Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25286/94

by S. D.

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 19 July 1994 by

S. D. against the United Kingdom and registered on 23 September 1994

under file No. 25286/94;

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 1966. 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 cases

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.

In 1991, the Wolverhampton Magistrates' Court ordered the issue

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

charge (poll tax).

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.

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.

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.

The application for judicial review was heard in the High Court

on 14 October 1993.

Mr Justice Schiemann held that the magistrates had failed to make

enquiries into the applicant's circumstances at the time of

accumulation of the arrears which had led to the liability order.

Also, he 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.

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."

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

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 19 July 1994 and was 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 entirely failed to inquire whether the

failure to pay was due to the applicant's wilful refusal or culpable

neglect.

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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S.D. v. THE UNITED KINGDOM

S.D. v. THE UNITED KINGDOM

LEXI