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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BENHAM v. THE UNITED KINGDOM - 19380/92 [1996] ECHR 22 (10 June 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/22.html
Cite as: 22 EHRR 293, (1996) 22 EHRR 293, [1996] ECHR 22
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In the case of Benham v. United Kingdom (1),
The European Court of Human Rights, sitting, in pursuance of
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr B. Walsh,
Mr R. Macdonald,
Mr J. De Meyer,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr B. Repik,
Mr P. Jambrek,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 26 January 1996 and 24 May 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 7/1995/513/597. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court on 23 January 1995 by the
European Commission of Human Rights ("the Commission") and on
26 January 1995 by the Government of the United Kingdom of Great
Britain and Northern Ireland ("the Government"), within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an application
(no. 19380/92) against the United Kingdom lodged with the Commission
under Article 25 (art. 25) on 20 September 1991 by a British national,
Mr Stephen Andrew Benham.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Article 48 (art. 48). The object
of the request and of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 5 and 6 (art. 5, art. 6) of the
Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of
the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot
the names of the other seven members, namely Mr Thór Vilhjálmsson,
Mr B. Walsh, Mr R. Macdonald, Mr I. Foighel, Mr L. Wildhaber,
Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).
4. The President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
through the Registrar, consulted the Agent of the Government, the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 27 July 1995 and the applicant's memorial on
7 August 1995.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 November 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Eaton, Deputy Legal Adviser,
Foreign and Commonwealth Office, Agent,
Mr D. Pannick QC,
Mr P. Duffy, Counsel,
Mr M. Collon, Lord Chancellor's Department, Adviser;
(b) for the Commission
Mrs J. Liddy, Delegate;
(c) for the applicant
Mr B. Emmerson,
Professor A. Bradley, Counsel,
Mr J. Wadham Adviser.
The Court heard addresses by Mrs Liddy, Mr Emmerson and
Mr Pannick.
6. Following deliberations on 23 November 1995 the Chamber decided
to relinquish jurisdiction forthwith in favour of a Grand Chamber
(Rule 51 para. 1).
7. The Grand Chamber to be constituted included ex officio
Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the
Court, and the other members and substitute judges (namely,
Mr B. Repik, Mr F. Gölcüklü, Mr R. Pekkanen and Mr K. Jungwiert) of the
Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and
(b)). On 5 December 1995, in the presence of the Registrar, the
President drew by lot the names of the seven additional judges called
on to complete the Grand Chamber, namely Mr F. Matscher,
Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr A.B. Baka,
Mr M.A. Lopes Rocha and Mr P. Jambrek (Rule 51 para. 2 (c)).
8. Having taken note of the opinions of the Agent of the Government,
the Delegate of the Commission and the applicant, the Grand Chamber
decided on 26 January 1996 that it was not necessary to hold a further
hearing following the relinquishment of jurisdiction by the Chamber
(Rule 38, taken together with Rule 51 para. 6).
AS TO THE FACTS
I. Circumstances of the case
9. On 1 April 1990 Mr Benham became liable to pay a community charge
of £325. Since he did not pay it, on 21 August 1990 the Poole
Magistrates' Court ordered the issue of a liability order, entitling
Poole Borough Council ("the charging authority") to commence
enforcement proceedings against him (see paragraph 19 below,
Regulations 29 and 39 (1)).
10. Mr Benham did not pay the amount owed, and bailiffs visited his
parents' house (where he was living), but were told that he had no
goods of any value there or elsewhere which could be seized by them and
sold in order to pay the debt.
11. Under Regulation 41 of the Community Charge (Administration and
Enforcement) Regulations 1989 ("the Regulations": see paragraph 19
below), if a person is found to have insufficient goods on which to
levy outstanding community charge the charging authority may apply to
a magistrates' court for an order committing him to prison. On such
an application being made, the court must inquire in the presence of
the debtor as to his present means and also whether his failure to pay
which led to the liability order being made was due to wilful refusal
or culpable neglect.
The charging authority applied for such an order, and on
25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for
the inquiry required by the Regulations.
He was not assisted or represented by a lawyer, although he was
eligible for "Green Form" legal advice and assistance before the
hearing (see paragraph 29 below), and the magistrates could have made
an order for Assistance by Way of Representation ("ABWOR") if they had
thought it necessary (see paragraph 30 below).
12. The magistrates found that Mr Benham, who had 9 "O" level General
Certificates of Secondary Education, had started a Government
Employment Training Scheme in September 1989, but had left it
in March 1990 and had not worked since. He had applied for income
support, but had been turned down because it is not payable to those
who are voluntarily unemployed, and he had no personal assets or
income.
On the basis of this evidence, the magistrates concluded that his
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". Accordingly, they decided that he ought to be sent
to prison for thirty days unless he paid what was owing.
Mr Benham was taken to Dorchester prison on the same day.
13. On 27 March 1991 a solicitor went on the record as representing
Mr Benham and lodged a notice of appeal by way of case stated (see
paragraph 21 below) and an application for bail pending appeal (see
paragraph 22 below). Legal aid was obtained for the appeal, but not
for the bail application, because it is not available for such
proceedings. In the event, the solicitor appeared without payment
before the magistrates on 28 March 1991 to apply for bail, but he was
unsuccessful.
14. On 4 April 1991 Mr Benham's solicitor lodged an application for
leave to apply for judicial review and for bail in the High Court. He
was obliged to ask for judicial review, despite the fact that he had
already lodged an appeal by way of case stated, because otherwise he
could not have applied for bail in the High Court until the magistrates
had stated a case (see paragraph 22 below). Bail was granted on
5 April 1991 and Mr Benham was thus released from prison, having served
eleven days.
15. The Divisional Court heard the appeal by way of case stated and
the application for judicial review together on 7 and 8 October 1991
(Regina v. Poole Magistrates, ex parte Benham, 8 October 1991,
unreported). Mr Benham was represented and legally aided. The court
noted that it had been necessary to apply for judicial review in order
to get bail, but that the case stated procedure was more appropriate.
Accordingly no order was made on the judicial review application.
16. Mr Justice Potts in the Divisional Court held that the
magistrates had been mistaken in concluding that Mr Benham's failure
to pay the community charge had been due to culpable neglect:
"In my view this finding was wrong on the evidence available to
the justices. 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' finding of
culpable neglect cannot be sustained on the evidence adduced
before them."
17. In addition, he found that the decision to commit Mr Benham to
prison would have been wrong even if there had been evidence of
culpable neglect, because he did not have any means with which to pay
the debt at the time of the hearing before the magistrates, and because
"[s]uch an order is only to be made if payment can be made and there
is no other way of inducing the [debtor] to do so". In the
circumstances it was incumbent upon them to consider the alternatives
to immediate detention provided for by the Regulations: they could have
suspended the term of imprisonment subject to such conditions as they
thought fit, or refused to issue a warrant, since the local authority
could have renewed their application at a later date if Mr Benham's
circumstances had changed (see paragraph 19 below).
18. Mr Benham was not able to apply for compensation in respect of
the time he spent in prison, because he was unable to show bad faith
on the part of the magistrates, as was required by section 108 of the
Courts and Legal Services Act 1990 (see paragraph 28 below).
II. Relevant domestic law and practice
A. Provisions concerning enforcement of payment of the
community charge
19. The relevant subordinate legislation is the Community Charge
(Administration and Enforcement) Regulations 1989 (Statutory
Instrument 1989/438) ("the Regulations").
The relevant provisions of Regulation 29 ("application for a
liability order") are as follows:
"(1) If an amount which has fallen due ... is wholly or partly
unpaid ... the charging authority may ... apply to a magistrates'
court for an order against the person by whom it is payable.
...
(5) The court shall make the order if it is satisfied that the
sum has become payable by the defendant and has not been paid."
Regulation 39 (1) provides for the seizure and sale of a debtor's
property ("levying of distress"):
"Where a liability order has been made the authority which
applied for the order may levy the appropriate amount by distress
and sale of goods of the debtor against whom the order was made."
Regulation 41 is concerned with the committal to prison of a
debtor, and provides, so far as is relevant:
"(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.
(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.
(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 the
warrant until such time and on such conditions (if any) as
the court thinks just.
...
(7) The order in the warrant shall be that the debtor be
imprisoned for a time specified in the warrant which shall not
exceed three months, unless the amount stated in the warrant is
sooner paid ..."
The relevant part of Regulation 42 provides:
(3) Where an application under regulation 41 has been made but
no warrant is issued or term of imprisonment fixed, the
application may be renewed ... on the ground that the
circumstances of the debtor have changed."
20. In Regina v. Highbury Corner Magistrates, ex parte Watkins
(9 October 1992, unreported) Mr Justice Henry said in the High Court
that "The proceedings under Regulation 41 are plainly legal proceedings
other than criminal proceedings. They are proceedings for the recovery
of an unpaid tax." However, in Regina v. Hebburn Justices, ex parte
Martin (31 July 1995, unreported), Mr Justice Sedley in the High Court
held that although the initial obligation to pay community charge was
a civil one, magistrates "who have reached the point of committal are
entertaining a criminal process".
B. Appeal from a decision of a magistrates' court by way of
case stated
21. By virtue of section 111 of the Magistrates' Court Act 1980 a
party to proceedings before a magistrates' court may "question the
proceeding on the ground that it is wrong in law or is in excess of
jurisdiction by applying to the justices composing the court to state
a case for the opinion of the High Court on the question of law or
jurisdiction involved ...". This is known as the "case stated"
procedure.
22. Under section 113 of the 1980 Act, magistrates may grant bail to
a party who applies to them to state a case; but if they refuse to do
so, in cases categorised as "civil" under the domestic law, the High
Court has no jurisdiction to grant bail until it is seized of some
substantive proceedings to which the grant of bail can be ancillary.
23. Acts performed pursuant to an order made by a magistrates' court
which is subsequently set aside by a superior court are not themselves
inherently unlawful. It is at the discretion of the higher court
whether these collateral acts are also invalid: Regina v. Deputy
Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58,
124D-G (per Lord Justice Taylor in the Court of Appeal); London and
Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 Weekly Law
Reports 182, 189C-190C (per Lord Hailsham, Lord Chancellor, in the
House of Lords); Regina v. Panel on Take-overs and Mergers, ex parte
Datafin PLC [1987] Queen's Bench 815, 840A-C (per Sir John Donaldson,
Master of the Rolls).
C. The distinction between an act of a magistrates' court
which is merely wrong in law and one which is so wrong as
to be in excess of jurisdiction
24. In English law, orders of a magistrates' court which are in
excess of jurisdiction are void from the outset, whereas orders made
within jurisdiction remain valid until set aside by a superior court.
It is only in respect of the former type of error that a court can
be held civilly liable in damages (under section 108 of the Courts and
Legal Services Act 1990, which replaced section 45 of the Justices of
the Peace Act 1979 - see paragraphs 27-28 below).
25. The appropriate test for whether an order of a magistrates' court
is void for lack of jurisdiction is that set out by the House of Lords
in McC. v. Mullan [1985] Appeal Cases 528. In that case magistrates
had made an order sending a 14-year-old boy to a training school after
a hearing at which he was not legally represented, had not applied for
legal aid and had not been informed of his right so to do. The order
was quashed on judicial review on the ground that, by virtue of
Article 15 (1) of the Treatment of Offenders (Northern Ireland)
Order 1976, magistrates were not permitted to pass a custodial sentence
for the first time on a juvenile who was not legally represented,
unless he had applied for legal aid and been refused on grounds of
means or had been informed of his right to apply for it but had refused
or neglected to do so.
The boy then applied for damages for false imprisonment against
the magistrates. Since the case was decided prior to the enactment of
the Courts and Legal Services Act 1990 and at a time when it was the
law that magistrates were liable in damages for false imprisonment if
they acted in excess of jurisdiction (see paragraph 26 below), the
House of Lords was required to decide the jurisdictional question.
In its judgment, a magistrates' court acted in excess of
jurisdiction in three circumstances only: (1) if it acted without
having jurisdiction over the cause, (2) if it exercised its powers in
a procedural manner that involved a gross and obvious irregularity, or
(3) if it made an order that had no proper foundation in law because
of a failure to observe a statutory condition precedent. The instant
case fell within the third limb of the rule: the magistrates were
liable in damages because they had not observed the requirements of
Article 15 (1) of the 1976 Order.
During the course of his judgment speech, Lord Bridge commented
(at page 546 E-F), on the jurisdiction of magistrates in conducting a
criminal trial:
"... once justices have duly entered upon a summary trial of a
matter within their jurisdiction, only something quite
exceptional occurring in the course of their proceeding to a
determination can oust their jurisdiction ... [A]n error
(whether of fact or law) in deciding a collateral issue on which
jurisdiction depends will not do so. Nor will the absence of any
evidence to support a conviction ..."
26. The final limb of the rule formulated by the House of Lords in
McC. v. Mullan (that is, that magistrates exceed their jurisdiction
when they make an order which has no foundation in law because of a
failure to observe a statutory condition precedent) was applied by the
Court of Appeal in R. v. Manchester City Magistrates' Court, ex
parte Davies [1989] 1 All England Reports 30, a case concerning rates
(the predecessor to the community charge). Again, the issue was
whether magistrates had acted in excess of jurisdiction and were
therefore liable in damages for false imprisonment.
The plaintiff had been unable to pay all of the rates for which
he became liable in December 1984, and in January 1986 he failed to
follow his accountant's advice to close his business and to go
bankrupt. Applying legislation similar to Regulation 41 of the
Community Charge Regulations, the magistrates found that his failure
to follow the accountant's advice constituted culpable neglect and they
committed him to prison. The Court of Appeal held that no causal
connection had been established between the failure to follow advice
in 1986 and the failure to pay the rates in 1984, and that the
magistrates had not properly entered into the inquiry (as to whether
the failure to pay was due to culpable neglect) required by the
legislation as a condition precedent of the warrant of commitment.
They were therefore acting in excess of jurisdiction and were liable
in damages.
The three Appeal Court judges expressed their findings in
slightly different terms. Lord Justice O'Connor observed that "they
never carried out the inquiry required [by the law]";
Lord Justice Neill found that "some inquiry about the applicant's
finances was made", but that "a clear and crucial distinction can be
drawn between the inquiry required by the statute and the inquiry which
was in fact carried out. The justices never examined the question
whether the failure to pay was due to culpable neglect"; and
Sir Roger Ormrod (who dissented from the majority decision) said: "...
it is quite clear that the justices carried out an inquiry into means
carefully and in detail ... It is equally plain that they misdirected
themselves completely ... They ... failed to realise that the question
they had to decide was whether the applicant's failure to pay his rates
was `due either to his wilful refusal or to his culpable neglect'" (see
pp. 637 B, 642 H-643 G and 647 E).
D. The immunity of magistrates from civil proceedings
27. Magistrates enjoy a statutory immunity from civil liability in
certain circumstances. Before the coming into force of section 108 of
the Courts and Legal Services Act 1990 on 1 January 1991, this immunity
was provided for by sections 44 and 45 of the Justices of the
Peace Act 1979. In brief, a magistrate was liable in damages for acts
done by him in his official capacity if it could be proved either (1)
that the act was done maliciously and without reasonable and probable
cause or (2) that it was performed outside or in excess of jurisdiction
(see paragraph 25 above for the meaning of the latter expression).
28. The position under section 108 of the Courts and Legal
Services Act 1990 is now that an action lies against a magistrate only
if it can be proved that he acted both in bad faith and in excess of
jurisdiction:
"An action shall lie against any justice of the peace ... in
respect of any act or omission of his -
(a) in the purported execution of his duty -
(i) as such a justice; ...
(b) with respect to any matter which is not within his
jurisdiction,
if, but only if, it is proved that he acted in bad faith."
E. Legal aid
29. The legal-aid scheme does not provide for full representation
before magistrates for proceedings for committal to prison for
non-payment of the community charge. The "Green Form" scheme provides
at least two hours' worth of advice and assistance from a solicitor
(the time limit can be extended), including preparation for a court
case, but it does not provide for representation.
30. Assistance by Way of Representation ("ABWOR") enables a
magistrates' court, in certain circumstances, to appoint a solicitor
who happens to be within the court precincts to represent a party who
would not otherwise be represented. Regulation 7 (1) (b) of the Legal
Advice and Assistance (Scope) Regulations 1989 provides that ABWOR may
be given:
"at a hearing in any proceedings in a magistrates' court to a
party who is not receiving and has not been refused
representation in connection with those proceedings, where the
court -
(i) is satisfied that the hearing should proceed on the same
day;
(ii) is satisfied that that party would not otherwise be
represented; and
(iii) requests a solicitor who is within the precincts of
the court for purposes other than the provision of
ABWOR in accordance with this sub-paragraph, or
approves a proposal from such a solicitor, that he
provide that party with ABWOR ..."
PROCEEDINGS BEFORE THE COMMISSION
31. In his application (no. 19380/92) of 20 September 1991 to the
Commission, the applicant complained that his detention between
25 March 1991 and 5 April 1991 was unlawful, in violation of Article 5
para. 1 of the Convention (art. 5-1); that section 108 of the Courts
and Legal Services Act 1989 deprived him of an enforceable right to
compensation in respect of it, contrary to Article 5 para. 5
(art. 5-5); and that the fact that full legal aid was not available to
him for the committal hearing before the magistrates constituted a
violation of Article 6 (art. 6).
32. The Commission declared the application admissible on
13 January 1994. In its report of 29 November 1994 (Article 31)
(art. 31), it concluded, by twelve votes to six, that there had been
a violation of Article 5 para. 1 of the Convention (art. 5-1); by
seventeen votes to one that there had been a violation of Article 5
para. 5 (art. 5-5); and by fifteen votes to three that there had been
a violation of Article 6 para. 3 (c) (art. 6-3-c).
The full text of the Commission's opinion and of the five
separate opinions contained in the report is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
33. At the hearing on 22 November 1995 the Government, as they had
done in their memorial, invited the Court to hold that there had been
no violations of Articles 5 and 6 of the Convention (art. 5, art. 6).
34. On the same occasion the applicant reiterated his request to the
Court, stated in his memorial, to find that there had been breaches of
Articles 5 and 6 (art. 5, art. 6) and to award him just satisfaction
under Article 50 of the Convention (art. 50).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE
CONVENTION
35. The applicant submitted that his detention between 25 March 1991
and 5 April 1991 constituted a violation of Article 5 para. 1
(art. 5-1) of the Convention, which reads 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 after conviction 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;
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose
of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition."
The Commission agreed with the applicant, whereas the Government
contested his allegations.
36. The applicant argued that the decision of the Divisional Court
(see paragraphs 16-17 above) was not distinguishable from that of the
Court of Appeal in Manchester City Magistrates' Court, ex parte Davies
(see paragraph 26 above) and amounted in substance to a ruling that his
detention had been ordered by the magistrates in excess of their
jurisdiction and was thus unlawful under English law. If this was so,
it was in violation of Article 5 para. 1 (art. 5-1), which refers back
to the position under national law.
Furthermore, his imprisonment was not covered by any of the
sub-paragraphs of Article 5 para. 1 (art. 5-1). It did not result from
a criminal conviction as required by Article 5 para. 1 (a)
(art. 5-1-a), and, since he did not have any way of paying the debt,
it could not have been intended to secure the fulfilment of an
obligation prescribed by law within the terms of Article 5 para. 1 (b)
(art. 5-1-b).
In addition, he argued that his detention was manifestly
arbitrary. The Divisional Court found that there was no evidence of
culpable neglect and that the magistrates' decision to imprison him was
unreasonable in the sense of being irrational or perverse. The
magistrates, therefore, acted beyond their powers in imprisoning him,
and the imposition of a penalty which is beyond the authorisation of
the law is necessarily an arbitrary one.
Finally, he contended that, since he was denied legal
representation in violation of Article 6 of the Convention (art. 6),
the detention was for that reason unlawful.
37. For the Commission, the weight of argument tended to the view
that, in domestic law, the applicant's detention was not "lawful" as
required by Article 5 para. 1 (art. 5-1).
38. The Government submitted that Mr Benham's detention was "lawful"
and "in accordance with a procedure prescribed by law" for the purposes
of Article 5 para. 1 (art. 5-1). The Community Charge Regulations (see
paragraph 19 above) conferred on the magistrates' court the power to
send him to prison if they were of the opinion that his failure to pay
was due to culpable neglect. Unlike the magistrates in Manchester City
Magistrates' Court, ex parte Davies (see paragraph 26 above), the
magistrates in the instant case did carry out the inquiry required by
law as to whether Mr Benham's failure to pay resulted from culpable
neglect. They made errors of fact and law in answering that question,
but the Divisional Court did not find that these errors were such as
to deprive them of jurisdiction.
39. The Court first observes that this case falls to be examined
under sub-paragraph (b) of Article 5 para. 1 (art. 5-1-b), since the
purpose of the detention was to secure the fulfilment of Mr Benham's
obligation to pay the community charge owed by him.
40. The main issue to be determined in the present case is whether
the disputed detention was "lawful", including whether it complied with
"a procedure prescribed by law". The Convention here essentially
refers back to national law and states the obligation to conform to the
substantive and procedural rules thereof, but it requires in addition
that any deprivation of liberty should be consistent with the purpose
of Article 5 (art. 5), namely to protect individuals from arbitrariness
(see the Quinn v. France judgment of 22 March 1995, Series A no. 311,
p. 18, para. 47).
41. It is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law. However, since under
Article 5 para. 1 (art. 5-1) failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see the Bouamar v. Belgium judgment of 29 February 1988,
Series A no. 129, p. 21, para. 49).
42. A period of detention will in principle be lawful if it is
carried out pursuant to a court order. A subsequent finding that the
court erred under domestic law in making the order will not necessarily
retrospectively affect the validity of the intervening period of
detention. For this reason, the Strasbourg organs have consistently
refused to uphold applications from persons convicted of criminal
offences who complain that their convictions or sentences were found
by the appellate courts to have been based on errors of fact or law
(see the Bozano v. France judgment of 18 December 1986, Series A
no. 111, p. 23, para. 55, and the report of the Commission of
9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions
and Reports 13, pp. 60-61).
43. It was agreed by those appearing before the Court that the
principles of English law which should be taken into account in this
case distinguished between acts of a magistrates' court which were
within its jurisdiction and those which were in excess of jurisdiction.
The former were valid and effective unless or until they were
overturned by a superior court, whereas the latter were null and void
from the outset (see paragraph 24 above).
It was further submitted that the appropriate test under English
law for deciding whether or not magistrates acted within their
jurisdiction was that laid down by the House of Lords in McC. v. Mullan
(see paragraph 25 above). The third limb of that test was relevant to
the instant case, namely that magistrates exceeded their jurisdiction
when they made an order which had no foundation in law because of a
failure to observe a statutory condition precedent.
This limb was applied by the Court of Appeal in Manchester City
Magistrates' Court, ex parte Davies (see paragraph 26 above). In that
case the appeal court found that magistrates had acted in excess of
jurisdiction when they committed a man to prison for non-payment of
rates without having carried out the inquiry required by law as to
whether his failure to pay was due to culpable neglect.
44. In each of the two cases referred to above it was necessary for
the courts to decide the jurisdictional issue, because at the relevant
time damages could be awarded against magistrates who acted in excess
of jurisdiction. However, section 108 of the Courts and Legal
Services Act 1990 has since changed the law to provide that there is
no right to damages unless magistrates acted in bad faith (see
paragraph 28 above). For this reason, when the Divisional Court
reviewed the magistrates' order for Mr Benham's detention, there was
no reason under English law for it to decide whether or not the order
had been made in excess of jurisdiction.
Mr Justice Potts in the Divisional Court found that the
magistrates had carried out some inquiry as to whether Mr Benham's
failure to pay the community charge was due to his culpable neglect.
However, he concluded that their finding of culpable neglect could not
be sustained on the evidence available to them (see paragraph 16
above).
45. In the view of the Court, there are undoubtedly similarities
between this decision and that of the Court of Appeal in Manchester
City Magistrates' Court, ex parte Davies, but there are also notable
differences. In the latter case, the Court of Appeal held that the
magistrates had failed altogether to carry out the inquiry required by
law as to whether the debtor's failure to pay was the result of
culpable neglect (see paragraph 26 above). In the instant case,
however, the Divisional Court found that the magistrates had addressed
themselves to this question, although their finding of culpable neglect
could not be sustained on the available evidence.
46. Against the above background, it cannot be said with any degree
of certainty that the judgment of the Divisional Court was to the
effect that the magistrates acted in excess of jurisdiction within the
meaning of English law. It follows that the Court does not find it
established that the order for detention was invalid, and thus that the
detention which resulted from it was unlawful under national law (see
the above-mentioned Bouamar judgment p. 21, para. 49). The mere fact
that the order was set aside on appeal did not in itself affect the
lawfulness of the detention (see paragraph 42 above).
47. Nor does the Court find that the detention was arbitrary. It has
not been suggested that the magistrates who ordered Mr Benham's
detention acted in bad faith, nor that they neglected to attempt to
apply the relevant legislation correctly (see the above-mentioned
Bozano judgment, pp. 25-26, para. 59). It considers the question of
the lack of legal aid to be less relevant to the present head of
complaint than to that under Article 6 (art. 6) (see paragraph 64
below).
Accordingly, the Court finds no violation of Article 5 para. 1
of the Convention (art. 5-1).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE
CONVENTION
48. The applicant, with whom the Commission agreed, argued that since
he was detained in violation of Article 5 para. 1 (art. 5-1), he was
entitled to compensation from public funds in accordance with Article 5
para. 5 of the Convention (art. 5-5), which reads as follows:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article (art. 5) shall
have an enforceable right to compensation."
49. The Government submitted that Article 5 para. 5 (art. 5-5) did
not apply because the applicant's detention was not in contravention
of Article 5 para. 1 (art. 5-1).
50. The Court observes that Article 5 para. 5 (art. 5-5) guarantees
an enforceable right to compensation only to those who have been the
victims of arrest or detention in contravention of the provisions of
Article 5 (art. 5) (see the Wassink v. the Netherlands judgment of
27 September 1990, Series A no. 185-A, p. 14, para. 38). In view of
its finding that there was no violation of Article 5 para. 1 (art. 5-1)
in this case, it concludes that Article 5 para. 5 (art. 5-5) is not
applicable.
III. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
A. Article 6 para. 1 (art. 6-1) taken alone
51. The applicant contended that the fact that he had no automatic
right to legal representation at the hearing before the magistrates
meant that he was denied access to a fair hearing for the purposes of
Article 6 para. 1 (art. 6-1), which provides, so far as is relevant:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
... hearing ... by [a] ... tribunal ..."
52. Since the guarantees in paragraph 3 of Article 6 (art. 6-3) are
specific aspects of the right to a fair trial in criminal proceedings
guaranteed by paragraph 1 of the same Article (art. 6-1), the Court
considers it appropriate to examine this complaint from the perspective
of paragraphs 3 (c) and 1 taken together (art. 6-1+6-3-c) (see, for
example, the Granger v. the United Kingdom judgment of 28 March 1990,
Series A no. 174, p. 17, para. 43).
B. Article 6 para. 3 (c) taken together with Article 6 para. 1
(art. 6-1+6-3-c)
53. The applicant further complained that his lack of legal
representation during the proceedings before the magistrates
constituted a violation of Article 6 para. 3 (c) (art. 6-3-c) of the
Convention, which provides as follows:
"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;"
1. Applicability
54. The applicant, with whom the Commission agreed, argued that the
proceedings before the magistrates involved the determination of a
criminal charge for the purposes of Article 6 para. 3 (c) (art. 6-3-c).
He referred to the facts that what was in issue was not a dispute
between individuals but rather liability to pay a tax to a public
authority, and that the proceedings had many "criminal" features, such
as the safeguards available to defendants aged under 21, the severity
of the applicable penalty and the requirement of a finding of
culpability before a term of imprisonment could be imposed.
Furthermore, it was by no means clear that the proceedings were
classified as civil rather than criminal under the domestic law.
55. The Government argued that Article 6 para. 3 (c) (art. 6-3-c) did
not apply because the proceedings before the magistrates were civil
rather than criminal in nature, as was borne out by the weight of the
English case-law. The purpose of the detention was to coerce the
applicant into paying the tax owed, rather than to punish him for not
having paid it.
56. The case-law of the Court establishes that there are three
criteria to be taken into account when deciding whether a person was
"charged with a criminal offence" for the purposes of Article 6
(art. 6). These are the classification of the proceedings under
national law, the nature of the proceedings and the nature and degree
of severity of the penalty (see the Ravnsborg v. Sweden judgment of
23 March 1994, Series A no. 283-B).
As to the first of these criteria, the Court agrees with the
Government that the weight of the domestic authority indicates that,
under English law, the proceedings in question are regarded as civil
rather than criminal in nature. However, this factor is of relative
weight and serves only as a starting-point (see the Weber
v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 17,
para. 31).
The second criterion, the nature of the proceedings, carries more
weight. In this connection, the Court notes that the law concerning
liability to pay the community charge and the procedure upon
non-payment was of general application to all citizens, and that the
proceedings in question were brought by a public authority under
statutory powers of enforcement. In addition, the proceedings had some
punitive elements. For example, the magistrates could only exercise
their power of committal to prison on a finding of wilful refusal to
pay or of culpable neglect.
Finally, it is to be recalled that the applicant faced a
relatively severe maximum penalty of three months' imprisonment, and
was in fact ordered to be detained for thirty days (see the Bendenoun
v. France judgment of 24 February 1994, Series A no. 284, p. 20,
para. 47).
Having regard to these factors, the Court concludes that
Mr Benham was "charged with a criminal offence" for the purposes of
Article 6 paras. 1 and 3 (art. 6-1, art. 6-3). Accordingly, these two
paragraphs of Article 6 (art. 6-1, art. 6-3) are applicable.
2. Compliance
57. The applicant submitted that the interests of justice required
that he ought to have been represented before the magistrates. He
referred to the facts that lay magistrates have no legal training and
in this case were required to interpret quite complex regulations. If
he had been legally represented the magistrates might have been brought
to appreciate the error that they were about to make. He asserted,
further, that the Green Form and ABWOR schemes which were available to
him (see paragraphs 29 and 30 above) were wholly inadequate.
58. The Government contended that the legal-aid provision available
to Mr Benham was adequate, and that the United Kingdom acted within its
margin of appreciation in deciding that public funds should be directed
elsewhere.
59. For the Commission, where immediate deprivation of liberty was
at stake the interests of justice in principle called for legal
representation.
60. It was not disputed that Mr Benham lacked sufficient means to pay
for legal assistance himself. The only issue before the Court is,
therefore, whether the interests of justice required that Mr Benham be
provided with free legal representation at the hearing before the
magistrates. In answering this question, regard must be had to the
severity of the penalty at stake and the complexity of the case (see
the Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205,
pp. 17-18, paras. 32-38).
61. The Court agrees with the Commission that where deprivation of
liberty is at stake, the interests of justice in principle call for
legal representation (see the above-mentioned Quaranta judgment p. 17,
para. 33). In this case, Mr Benham faced a maximum term of three
months' imprisonment.
62. Furthermore, the law which the magistrates had to apply was not
straightforward. The test for culpable negligence in particular was
difficult to understand and to operate, as was evidenced by the fact
that, in the judgment of the Divisional Court, the magistrates' finding
could not be sustained on the evidence before them.
63. The Court has regard to the fact that there were two types of
legal-aid provision available to Mr Benham. Under the Green Form
scheme he was entitled to up to two hours' advice and assistance from
a solicitor prior to the hearing, but the scheme did not cover legal
representation in court (see paragraph 29 above). Under the ABWOR
scheme, the magistrates could at their discretion have appointed a
solicitor to represent him, if one had happened to be in court (see
paragraph 30 above). However, Mr Benham was not entitled as of right
to be represented.
64. In view of the severity of the penalty risked by Mr Benham and
the complexity of the applicable law, the Court considers that the
interests of justice demanded that, in order to receive a fair hearing,
Mr Benham ought to have benefited from free legal representation during
the proceedings before the magistrates.
In conclusion, there has been a violation of Article 6 paras. 1
and 3 (c) of the Convention taken together (art. 6-1+6-3-c).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
65. The applicant sought just satisfaction under Article 50 (art. 50)
of the Convention, which reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Non-pecuniary damage
66. Mr Benham claimed compensation for non-pecuniary damage in
respect of the violation of Article 6 (art. 6).
67. The Government pointed out that Mr Benham was legally represented
from 28 March 1991 onwards, when an unsuccessful bail application was
made on his behalf, and that any time spent in prison after that date
could not be attributed to his lack of representation at the hearing.
68. The Court considers, particularly in view of the impossibility
of speculating as to whether the magistrates would have made the order
for Mr Benham's detention had he been represented at the hearing before
them, that the finding of a violation is sufficient satisfaction.
B. Legal fees and expenses
69. The applicant further sought reimbursement of costs and expenses
totalling £26,523.80.
70. The Government objected that the amounts claimed by the applicant
were excessive. They submitted that, if the Court were to find for the
applicant on all counts, a figure of £23,293.94 should be substituted
for that sought.
However, in the event that the Court found violations in respect
of certain claims only, the costs and expenses allowed should be
reduced proportionately.
71. In view of the fact that the Court finds a violation in respect
of one of the applicant's complaints only, it considers that £10,000
(VAT included) is an appropriate amount for the respondent Government
to pay towards the applicant's legal costs and expenses, less the
25,510 French francs already paid in legal aid by the Council of
Europe.
C. Default interest
72. According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date
of adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT
1. Holds by seventeen votes to four that there has been no violation
of Article 5 para. 1 of the Convention (art. 5-1);
2. Holds by seventeen votes to four that Article 5 para. 5 of the
Convention (art. 5-5) is not applicable;
3. Holds unanimously that there has been a violation of Article 6
paras. 1 and 3 (c) of the Convention taken together
(art. 6-1+6-3-c);
4. Holds by nineteen votes to two that the finding of a violation
constitutes adequate satisfaction for the non-pecuniary damage
suffered by the applicant;
5. Holds unanimously
(a) that the respondent State is to pay the applicant, within
three months, in respect of costs and expenses, £10,000 (ten
thousand pounds sterling) less 25,510 (twenty-five thousand, five
hundred and ten) French francs to be converted into pounds
sterling at the rate applicable on the date of delivery of the
present judgment;
(b) that simple interest at an annual rate of 8% shall be payable
from the expiry of the above-mentioned three months until
settlement;
6. Dismisses, unanimously, the remainder of the claim for just
satisfaction in respect of costs and expenses.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 10 June 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly
dissenting opinions of Mr Bernhardt, Mr Thór Vilhjálmsson, Mr De Meyer
and Mr Foighel are annexed to this judgment.
Initialled: R.R.
Initialled: H.P.
PARTLY DISSENTING OPINION OF JUDGE BERNHARDT
In my view there is a violation of Article 5 para. 1 (art. 5-1)
(and consequently also of Article 5 para. 5 (art. 5-5)) of the
Convention in the present case.
I leave aside my doubts whether a prison sentence is in the
circumstances of the case proportionate to the failure of Mr Benham to
pay a community charge. Detention may in such a case be appropriate
if there exists a chance that the detainee can and will pay the charge
under such pressure. But if it is undisputed that the detained person
has no means to pay the charge, a prison sentence is in my view hardly
compatible with the proper role of criminal sanctions in present-day
societies. But this is not the final reason of my dissent.
I understand Article 5 para. 1 of the Convention (art. 5-1) in
the sense that the words "lawful detention" refer to the conformity of
the decision ordering the detention with national law, in so far as the
material and procedural conditions contained in national law must be
satisfied. In the present case, it is clear from the decision of the
Divisional Court that under English law the magistrates should not have
sent Mr Benham to prison.
The present decision of the Court goes further and understands
the reference to national law in the sense that a detention which has
been ordered in violation of national law remains nevertheless lawful
if under national law the deciding judge or magistrate acted inside his
jurisdiction, if he did not act in bad faith, and if the order was not
void ab initio. This understanding of Article 5 (art. 5) has
far-reaching consequences. Even if the conditions provided for by
national law are not satisfied, the detention remains nevertheless
"lawful" if the national law distinguishes (which is often not the
case) between decisions which are void ab initio and other decisions.
Such a distinction - which leads often, including in the present case,
to extremely unclear results - neglects the situation and the interests
of the detained person. Decisive are the degree of the violation of
the national law, the corresponding error of the judge concerned and
the difference between void and "voidable" decisions. In my view,
Article 5 (art. 5) refers to national law only in so far as the
original detention order must be compatible with that law.
I do not think that the comparison drawn in paragraph 42 of the
judgment with convictions which are subsequently quashed by a higher
court is convincing. The present case concerns exclusively the
question whether the detention was "lawful" at the time when the
detention order was made.
PARTLY DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
To my regret, I have not found it possible to follow the majority
of the Court on the question whether there was a violation of Article 5
para. 1 of the Convention (art. 5-1).
The Commission came to the conclusion that "the weight of the
argument before it tends to be of the view that, in domestic law, the
applicant's detention was not lawful" (Commission's report,
paragraph 48).
The Court, on the other hand, did "not find it established that
the order for detention was invalid, and thus that the detention which
resulted from it was unlawful under national law ...".
The arguments for and against these different conclusions are
complicated and I am left in some uncertainty as to how to assess them.
This uncertainty reveals that the national law is far from clear,
yet what is in issue is an important question concerning personal
liberty.
As stated by the Court in the Bozano judgment, "Lawfulness, in
any event, also implies absence of any arbitrariness ..." (Series A
no. 111, p. 25, para. 59).
As in that judgment, the particular circumstances of the case are
relevant. Mr Benham was ordered to be detained for thirty days, and
actually served eleven days, for failure to pay a community charge, in
all £355, costs included. He had no personal assets or income, but the
English magistrates found that he clearly had the potential to earn
money to discharge his obligation to pay.
In my opinion, the warrant issued by the magistrates was very
severe in the circumstances.
For these reasons, I am of the opinion that Article 5 para. 1
(art. 5-1) was violated.
Consequently, I find Article 5 para. 5 (art. 5-5) to be
applicable. There was therefore, obviously, also a violation of that
provision (art. 5-5).
PARTLY DISSENTING OPINION OF JUDGE DE MEYER
I have no doubt that the purpose of the legal provision under
which the applicant was deprived of his liberty was to "secure the
fulfilment of" an "obligation prescribed by law".
However, since he had failed to fulfil the obligation concerned
and since that failure was found by the magistrates' court to be due
to his culpable neglect, the detention as such was, in my view, a
punishment "after conviction by a competent court" (1). It was indeed
a sanction imposed on him on account of conduct considered
reprehensible (2). That also suffices for me to conclude that he was
entitled to enjoy the rights recognised in Article 6 of the Convention
(art. 6) (3).
_______________
1. See Mr Justice Sedley's opinion referred to in paragraph 20 of the
present judgment and our Court's own conclusion in paragraph 56.
2. See my opinion in Putz v. Austria, 22 February 1996, at
paragraph 6.
3. Once again the Court applies, in paragraph 56 of the present
judgment, the three Engel criteria. As I have already tried to explain
in my opinion in Putz, at paragraphs 2-6, these criteria are not very
useful. It would be better to forget them altogether.
_______________
As far as Article 5 (art. 5) is concerned, I agree with
Mr Foighel for the reasons set forth in his dissenting opinion (4),
that the applicant's detention was not lawful.
_______________
4. See below.
_______________
As to Article 6 (art. 6), it is enough for me to see that he was
not assisted by counsel before the magistrates' court and that it has
not been shown either that he had willingly and knowingly waived such
assistance or that the interests of justice did not require it in the
instance concerned (5).
_______________
5. See my concurring opinion in Boner v. the United Kingdom,
28 October 1994, Series A no. 300-B, p. 78.
_______________
Finally, I feel that the Court should have granted some financial
compensation to the applicant.
PARTLY DISSENTING OPINION OF JUDGE FOIGHEL
It has been constantly held by this Court that the right to
liberty and security of person in Article 5 (art. 5) is one of the
fundamental rights in the Convention.
The Court's starting-point should therefore be that any
exceptions to this rule are to be interpreted narrowly.
The exception relevant to this case is Article 5 para. 1 (b)
(art. 5-1-b), which permits
"(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;"
It is obvious that the Convention here essentially refers back
to national law and lays an obligation on the national authority to
comply with the substantive and procedural rules of that law, but it
requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5 (art. 5), namely to protect
individuals from arbitrariness.
The duty of interpreting and applying domestic law falls, in the
first place, to the national authorities, notably the courts.
If, however, the national law is obscure or uncertain, or if
different interpretations of it are equally possible, it is incumbent
on this Court - for the purpose of interpreting and implementing the
Convention - to choose the interpretation of the national law which
most closely corresponds with the purpose of Article 5 (art. 5), namely
to protect individuals from arbitrariness.
In this case the Divisional Court found at the hearing
in October 1991 that the magistrates' decision to commit Mr Benham to
prison had been unlawful. The Divisional Court was, however, silent
as to whether Mr Benham's detention was unlawful from the start or
whether it was unlawful only subsequent to the Divisional Court's
decision. Further, it appeared from the addresses to the Court that
- according to some interpretations of the English case-law - both
interpretations were possible.
Against this background I would hold that in relation to
Article 5 para. 1 (art. 5-1) the detention of Mr Benham was unlawful
from the start, as the detention of a young man for thirty days for not
having paid a tax of £325 is in itself, notwithstanding technical
arguments, a flagrant violation of the liberty of person protected by
the Convention.
Consequently, I find Mr Benham entitled to compensation for
non-pecuniary damage in accordance with Article 50 (art. 50).