Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19380/92

by Stephen Andrew BENHAM

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 January 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

E. KONSTANTINOV

Mr. H.C. KRÜGER, Secretary to the Commission

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 September 1991

by Stephen Andrew BENHAM against the United Kingdom and registered on

21 January 1992 under file No. 19380/92;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the Commission's decision of 12 October 1992 to communicate the

application;

- the observations submitted by the respondent Government on 17

February 1993 and the observations in reply submitted by the

applicant on 13 May 1993;

- the material submitted by the parties in preparation for the

hearing;

- the oral submissions of the parties at the hearing on

13 January 1994;

Having deliberated;

Decides as follows:

THE FACTS

The particular facts of the case

The applicant is a United Kingdom citizen, born in 1966. He is

represented by Mr. J. Wadham of Liberty (previously known as the

National Council for Civil Liberties), London.

On 21 August 1990 the Poole Magistrates' Court ordered the issue

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

charge (poll tax).

On 25 March 1991, in answer to a summons, the applicant appeared

at the Poole Magistrates' 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 left the Government Employment Training Scheme in

March 1990 and that he had not had gainful employment since then;

(b) he had applied for Income Support but had been refused;

(c) he had no personal assets or income.

On the basis of this evidence (which was accepted as true), the

Magistrates concluded that the applicant's failure to pay the community

charge was due to his culpable neglect "as he clearly had the potential

to earn money to discharge his obligation to pay". They issued a

warrant committing the applicant to prison for 30 days.

On 28 March 1991 a solicitor, who was informed about the facts,

appeared (without payment) before the same bench of the Magistrates'

Court and applied for bail on the applicant's behalf, but this was

refused. The solicitor also lodged an appeal by way of case stated and

an application for bail pending appeal. Moreover he applied for and

obtained an emergency legal aid certificate to pursue the appeal.

As the High Court is not seized of an appeal by way of case

stated until the Magistrates' Court has actually stated a case and it

has been lodged in the High Court, on 4 April 1991 the solicitor lodged

a further application in the High Court for judicial review of the

Magistrates' Court's decision, as this would allow for an immediate

bail application.

On 5 April 1991 the application for bail was heard before a High

Court judge and the applicant was granted bail, while on 16 April 1991

leave to apply for judicial review was also granted.

On 7 and 8 October 1991, the High Court heard the two

applications, that is, the appeal by way of case stated and the

application for judicial review. The applicant was represented and had

legal aid for the appeals.

On 8 October 1991 the High Court answered in the negative the

following three questions put by the Magistrates' Court:

"(1) Whether the following findings of fact can be

supported by the evidence before us, namely that the

appellant's failure to pay which led to the liability order

being made was due to his culpable neglect.

(2) Whether, before issuing the said warrant, we conducted

an adequate inquiry into the appellant's means.

(3) Whether we acted reasonably in exercising our

discretion to issue the said warrant".

In connection with these questions, the High Court found:

"In certain circumstances a failure on the part of the debtor to

work and put himself in funds to pay the Community Charge might

constitute culpable neglect. In my judgment however, before

such a finding could be sustained, at the very least there would

have to be clear evidence that gainful employment, for which he

was fit, was on offer to the debtor and that he had rejected or

refused that offer. There was no such evidence in this case.

In my judgment, the justices' findings of culpable neglect cannot

be sustained on the evidence adduced before them. ... In the

present case the justices found that the applicant had no income

and no assets at the time that he appeared before them, that

being the relevant time for them when considering whether they

should issue a warrant so as to commit the appellant to prison.

In my judgment it was incumbent upon them to consider the

alternatives to an immediate commitment to prison."

The appeal was allowed and the first instance order was set

aside.

Relevant domestic law and practice

Regulation 41 of the Community Charges (Administration and

Enforcement) Regulations 1989 provides as follows:

"41. (1) Where a charging authority had 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 the Appellate Committee of 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 ([1985] AC 528).

In a case concerning rates, the predecessor to the community

charge (R. v. Manchester City Magistrates Court, ex parte Davies [1989]

All ER 30), the Court of Appeal found that where Magistrates failed to

make proper inquiry as to whether failure to pay rates was due to

wilful refusal or culpable neglect, they had failed to observe a

statutory condition precedent and therefore acted outside or in excess

of their jurisdiction. The Magistrates were therefore 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 only lies against a Justice of the Peace (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 certain circumstances, to a appoint a solicitor who

happens to be within the court precincts for the purposes other than

the provision of ABWOR to represent a party who would not otherwise be

presented.

COMPLAINTS

The applicant alleges a violation of Article 5 para. 1 of the

Convention in that he was unlawfully detained by the Magistrates, who

acted beyond their jurisdiction (cf. R. v. Manchester City Magistrates

Court, ex parte Davies).

As a result of the amendment to the law brought about by Section

108 of the Courts and Legal Services Act 1990, no action lies against

Magistrates in respect of such unlawful detention. The applicant

alleges a violation of Article 5 para. 5 of the Convention in this

respect.

Under Article 6 of the Convention, the applicant considers that,

regardless of whether the proceedings are civil or criminal, he should

have been entitled to legal aid before the Magistrates.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1991 and

registered on 21 January 1992.

On 12 October 1992 the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 17 February 1993

and the applicant's observations in reply were submitted on

13 May 1993.

On 8 April 1993, the Commission decided to grant legal aid to the

applicant.

On 30 August 1993, the Commission decided to hold an oral

hearing.

At the oral hearing, which was held on 13 January 1994, the

parties were represented as follows:

For the Government:

Mrs. A.F. Glover Agent, Foreign and Commonwealth Office

Mr. D. Pannick, Q.C. Counsel

Ms. A. Jenkins Adviser, Lord Chancellor's Department

Ms. E. Hutchinson Adviser, Lord Chancellor's Department

For the applicant:

Mr. B. Emmerson Counsel

Mr. J. Wadham Legal director of Liberty

At the hearing, the Government withdrew an argument that the

applicant could have brought an action against the Governor of the

prison at which he was being held.

THE LAW

1. The applicant alleges a violation of Article 5 para. 1 (Art. 5-1)

of the Convention in that his detention was neither "in accordance with

a procedure prescribed by law", nor "lawful" in domestic law, within

the meaning of Article 5 para. 1 (a) or (b)(Art. 5-1-a, 5-1-b), and

that none of the other sub-paragraphs applies.

Article 5 para. 1 (Art. 5-1) of the Convention provides, so far

as relevant, 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:

(a) the lawful detention of a person convicted by a competent

court;

(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;..."

The applicant notes that in its judgment in the present case the

Divisional Court answered the Magistrates' questions, "Whether before

issuing the ... warrant, (they) conducted an adequate inquiry into the

appellant's means", and "Whether the following finding of fact can be

supported by the evidence before the Magistrates' Court, namely that

the applicant's failure to pay which led to the liability order being

made was due to his culpable neglect", in the negative. He submits that

the present case cannot be distinguished from the R. v. Manchester City

Magistrates' Court ex parte Davies case, and that the detention was

unlawful both in domestic and in Convention terms.

The Government submit that the Magistrates made an error of law

within their jurisdiction which has been corrected on appeal. They rely

on the absence of any suggestion in the High Court's judgment that the

applicant's detention was unlawful.

The Commission has taken cognizance of the parties' submissions.

After a preliminary examination of the complaints under Article 5 para.

1 (a) and (b) (Art. 5-1-a, 5-1-b) of the Convention, the Commission

finds that they raise complex issues of fact and law which must be

examined on the merits. This part of the application cannot therefore

be rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility have been established.

2. The applicant also complains under Article 5 para. 5 (Art. 5-5)

of the Convention that he had no right to compensation under domestic

law for his allegedly unlawful detention.

Article 5 para. 5 (Art. 5-5) provides as follows:

"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 applicant submits that the effect of Section 108 of the

Courts and Legal Services Act 1991 is to deprive him of the remedy to

which he had previously been entitled. The Government submit that the

question does not arise as there is no violation of any provision of

Article 5 (Art. 5) of the Convention.

The Commission recalls that under Article 5 para. 5 (Art. 5-5)

of the Convention the right to compensation is conditional on a breach

of one of the paragraphs of Article 5 (Art. 5). The Commission has

declared admissible the applicant's complaints under Article 5 para.

1 (Art. 5-1) of the Convention. It finds that the question whether the

applicant's right under Article 5 para. 5 (Art. 5-5) of the Convention

was violated also raises complex issues of fact and law, which require

further examination on the merits.

This part of the application can therefore also not be rejected

as being manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility have been established.

3. Finally, the applicant complains that legal aid was not available

to him in the Magistrates' Court. He alleges a violation of Article

6 (Art. 6) of the Convention.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law...

3. Everyone charged with a criminal offence has the following

minimum rights:

(c) to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require."

The applicant submits that, although domestic law categorises the

proceedings at issue in the present case as civil, both the nature of

the proceedings and the actual penalty imposed indicate that a criminal

charge was in fact determined. He considers that, whatever the nature

of the proceedings, they were so complex as to require proper legal

representation, especially regarding the alternatives to immediate

imprisonment. He submits that there was no adequate provision for

representation before the Magistrates.

The Government submit that the proceedings were not criminal.

They further consider that the committal proceedings themselves did not

determine the applicant's civil rights and obligations, but were merely

execution of the civil judgment brought about by the liability order

in the case. They submit that the combined effect of assistance under

the Green Form scheme and ABWOR complies with the requirements of

Article 6 (Art. 6) of the Convention, even if this Convention provision

applies to the proceedings.

The Commission finds that this complaint also raises complex

issues of fact and law which must be examined on the merits. This part

of the application cannot therefore be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention either. No other grounds for inadmissibility have been

established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BENHAM v. THE UNITED KINGDOM

BENHAM v. THE UNITED KINGDOM

LEXI