JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND GREVE

We voted with the majority of our colleagues on all but two points: whether there had been a violation of Article 5 § 1 of the Convention as concerns Mr Perks, and whether the other applicants should receive compensation for moral damages for the breach of Article 6 §§ 1 and 3(c) of the Convention, which they had all suffered.

The issue to be determined is whether the detention of Mr Perks was in violation of Article 5 § 1 – the main purpose of the Article being to protect in casu Mr Perks from arbitrariness. In other words, the demands of Article 5 § 1 of the Convention may go beyond the possible requirements of domestic law (cf. § 62 above).

In the case of Mr Perks, the magistrates’ decision of 12 May 1993 to issue the warrant of commitment was later quashed by the High Court of Justice (cf. §§ 10-15 above). Justice Harrison in the High Court of Justice stated, inter alia , that,

“... [Mr Perks’] physical and mental disabilities which I accept, from the evidence I have, are very significant. I would think it very unlikely that, if the magistrates did know at the time what this court now knows, they would have issued a warrant of commitment whether suspended or otherwise.

[Mr Perks], I am told has already spent six days in prison. I have come to the conclusion that, in the circumstances, the appropriate thing for me to do is to take no further action apart from quashing the decision of May 1993. I therefore do not propose to remit the matter back to the magistrates. I would be surprised, in the circumstances, if the Local Authority, knowing now what they will know about [Mr Perks’] disabilities, would wish to issue a new warrant.”

The judicial review undertaken by the High Court of Justice was based on claims that both the decisions of 15 January and 12 May 1993 were “perverse” for a number of reasons. Only the decision of 12 May 1993 was quashed and no mention was made as to whether this was due to it being considered as “perverse”. Whereas the exact translation into Convention language of the word “perverse” may not be easy, it is understood that the term is strong and designates some inexplicable or arbitrary element. It does not, however, constitute a problem in the present case that the domestic language used is at a variation with that of the Convention, the test according to the Convention remains the same.

In some of the cases addressed by the Court in this judgement it is noted that domestic courts reached conclusions in terms such as the “unlawful” fetter of the magistrates’ discretion or “unlawful, [or] alternatively unreasonable”.

In the case of Mr Perks, we find that Article 5 § 1 of the Convention was violated whether or not the decisions of 15 January and 12 May 1993 were “lawful” according to national law, because his detention was arbitrary within the inherent meaning of this provision of the Convention.

We note that Mr Perks could only have been imprisoned if his failure to pay the community charges was due to “ wilful refusal or culpable neglect [emphasis added]”. The magistrates thus had to decide on subjective elements. The latter could not be done without the magistrates somehow having ascertained the mental faculties of Mr Perks. In these circumstances it would have been appropriate for the professional stipendiary magistrate, who took the decision of 15 January 1993, to make an inquiry which could have identified the mental abilities of Mr Perks. In contradistinction to the judgement of the High Court of Justice, we, in view of the issues to be decided by the magistrate, find it difficult to give decisive weight to the lack of written evidence concerning Mr Perks’ condition available to the court. An inquiry into the elements of “ wilful ” or “ culpable ” could have revealed Mr Perks’ mental difficulties to the magistrate. Here we take into consideration the explanations of Joan Perks, Mr Perks’ sister, Dr. Londhe and the community health consultant, Karen Lowe, describing Mr. Perks’ actual situation and appearance. It is appreciated that this information was not available to the magistrate at the relevant time.

Furthermore, we find that the decision of the magistrates of 12 May 1993 was arbitrary in Convention terms when the rather helpless information provided by Mr Perks himself concerning his health and recent hospitalisation was not followed up by the magistrates with a more thorough inquiry.

We do not consider it necessary to decide whether the magistrates who took the decision of 12 May 1993 were obliged to review the conclusion of “ wilful ” refusal or “ culpable ” neglect concerning Mr Perks’ behaviour. The latter was de facto not done.

Against this background we would hold that in relation to Article 5 § 1 of the Convention the detention of Mr Perks was arbitrary from the start, as the detention of a man in Mr Perks’ situation for six days for not having paid a tax of some GBP 150 is, in itself, notwithstanding technical arguments, a flagrant violation of the right to liberty of person protected by the Convention.

As regards the award of just satisfaction under Article 41 of the Convention, we note that each of these applicants was sent to prison for non-payment of the community charge, following proceedings which were in breach of Article 6 of the Convention. Deprivation of liberty was a particularly serious sanction. We are of the view that, taking account of the circumstances as a whole in the present case, the other seven applicants should have been awarded a sum of money as just satisfaction for the breach of Article 6.

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] . Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[3] Note by the Registry . Copies of the Commission’s reports are obtainable from the Registry.