Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28455/95

by Shaun JOHNSON

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 24 August 1995 by

Shaun JOHNSON against the United Kingdom and registered on 6 September

1995 under file No. 28455/95;

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 1967, resides in

Haywood, Stafford. Before the Commission he is represented by Mr. Nick

Ryles, a solicitor at Clyde, Chappell & Botham in 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.

At the relevant time the applicant was unemployed.

On 12 April 1994 the applicant appeared before the local

Magistrates' Court in respect of his arrears of community charge. He

offered to pay off these arrears at a rate of £ 3 per week. The Court

considered this inappropriate as it would take a long time for the debt

to be discharged. The Court committed the applicant to 90 days in

prison for failure to pay community charge. He was not legally

represented at the committal proceedings.

The applicant served 22 days in prison. He applied for, and was

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

the High Court.

On 16 March 1995 the High Court quashed the applicant's committal

to prison. The Court stated, inter alia:

"On [the] evidence it is, in my judgment, wholly plain that

there was no proper means inquiry... [T]he means inquiry

required by Regulation 41(2) is of great importance because

without it the Justices plainly cannot properly arrive at a

conclusion as to whether the failure to pay had been due to the

debtor's wilful refusal or culpable neglect. A means inquiry,

thus, is at the centre of the enforcement procedure which is

laid down by these Regulations. These Justices did not, in

truth, embark upon a proper means inquiry at all. It follows

that their order committing the applicant to prison is entirely

vitiated... I am afraid that the failure of the [Magistrates'

Court] was a flagrant one."

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 construction 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.

The applicant also submits that legal aid was not available, he

was not legally represented and was not offered legal representation

at the committal hearing. This was contrary to Article 6 of the

Convention which guarantees "a right to legal representation at any

hearing at which the liberty of the citizen is at stake".

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1995 and registered

on 6 September 1995.

On 15 May 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.

"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 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 submits that under Regulation 41(2) of the 1989

Regulations, an inquiry into the defendant's means 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

entirely failed to conduct the inquiry which the 1989 Regulations

prescribe and that that can be seen clearly from the finding of the

High Court. 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.

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 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 this complaint, 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

Menu

JOHNSON v. THE UNITED KINGDOM

JOHNSON v. THE UNITED KINGDOM

LEXI