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AS TO THE ADMISSIBILITY OF

Application No. 24586/94

by Shirley WILSON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 7 December 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 20 June 1994 by

Shirley WILSON against the United Kingdom and registered on 11 July

1994 under file No. 24856/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen, born in 1953. She is

represented by Mr. M. Phillips, solicitor, of Messrs. Tyndallwoods,

Birmingham. The facts of the case may be summarised as follows.

(a) The particular circumstances of the case

In September 1990 and October 1991, the Leicester Magistrates'

Court made liability orders in respect of the applicant's unpaid

community charge (poll tax).

On 30 November 1993, in answer to a summons issued on the

application of Newcastle Borough Council, the applicant appeared at

that court for an inquiry to be made into her means and the reasons for

her failure to pay the poll tax. The applicant, who was not

represented, gave evidence that:

(a) her husband was a self-employed painter and decorator but had

obtained little work during the past four years;

(b) her earnings from poorly paid part-time employment were

therefore effectively the sole source of the family's income;

(c) she had applied for State benefits, including a rebate

against her community charge liability, but had been refused.

(d) her outgoings at the time of the hearing included payments

of £80 per month towards a loan taken out to pay one year's

community charge liability (£535; the proceedings concerned

arrears for the two previous years totalling some £619).

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

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

neglect. They rejected as `derisory' an offer by the applicant's

husband to pay £10 per month towards the arrears and issued a warrant

committing the applicant to prison for 28 days.

The applicant spent two days in custody before release on bail

pursuant to an order made on 1 December 1993 by Mr. Justice Laws, 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

by Mr. Justice Laws on 16 December 1993. The applicant was represented

and had legal aid for these proceedings. The judge observed that the

purpose of the community charge legislation was to secure the

collection of the tax; the High Court had in similar cases emphasised

that imprisonment was to be used as means of extracting payment and not

as a punishment. By committing the applicant to prison and failing to

give adequate consideration to alternative methods of disposal - in

particular, the possibility of imposing a suspended term of

imprisonment or alternatively attachment of the applicant's

earnings - the magistrates were in effect punishing the applicant for

failure to pay. There had been no evidence before the magistrates

entitling them to conclude that measures short of imprisonment would

not be equally, or indeed more, effective in securing payment than the

immediate issue of a warrant of commitment.

The judge quashed the magistrates' decision and remitted the

matter to the magistrates' court for reconsideration. He declined to

award costs against the magistrates on the ground that their conduct

fell short of "misbehaviour". The judge did not address the claim for

damages. The applicant has not pursued her 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.

The order quashing the magistrates' decision of 30 November 1993

is date-stamped 22 December 1993.

(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 for proceedings for

commitment to prison for non-payment of the community charge. 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 court which imprisoned her did

not have power to commit her to prison, so that the detention was

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

para. 1 of the Convention. She also considers that, by virtue of

Section 108 of the Courts and Legal Services Act 1990, she 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 her representation before the magistrates.

THE LAW

The applicant complains that her wrongful commitment to prison

by the magistrates and the absence of an enforceable right to

compensation violate paragraphs 1 and 5 of Article 5 (Art. 5-1, 5-5)

of the Convention. She further complains that Article 6 para. 1 and/or

para. 3 (c) (Art. 6-1, 6-3-c) of the Convention required that legal aid

should have provided for her representation before the magistrates.

The Commission is not required to decide in this case whether or

not the facts alleged by the applicant disclose any appearance of a

violation of these provisions, since according to Article 26 (Art. 26)

of the Convention, "[t]he Commission may only deal with the matter

after all domestic remedies have been exhausted... and within a period

of six months from the date on which the final decision was taken".

The Commission recalls that the present application was

introduced on 20 June 1994.

The Commission notes that at the conclusion of the hearing on 16

December 1993, the judge delivered an ex tempore oral judgment, in the

presence of the applicant's counsel, in which he ordered the quashing

of the magistrates' decision and gave his reasons for so doing.

Although the formal order recording the judge's decision was not

stamped by the court office until 22 December 1993, that document

merely repeated the operative part of the judgment and contained no

further reasoning.

It was therefore on 16 December 1993 that the applicant or her

counsel became aware of the basis on which an application could be made

to the Commission in relation to the proceedings before the magistrates

(cf. No. 9299/81, P. v. Switzerland, Dec. 13.3.84, D.R. 36 p. 20, 22;

No. 10889/84, C. v. Italy, Dec. 11.5.88, D.R. 56 p. 40, 57).

Accordingly, the Commission considers that the date of the final

domestic decision in respect of the applicants' complaints was 16

December 1993. It follows that the application has been introduced out

of time. Furthermore, an examination of the case does not disclose any

special circumstances which might have interrupted the running of the

six months period.

It follows that the application must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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WILSON v. THE UNITED KINGDOM

WILSON v. THE UNITED KINGDOM

LEXI