Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28787/95

by Barry WOOLAGHAN

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 1 June 1995 by

Barry WOOLAGHAN against the United Kingdom and registered on

28 September 1995 under file No. 28787/95;

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 1969, resides in

Accrington. Before the Commission he is represented by Ms. Deborah

Still, a solicitor of Rochdale Law Centre, Rochdale, Lancashire.

A. Particular circumstances of the case

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

summarised as follows.

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

on 31 March 1990.

On 11 February 1992 the Hyndburn Magistrates' Court committed the

applicant to 40 days in prison, suspended on term of payment of £ 6 per

fortnight, for his failure to pay community charge.

The applicant failed to keep up with these payments and appeared

again before the Magistrates' Court on 18 April 1992. On that day the

committal order was again suspended, this time on condition that the

applicant pay £ 50 immediately and thereafter £ 10 per week.

The applicant fell behind with his payments. In August 1992 the

Hyndburn Borough Council, the local authority administering the

collection of the community charge, sent by ordinary post a letter to

the applicant informing him that a hearing was scheduled for 25 August

1992 when the question of issuing a warrant of committal to prison

against him would be considered. The letter was sent to the

applicant's last known address. However, it later transpired that he

had in fact left this address.

On that date the applicant did not appear before the Magistrates'

Court. The Magistrates issued a warrant of committal to prison for 29

days.

On 21 July 1993 the applicant attended the Hyndburn Borough

Council offices and was informed that there was a warrant for his

arrest. He consulted a solicitor and on 26 July 1993 he attended the

Hyndburn Magistrates' Court for a hearing concerning the payment of a

fine. There the applicant surrendered to the warrant for his arrest

in respect of the unpaid community charge. At this hearing the

applicant was not allowed to make any submissions as regards this

warrant and his solicitor did not represent him in this matter.

The applicant served 10 days in prison. On 6 August 1993 his

application for release on bail and for leave to apply for judicial

review before the High Court were granted.

On 2 December 1994 the High Court quashed the order of 25 August

1992 for the applicant's committal to prison. The Court noted that the

notice for the hearing in August 1992 had been sent to the applicant's

last known address by ordinary post, that the applicant had in fact

left this address, and that he stated that he had not received the

notice. The Court went on by saying: "

"Experience suggests that an excuse of that kind may be

more often false than true; but details in the applicant's

affidavit suggest that his assertion that he never saw the

letter is likely to be true. It is impossible to say that it

has been shown that the applicant knew of the hearing of

25 August 1992 ...

There being no sufficient proof of service, subject to [the

question of the applicant's alleged obligation to notify his

change of address under Regulation 3], the applicant is entitled

to succeed and the order of certiorari must go to quash the

committal warrant...

The approach of the Magistrates ... seems to have been that

the applicant had a duty to inform the Local Authority of his

change of address, and since he had failed in that respect it

was not open to him to complain ... that he had not been

served...

This is not a case for applying the presumption that every

man knows the law ... If it were possible to rely upon

Regulation 3, there would have, in my judgment, to be material

... that the [community] charge payer had known of that duty, so

that it might be then said that he could not complain of non-

service of the notice .... There is no evidence before me in

this case, despite the affidavit of Mr. Marsden, to lead me to

conclude that the applicant knew of his duty. Accordingly, the

basis upon which the Magistrates appear to have relied, before

proceeding in the matter, is unsound. That is enough to dispose

of this case...

Finally I make a comment about the practice of sending a

notice of a hearing by ordinary post. Post can go astray.

Perhaps in some areas of litigation it is more often said by

those who should have received post that they have not received

it, than, in truth, is the case... The difficulty for the

magistrates is, that ... they really have no way of telling

whether [the notice has been received]. It seems, therefore, to

follow that where there has been service by ordinary post,

careful consideration would have to be given to the particular

circumstances of the charge payer, before, if ever, concluding

that the notice must have come into his hands."

B. Relevant domestic law and practice

a) 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.

b) Regulation 3 para. 2 of the 1989 Regulations reads as follows:

"A person who is shown in a charging authority's register

as subject to a community charge of the authority and who has

reason to believe that the item concerned contains an error or

is not complete or up-to-date shall inform the appropriate

registration accordingly".

As regards the legal consequences when a debtor has not received

proper notice of a hearing before a Magistrates' Court, in R. v.

Northhampton Justices ex parte Newell (1992), Lord Justice Scott

stated:

"... it goes without saying that it would be essential in,

I would think, every case that the debtor be given proper notice

of the time and place of the proposed application. If that were

not done, the hearing would, I think, be fatally flawed. It is

to be expected that, if the debtor were not present, the

magistrates would not proceed with the hearing unless satisfied

that proper notice of it had been given to the debtor.

But if a debtor, having received proper notice, chooses not

to attend, that is his affair, and for the magistrates to

proceed in his absence cannot, in my opinion, possibly be

represented as being in breach of the requirements of fairness

or of natural justice".

c) 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 as the order of 25 August 1992 was made

by the Magistrates in excess of their jurisdiction, without proof that

the applicant had been informed of the date of the hearing. He also

complains under Article 5 para. 5 of the Convention of the lack of

compensation for the unlawful detention.

The applicant further submits that contrary to Article 6 of the

Convention legal aid was not available before the Magistrates' Court

when it issued the warrant for the applicant's committal to prison for

29 days.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 June 1995 and registered on

28 September 1995.

On 26 June 1996 the Commission decided to communicate the

application to the respondent Government.

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.

On 4 March 1997 the Commission granted legal aid to the

applicant.

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 resembles, in

some respects, the case of Benham v. the United Kingdom (Eur. Court HR,

judgment of 10 June 1996).

The Government state that under United Kingdom law the decision

to imprison the applicant was in fact taken on 11 February 1992, at a

hearing at which the applicant was present. On 25 August 1992, when

the applicant was not present, the Magistrates' Court merely decided

to execute the warrant of commitment to prison. Furthermore, it

follows from Section 11(3) of the Magistrates' Courts Act (1980), as

in force at the relevant time, and Section 150(1) of this Act that on

25 August 1992 the Magistrates' Court was free to proceed in the

applicant's absence when deciding to execute the commitment warrant.

In any event, the Government submit that the applicant should

have notified the local community charge authority of his change of

address as required by Regulation 3 of the 1989 Regulations. The

Government concede that not all persons liable to pay community charge

would have been aware of this provision. However, and despite what was

said in the High Court's judgment in the applicant's case, it is hard

to see, in the Government's submission, what is the purpose of having

such a statutory provision, unless it is intended that it should be

complied with. The applicant has not done so and cannot complain of

a situation resulting from his own failure to abide by the law.

Moreover, in his unopposed application for judicial review the

applicant had to satisfy the High Court that there was sufficient doubt

as to whether the Magistrates' Court had been satisfied that he had

received notice of the hearing of 25 August 1992, to warrant an order

of certiorari quashing his committal to prison. For purposes of the

application before the Commission, in the Government's submission, the

burden of proof is higher for the Commission to find that the United

Kingdom is in breach of a provision of the Convention. The applicant

has to show, in their view, that on the available evidence the

Magistrates' Court plainly could not have been satisfied that the

applicant had received a notice of the hearing.

The Government submit that this is not the case here. Thus, the

only evidence available is the affidavit of Mr. Marsden, a clerk at the

Magistrates' Court, who stated that the Court was satisfied that notice

had been given, "notice having been posted to the address at which [the

applicant] was registered as living by first class post." Also, the

High Court stated that the approach of the Magistrates' Court had been

only "unsound".

The Government state that in any event, based on paras. 46 and

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

loc. cit.), the applicant's detention was in conformity 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 in his case the Magistrates' Court

failed to inquire whether he had received the requisite notice of the

hearing of 25 August 1992. There was evidence that the Court was

satisfied that the notice had been posted. However, this was not the

issue which the Magistrates' Court was required to investigate. What

it had to investigate as a condition precedent to its jurisdiction to

imprison him, was whether the applicant had received notice of the

hearing. This requirement was clearly established in R. v.

Northhampton Justices ex parte Newell (1992) (see above Relevant

domestic law and practice).

As regards the allegation that the applicant cannot complain of

non-service of the notice as he did not inform the Local Authority of

his change of address, the applicant refers to the judgment of the High

Court in his case, where it was stated that this could be so only if

there had been evidence that he had known of his duty under

Regulation 3 to announce his change of address. No such evidence

exists and, indeed, there is no claim on the part of the Government

that it does.

The applicant answers the remaining arguments of the Government

by stating that Section 11(3) of the Magistrates' Court Act has no

relevance in the case, as illustrated by the relevant case-law.

Furthermore, it was incorrect to state that the decision to imprison

had been taken at the hearing in February 1992. The warrant for the

applicant's arrest was issued on 25 August 1992, when he was not

present. As regards the Government's submission of the necessary

standard of proof, the applicant submits that the only issue was

whether the Magistrates Court inquired into the receipt of the notice

of the hearing and that this was plainly not the case. As the judge

observed, the "sounder and surer practice" would be to use registered

mail.

Consequently the applicant alleges that on 25 August 1992 the

Magistrates' Court acted in excess of jurisdiction, 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.

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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WOOLAGHAN v. THE UNITED KINGDOM

WOOLAGHAN v. THE UNITED KINGDOM

LEXI