Information Note on the Court’s case-law 34

September 2001

Mort v. the United Kingdom (dec.) - 44564/98

Decision 6.9.2001 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Role played by Clerk to the Justices in proceedings leading to imprisonment for failure to pay fine: inadmissible

The applicant was convicted by a Magistrates’ Court for not having paid her te levision licence fee and a fine was imposed. As the applicant failed to pay the instalments of her fine, she was summoned to appear before the court again. An inquiry into her means was conducted on this occasion, most of the questions being put to her by the Clerk. The applicant described the manner in which the Clerk carried out his questioning as being clearly hostile. At the magistrates’ request, the Clerk conferred with them in the Retiring Room; he came back with them to the courtroom after the delibe rations. The magistrates made an order to commit the applicant to prison for 14 days, suspended on condition that she paid weekly instalments. She failed to do so and was accordingly committed to prison. Her application for judicial review was granted; her claim relied, inter alia , on the fact that the Clerk’s role in the proceedings gave rise to an appearance of a lack of independence and impartiality in the judicial process. The Divisional Court rejected her arguments and refused to see in her case a poin t of law of general public importance justifying an examination by the House of Lords.

Inadmissible under Article 6 § 1: (i) As regards the applicability of Article 6 to the proceedings, it had to be determined whether the applicant was charged with a crim inal offence within the meaning of Article 6. Firstly, as to the classification of the offence in domestic law, the domestic court had doubts as to whether the proceedings were criminal and did not decide the point. Secondly, as to the nature of the procee dings, which carries more weight, the applicant was dealt with under general laws applying to the community as a whole; the Magistrates’ Court could only exercise its power of committal to prison on a finding of culpable neglect, so that the proceedings ha d a punitive aspect. Finally, the applicant faced a maximum period of two weeks’ imprisonment, which had to be regarded in the circumstances as having a deterrent and punitive nature beyond consideration of debt enforcement. The proceedings therefore invol ve the determination of a criminal charge and Article 6 was applicable.

(ii) The justices’ clerk acts solely to assist the magistrates, who are lay judges. This may involve giving advice on law or procedure, taking notes of evidence and on occasion conduct ing examination of witnesses on the justices’ behalf. There is no question of the clerk enjoying any role in the proceedings independent of the justices, or in having any duty with regard to influencing a decision in any particular direction. Thus, assumin g the clerk fulfils the role provided by law, his or her presence during the deliberations of the justices must be regarded as part of the ordinary functioning of the court. In the instant case, the applicant complained that there was no prosecutor present and that the justices’ clerk took on that role in open court but the Court was not persuaded that the questioning of the applicant by the justices’ clerk overstepped what was permissible as a court officer acting on behalf of the justices. His task was to obtain the necessary information about the applicant’s means to enable the justices to determine whether she had been able to pay the fine when she failed to do so. The question which he put to the applicant may have not been favourable to her assertion b ut nonetheless gave her the opportunity to put forward relevant matters and could not be regarded per se as hostile or biased. Moreover, it was not apparent that the presence of a prosecutor to cross-examine her about her failure to pay her fines was neces sary to render the proceedings fair within the meaning of Article 6 § 1. The applicant for instance did not draw attention to any matter which she had intended to raise in her defence but was prevented to from doing because of the procedure adopted: manife stly ill-founded.

(iii) The applicant contended that the fine enforcement courts were not tribunals established by law within the meaning of Article 6. In imposing fines and holding means enquiries prior to imposing penalties for failure to pay fines the magistrates’ courts are acting under statutory authority and within their competence. In the applicant’s case, the magistrates’ court was not shown to have exceeded that competence or acted outside the legal framework governing the exercise of its functions. The applicant ar gued that no express power was conferred on justices’ clerks to carry out questioning in means inquiries in fine enforcement hearings. However, it could be regarded as part of the clerk’s duties to assist the magistrates. The fact that magistrates’ courts vary on the extent to which they delegate questioning to their clerks does not establish that the practice goes beyond the legitimate exercise of the magistrates’ discretion. Furthermore, the Divisional Court before which the applicant raised the point in judicial review proceedings had the power to quash decisions taken ultra vires but did not find established that the decision of the magistrates’ court was unlawful. There was no reason to call into question the Divisional Court’s findings: manifestly ill- founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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