respondent

Government on 18 October 1995, and Application No. 26063/94 on

28 February 1996. No written observations were requested, pending the

outcome of the Benham case.

On 2 July 1996 the Commission invited the respondent Government

to submit written observations on the admissibility and merits of all

applications.

The parties have not submitted written observations.

THE LAW

1. The Commission, having regard to the similarities of the

applications, finds it convenient to join them in accordance with

Rule 35 of its Rules of Procedure.

2. The applicants complain under Article 5 paras. 1 and 5

(Art. 5-1, 5-5) of the Convention that their detention was unlawful and

that they could not obtain compensation.

Article 5 (Art. 5) of the Convention, insofar as relevant,

provides as follows:

"1. 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:

...

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;

...

5. 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."

The parties have not submitted written observations on the

admissibility and merits of the cases.

Having examined the complaints under Article 5 (Art. 5) of the

Convention, the Commission finds that they cannot be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and that no other ground for declaring

them inadmissible has been established. The Commission considers that

the determination of these complaints should depend on an examination

of the merits.

3. The applicants complain under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention that legal aid was not provided

before the Magistrates' Court.

Article 6 paras. 1 and 3 (Art. 6-1, 6-3), insofar as relevant,

provide as follows:

"1. In the determination of his civil rights and obligations

... 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;

..."

The parties have not submitted written observations on the

admissibility and merits of the cases.

Having examined the complaints under Article 6 (Art. 6) of the

Convention, the Commission finds that they cannot be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and that no other ground for declaring

them inadmissible has been established. The Commission considers that

the determination of these complaints should depend on an examination

of the merits.

For these reasons, the Commission,

DECIDES TO JOIN APPLICATIONS NOS. 24842/94, 25276/94, 25278/94,

25282/94, 25284/94 & 26063/94;

unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the

merits of the cases.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

REDFERN, ASHLEY, GRATTON, HOGG, MEIKLEHAM AND GREEN v. THE UNITED KINGDOM

REDFERN, ASHLEY, GRATTON, HOGG, MEIKLEHAM AND GREEN v. THE UNITED KINGDOM

LEXI