Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25277/94

by Kevin PERKS

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 April 1994 by

Kevin PERKS against the United Kingdom and registered on 23 September

1994 under file No. 25277/94;

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 is a United Kingdom citizen, born in 1953. Before

the Commission he is represented by Clyde, Chappell and Botham,

solicitors practising in Stoke-on-Trent.

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

follows.

A. Particular circumstances of the case

As a result of childhood meningitis, the applicant suffers from

a number physical and learning difficulties including severe

illiteracy. He requires continuous medication following the removal

of a tumour from his heel and experiences severe difficulty in walking.

At all relevant times he has lived on Invalidity Benefit.

On 5 June 1991, the Wolverhampton Magistrates' Court ordered the

issue of a liability order in respect of the applicant's unpaid

community charge (poll tax).

On 15 January 1993, in answer to a summons issued on the

application of Wolverhampton Metropolitan Borough Council, the

applicant appeared before a stipendiary magistrate 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) his income consisted of benefit of £56.70 per week;

(b) he lived with his elder sister, who was also in receipt of

benefit, and to whom he paid £15 per week plus contributions

toward fuel costs. He had no expenditure on loans or goods

ordered on credit;

(c) he had no personal savings;

(d) he had not paid his community charge because he had not

received an instalment book (he conceded that he had not in fact

requested one). He had not contacted the Council because he did

not have the money to make a telephone call. Enquiries had,

however, been made with a view to direct deductions from his

benefit towards payment of the arrears.

On the basis of this evidence, the magistrate concluded that the

applicant's failure to pay the community charge was due to his culpable

neglect. The applicant offered to pay £10 per week towards the arrears.

The magistrate fixed a term of imprisonment of 30 days but postponed

its operation against weekly payments of £10.

The applicant paid only two instalments and appeared before the

Wolverhampton magistrates on 12 May 1993 on the Council's further

application. He was again unrepresented. He informed the court that

he had been unwell and had spent at least one week in hospital during

February 1993. However, the magistrates concluded that the applicant's

circumstances had not changed materially since imposition of the

suspended term of imprisonment. They issued a warrant committing him

to prison for 28 days.

The applicant spent six days in custody before release on bail

pursuant to an order made on 18 May 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 26 October 1993.

Mr. Justice Harrison held that the mention made by the applicant

on 12 May 1993 of a spell in hospital should have prompted the

magistrates to make proper enquiries as to his state of health and its

effect on his ability to pay. The absence of inquiry meant that they

had failed to take into account a consideration relevant to the

exercise of their discretion; had they made adequate inquiry and

elicited the facts surrounding the nature of the applicant's illness

and disability, it was unlikely that they would have imposed a term of

imprisonment, immediate or suspended.

The judge quashed the magistrates' decision of 12 May 1993, but

considered that their conduct was not so outrageous 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.

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. 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 considers that the courts which imprisoned him did

not have power to commit him to prison, so that his detention was

unlawful. He considers it to have been in violation of Article 5

para. 1 of the Convention. He also considers 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.

The applicant also alleges a violation of Article 6 para. 1

and/or para. 3 (c) of the Convention on the ground that legal aid

should have provided for his representation before the magistrates.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 April 1994 and registered

on 23 September 1994.

On 30 November 1994 the Commission decided to communicate the

application to the respondent Government. On 28 February 1995 the

Commission decided to adjourn the examination of the application

pending the outcome 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,

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 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. 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 cases being

distinguishable.

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.

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.

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, Relevant domestic

law and practice). 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 did not

conduct a fresh inquiry into his personal and financial circumstances

although it had evidence that these circumstances had changed.

Therefore, in the applicant's view, 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.

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 grounds 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 provided

before the Magistrates' Court.

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 these complaints, 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, 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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PERKS v. THE UNITED KINGDOM

PERKS v. THE UNITED KINGDOM

LEXI