Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28190/95

by Ian POOLE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 application introduced on 26 July 1995 by

Ian POOLE against the United Kingdom and registered on 9 August 1995

under file No. 28190/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 November 1996 and the observations in reply submitted by the

applicant on 10 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a United Kingdom citizen born in 1965, resides in

Bristol. Before the Commission he is represented by Clyde, Chappell

and Botham, solicitors of Stoke-On-Trent.

The facts of the case as submitted by the parties may be

summarised as follows.

A. Particular circumstances of the case

The applicant became liable to pay community charge (poll tax)

on 1 April 1990. On an unspecified date he became liable to pay also

another type of tax, the non-domestic rates.

Between 1986 and 1993 the applicant was a self-employed mechanic.

At an unspecified time in 1993 his business failed, his house was

repossessed and he incurred debts of some £ 20,000. Since then he

lives on income support.

On 15 November 1993 the North Avon Magistrates' Court committed

the applicant to three months in prison for failure to pay both

community charge and non-domestic rates. The applicant was not legally

represented at the committal proceedings.

The applicant served 10 days in prison. He applied for, and was

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

the High Court.

The application for judicial review was not opposed by the local

community charge authority and the Magistrates' Court agreed to sign

a consent order. On 14 March 1995 the High Court quashed the

applicant's committal to prison. The grounds therefor, as agreed upon

between the applicant and the North Avon Magistrates' Court, were that:

1) the Justices acted unlawfully in committing the applicant to prison

in respect of his non-domestic rates as "there had been no attempt to

levy distress, such distress being a condition precedent to

imprisonment"; 2) the imprisonment order had been delivered without

proper regard to the fact that the applicant had significant debts and;

3) it had been unreasonable for the Justices to commit the applicant

to the maximum period of imprisonment in the light of the subsequent

case-law.

The parties agreed that no order for costs should be made. The

High Court accordingly 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

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.

In R. v. Highbury Corner Magistrates Court ex parte Watkins

(1992) Henry J. said:

"Before the court gets to the stage of inquiring into the

debtor's means, the court must first be satisfied as to their

jurisdiction under Regulation 41 and as to the precise amount

still outstanding. Under Regulation 41 they must be satisfied,

first, that the charging authority has sought to levy an amount

by distress and that it appears to the authority that

insufficient goods of the debtor can be found on which levy the

amount, and they must also be satisfied as to the amount

outstanding i.e. whether anything and if so how much has been

paid since the liability order was made. Both of these things

require to be proved."

In R. v. Bradford Justices ex parte Delaney (1994) Mann LJ said:

"No evidence was given [in the magistrates court] that the

charging authority had sought to levy an amount by distress, and

that it appeared to them that no goods of the debtor could be

found, or that insufficient goods could be found. As it seems

to me, upon a contruction of the Regulation, the demonstration

of those matters is a condition precedent to the justices

proceeding with their means inquiry. The condition precedent

was not satisfied, and thus what followed was ineffective."

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.

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 applicant complains under Article 5 para. 1 of the Convention

that his detention was unlawful. He also complains under Article 5

para. 5 of the Convention of the lack of compensation for the unlawful

detention.

Under Article 6 of the Convention the applicant submits that

legal aid was not available, he was not legally represented and was not

offered legal representation at the committal hearing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 July 1995 and registered on

9 August 1995.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government without asking for written

observations pending the outcome of the case of Benham v. the United

Kingdom 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.

The Government's written observations were submitted on

8 November 1996. The applicant replied on 10 March 1997, after an

extension of the time-limit.

THE LAW

1. The applicant complains under Article 5 paras. 1 and 5

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

that he could not obtain compensation.

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

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 Government submit that the present application bears a close

resemblance of Benham v. the United Kingdom (Eur. Court HR, judgment

of 10 June 1996), the existing factual differences being immaterial as

regards the legal outcome. 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.

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 (Art. 5-1) of the

Convention. As a result Article 5 para. 5 (Art. 5-5) of the Convention

was not applicable.

The applicant replies that the facts in the case of Benham v. the

United Kingdom were not sufficiently clear to give rise to a finding

of a violation of Article 5 para. 1 (Art. 5-1), the present case being

distinguishable.

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.

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 court's

ruling as one element, as the Court did in Benham in paras. 44 - 46 of

that judgment.

The applicant further submits that under the Community Charge

(Administration and Enforcement) Regulations 1989, commitment to prison

cannot lawfully be ordered unless the local community charge authority

have, inter alia, sought without success to "levy distress" by seizing

the debtor's property. Moreover, there is clear authority in United

Kingdom law that the Magistrates' Court is under a duty to inquire

whether a prior attempt has been made by the local community charge

authority to "levy distress". Such an inquiry is a condition precedent

to its jurisdiction to commit to prison. The applicant relies on the

cases of R. v. Highbury Corner Magistrates Court ex parte Watkins

(1992) and R. v. Bradford Justices ex parte Delaney (1994) (see above,

Relevant domestic law and practice).

The applicant alleges that this condition precedent was not

fulfilled in his case, and that therefore there has been a breach of

Article 5 para. 1 (Art. 5-1) of the Convention. Paragraph 5 of this

provision, consequently, was also violated, there being no possibility

to obtain compensation for the unlawful detention.

The applicant finally agrees with the Government that the use of

the "consent order procedure" in his case does not affect the issues

before the Commission.

Having examined the applicant's complaints under Article 5

paras. 1 and 5 (Art. 5-1, 5-5) of the Convention, the Commission finds

that they raise serious questions of fact and law which are of such

complexity that their determination should depend on an examination of

the merits. This part of the application cannot, therefore, be

regarded as manifestly ill-founded within the meaning of Article 27

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

declaring it inadmissible has been established.

2. The applicant complains under Article 6 paras. 1 and 3

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

was not legally represented and was not offered legal representation

at the committal hearing.

The parties agree that the present case is similar in this

respect to the case of Benham v. the United Kingdom and agree that

there has been a breach of Article 6 paras. 1 and 3 (Art. 6-1+6-3)

taken together.

Having examined the applicant's complaint under Article 6 paras.

1 and 3(c) (Art. 6-1, 6-3-c) of the Convention, the Commission finds

that it 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 it inadmissible has been established.

The Commission considers that the determination of this complaint

should depend on an examination of the merits.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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POOLE v. THE UNITED KINGDOM

POOLE v. THE UNITED KINGDOM

LEXI