Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25283/94 Application No. 25690/94

by M. C. by John DEARY

against the United Kingdom against the United Kingdom

Application No. 28457/95

by Doreen CLARK

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

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 applications introduced on 12 July 1994,

26 October 1994 and 24 August 1995 by M. C., John DEARY and Doreen

CLARK against the United Kingdom and registered on 23 September 1994,

17 November 1994 and 6 September 1995 under files Nos. 25283/94,

25690/94 and 28457/95 respectively;

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 1994 and the observations in reply submitted by the

applicants on 10 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are United Kingdom citizens. Before the

Commission they are 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 cases

a. Application No. 25283/94

In October 1990 and August 1991, the Newcastle-under-Lyme

Magistrates' Court ordered the issue of a liability order in respect

of the applicant's unpaid community charge (poll tax).

On 8 September 1992, in answer to a summons issued on the

application of Newcastle 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. The applicant, who was not

represented, gave evidence that:

(a) he had been made redundant from his last employment in 1989;

(b) since then he had lived on Income Support of some £42 per

week;

(b) he paid his father £40 per week for board and lodging and the

balance of his income went to maintain a life insurance policy

which he had taken out while employed.

However, the magistrates considered that the applicant in fact

had disposable income and ought to have made an offer of payment. They

concluded that the applicant's failure to pay the community charge was

due to his wilful refusal and issued a warrant committing him to prison

for 30 days.

The applicant spent several hours in custody before release on

bail pursuant to an order made the same day 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 13 January 1994. The applicant was represented and had legal aid

for these proceedings. 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 not as a punishment.

He pointed out, however, that the High Court had in one cited case said

that the extraction of payment was not the sole purpose of

imprisonment. By failing to give adequate consideration to alternatives

to immediate imprisonment - in particular, the imposition of a

suspended term of imprisonment - the magistrates failed to have regard

to the purpose of the legislation. The decision to pass an immediate

custodial sentence of the first occasion was "plainly perverse and

wrong".

The judge quashed the magistrates' decision of 8 September 1992

and found the decision to commit unlawful. He remitted the matter to

the magistrates' court for reconsideration. 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.

b. Application No. 25690/94

At the relevant time the applicant was a hospital employee

earning £130 per week, on which he was supporting his family.

On 4 November 1993 the local Magistrates' Court committed the

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

His offer to clear his community charge arrears at the rate of £10 per

month was declined as it would have taken too long to discharge the

obligation. The applicant was not legally represented at the committal

proceedings.

The applicant served 5 days in prison. He applied for, and was

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

the High Court.

On 7 June 1994 the motion for judicial review was allowed and the

Magistrates' committal order quashed. The judgment stated, inter alia:

"When the justices considered the offer of £10 per month

they ought to have considered whether this was a reasonable

amount, bearing in mind the applicant's means, or whether in

their judgment he had means to pay more. Since the purpose of

their powers was to secure the payment of the debt, it was an

irrelevant consideration as to how long it would take to pay ...

[T]he approach of the justices was flawed as a matter of law and

certiorari should lie. ... [T]he purpose of the powers of the

court under Regulation 41 are not powers of punishment for past

misdeeds, but powers to ensure future payment of past

liabilities. Accordingly I have no hesitation in determining

that the justices' approach on this occasion was flawed."

c. Application No. 28457/95

At the relevant time the applicant was unemployed, had no income

and was dependent on her husband, who was in full time employment.

On 30 November 1994 the local Magistrates' Court committed the

applicant to 14 days in prison for failure to pay community charge.

At that time the applicant was ill. She informed the Court about this

by presenting a doctor's letter. The applicant was not legally

represented at the committal proceedings.

The applicant served 2 days in prison. She applied for, and was

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

the High Court.

In the judicial review proceedings all parties agreed to settle

the matter. On 16 March 1995 the High Court delivered a consent order

quashing the applicant's committal to prison. The grounds of the

consent order read, inter alia:

"The justices were unreasonable in that they failed to have

proper regard to the purpose of the imprisonment in such cases,

in that prison should be used as a means of coercing payment

rather than punishment, in particular having regard to the

inability of the applicant to discharge her debt."

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 ex parte Mould (1992), Kennedy LJ stated inter alia:

"The power to commit to prison which is to be found in

[Regulation] 41 is plainly intended to be used as a weapon to

extract payment rather than to punish... If a debtor currently

has no money and no real prospects of obtaining any, custody can

only punish and it will stand in the way of any subsequent

attempt to recover the sum which is owed."

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 applicants complain that their detention was contrary to

Article 5 para. 1 of the Convention and that, in breach of para. 5 of

this provision, they could not receive compensation.

Under Article 6 paras. 1 and 3(c) of the Convention the

applicants submit that legal aid was not available and they were not

legally represented before the Magistrates' Courts which committed them

to prison.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 25283/94 was introduced on 12 July 1994 and was

registered on 23 September 1994. Application No. 25690/94 was

introduced on 26 October 1994 and was registered on 17 November 1994.

Application No. 28457/95 was introduced on 24 August 1995 and was

registered on 6 September 1995.

On 30 November 1994 the Commission communicated to the respondent

Government Application No. 25283/94.

On 28 February 1995 the Commission decided to adjourn the

examination of this application pending the outcome of the case of

Benham v. the United Kingdom before the Court.

On 28 February 1996 and on 15 May 1996 the Commission decided to

communicate to the respondent Government Application No. 25690/94 and

Application No. 28457/95 respectively, without requesting written

observations, 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 Government's written observations were submitted on

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

extension of the time-limit.

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 that their detention was contrary to

Article 5 para. 1 (Art. 5-1) of the Convention and that, in breach of

para. 5 of this provision, they could not receive 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 applications bear 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.

As regards Application No. 28457/95 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 applicants'

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 applicants reply 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 applicants agree that the orders for their detention were

lawful under domestic law as the magistrates did not act in excess of

jurisdiction. The applicant in Application No. 28457/95 further agrees

with the Government that the use of the "consent order procedure" in

her case does not affect the issues before the Commission.

However, the applicants allege that there have been breaches of

Article 5 para. 1 (Art. 5-1) in that their detention did not fall

within any of the categories of permitted deprivation of liberty in

paras. 1(a) to 1(f) of this provision.

Their detention would have normally fallen under para. 1(b) of

Article 5 (Art. 5-1-b) of the Convention, as imprisonment for failure

to pay community charge is intended to secure the fulfilment of the

obligation to pay the charge. However, the High Court overturned the

imprisonment warrants in the applicants' cases precisely because, on

the facts, there was no prospect that immediate imprisonment would have

a coercive effect. Accordingly, the detention was purely punitive in

character and, therefore, could not have been imposed in order "to

secure the fulfilment of [an] obligation" within the meaning of Article

5 para. 1(b) (Art. 5-1-b) of the Convention.

Therefore, in the applicants' view there have been breaches 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 detention which was contrary to para.

1. Having examined the applicants' 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 have been established.

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.

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,

DECIDES TO JOIN APPLICATIONS Nos. 25283/94, 25690/94 & 28457/95;

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

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M.C., DEARY AND CLARK v. THE UNITED KINGDOM

M.C., DEARY AND CLARK v. THE UNITED KINGDOM

LEXI