CASE OF PERKS AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95)
12 October 1999
In the case of Perks and Others v. the United Kingdom,
The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11, and the relevant provisions of the Rules of Court2, as a Chamber composed of the following judges:
Mr J.-P. COSTA, President,
Mr P. KūRIS,
Mrs F. TULKENS,
Mr K. JUNGWIERT,
Mrs H. GREVE,
Mr K. TRAJA, Judges,
Sir Rupert JACKSON, ad hoc Judge,
and also of Mrs S. DOLLE, Registrar,
Having deliberated in private on 29 June 1999 and on 21 September 1999,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case was referred to the Court, as established under former Article 19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the United Kingdom Government (“the Government”) on 20 November 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in applications nos. 25277/94, 25279/94, 25280/94, 25281/94, 25285/94, 28048/95, 28192/95 and 28456/95 against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by eight United Kingdom citizens, Mr Kevin Perks, Mrs Andrea Rowe (Kennedy), Mr Gordon Mudryj, Mr Robert Massey, Mr Alan Beattie, Mr Leveson Knight, Mr Arthur Tilley and Mr John Crane.
The object of the Government’s application to the Court was to obtain a decision as to what, if any, amounts in just satisfaction under Article 41 of the Convention should be paid by the Government to the applicants in respect of the alleged violation of Article 6 §§ 1 and 3(c), which the Government did not contest.
2. All applicants, acting through their representatives, HMB law solicitors practising in Stoke-on-Trent, and Mrs Deborah Still, a solicitor at the Rochdale Law Centre, designated Mr Ben Emmerson, a barrister practising in London, as the lawyer who would represent them (Rule 36 of the Rules of Court).
Having originally been designated before the Commission by the initials G.M., R.M., and L.K., these three applicants subsequently agreed to the disclosure of their names: Mr Gordon Mudryj, Mr Robert Massey and Mr Leveson Knight,
3. On 14 January 1999 the Panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol no. 11 of the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the applications would be examined by one of the Sections. They were, thereupon, assigned to the Third Section (Rule 52 § 1).
On 24 February 1999 Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who was ex officio member of the Chamber constituted to examine the applications (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), withdrew from sitting in the Chamber, having taken part in the Commission’s examination of the case (Rule 28). The Government accordingly appointed Sir Rupert Jackson to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
Mr J.-P. Costa, Vice-President of the Section, took over the presidency of the Chamber in the examination of the applications (Rule 12) and determined the composition of the Chamber (Rule 52 § 2 and Rule 12).
In addition to the President of the Chamber, its other members thus were Mr P. Küris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr K. Traja and Sir Rupert Jackson, ad hoc judge.
4. In accordance with Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues in the applications. The Registrar received the applicants’ memorial on 25 May 1999 and the Government’s memorial on 31 May 1999. On 29 June 1999 the Court decided to join all eight applications (Rule 43 § 1).
5. In accordance with the decision of the President, a hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 1999.
There appeared before the Court:
(a) for the Government
Mr M. EATON, Foreign and Commonwealth Office, Agent,
Mr N. LAVENDER, Counsel,
Mr M. COLLON, Lord Chancellor’s Departement, Adviser;
(b) for the applicants
Mr B. EMMERSON, Barrister, Counsel,
Mr I. WISE, Solicitor,
Mrs D. STILL, Solicitor,
Mr R. WISE Solicitor, Advisers.
The Court heard addresses by Mr Emmerson and Mr Lavender, and also their replies to a question put by one of its members.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. Each applicant failed to pay sums due in respect of a community charge (poll tax). At the time, the applicants were dependent on State benefits or living on a low income. In separate proceedings in magistrates’ courts it was established that the non-payment was due to the debtor’s wilful refusal or culpable neglect. Each of the applicants was thereupon committed to a term of imprisonment and detained. Legal aid was not available and the applicants were not legally represented before the magistrates’ courts. The applicants were released on bail after applying for judicial review before the High Court. Following judicial review proceedings, each applicant obtained an order quashing the magistrates’ imprisonment order in his or her case.
A. The case of Mr Perks
7. As a result of childhood meningitis, the applicant suffers from a number of physical and learning difficulties, including severe illiteracy. He requires continuous medication following the removal of a tumour from his heel and experiences severe difficulty in walking. At all relevant times he has lived on Invalidity Benefit.
On 5 June 1991, the Wolverhampton Magistrates’ Court ordered the issue of a liability order in respect of the applicant’s unpaid community charge.
8. On 15 January 1993, in answer to a summons issued on the application of Wolverhampton Metropolitan Borough Council (“the charging authority”), the applicant appeared before Mr Gillespie, a stipendiary magistrate (a professional magistrate appointed to sit in a magistrates’ court and exercise its jurisdiction in place of two or more lay justices) for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The applicant, who was not represented, gave evidence that:
(a) his income consisted of benefit of 56.70 pounds sterling (GBP) per week;
(b) he lived with his elder sister, who was also in receipt of benefit, and to whom he paid GBP 15 per week, plus contributions toward fuel costs. He had no expenditure on loans or goods ordered on credit;
(c) he had no personal savings;
(d) he had not paid his community charge because he had not received an instalment book (he conceded that he had not in fact requested one). He had not contacted the Council because he did not have the money to make a telephone call.
At the hearing the applicant offered to pay GBP 10 per week towards the arrears.
On the basis of this evidence, the magistrate found that the applicant had made no attempt whatsoever to discharge his financial obligations in respect of the community charge, that he had taken no steps to obtain an instalment book and that his excuse that he did not have sufficient money to enable him to telephone the charging authority was without merit or credibility. The magistrate concluded that the applicant’s failure to pay the community charge was due to his culpable neglect. He fixed a term of imprisonment of 30 days but postponed its operation against weekly payments of GBP 10.
9. The applicant paid only two instalments and appeared before the Wolverhampton justices on 12 May 1993 on the Council’s further application. He was again not legally represented. He informed the court that he had been unwell and had spent at least one week in hospital during February 1993. However, the magistrates concluded that the applicant’s circumstances had not changed materially since the imposition of the suspended term of imprisonment. They issued a warrant committing him to prison for 28 days.
The applicant spent six days in custody before release on bail pursuant to an order made on 18 May 1993 by a High Court judge, who also granted leave to move for judicial review.
10. The application for judicial review was heard in the High Court on 26 October 1993. Counsel for the applicant submitted evidence in support of their claim that the applicant was mentally and physically handicapped. The applicant’s sister, Ms J. Perks, with whom the applicant had been living for about seven years, stated in an affidavit that the applicant’s only writing ability was to write his name, that his reading ability was very limited and that he had a very poor memory. Ms Perks further stated that she did not know how her brother had managed to get to the Magistrates’ Court on 15 January 1993 and again on 12 May 1993 and that she was surprised to learn that he had made two payments in the latter part of January 1993, as she would have thought that the applicant would have certainly forgotten about the judicial order after about a fortnight. Ms Perks submitted that she was astonished and dismayed that such a mentally handicapped person could be imprisoned without anyone being told what had happened to him. She further stated:
“I believe that anyone who has had contact with [the applicant] would quickly realise that he is severely mentally handicapped… There is no way that [he] has deliberately avoided paying his community charge, as I have explained, he is simply unable to understand.”
In a report of October 1993 a Dr Londhe, who had examined the applicant, stated inter alia that it was immediately apparent that he had a poor memory and that he was vague on detail. It was also immediately apparent that he had difficulty in walking and engaging in higher level communication. Counsel for the applicant also submitted a report by Ms K. Lowe, a community health consultant, which bore out many of the points made out in Ms Perk’s affidavit and Dr Londhe’s report.
11. Affidavits were submitted also by Mr Gillespie, the stipendiary magistrate, and Mr Jewkes, who was one of the two justices who had ordered the applicant’s imprisonment on 12 May 1993.
Mr Gillespie was unable to remember whether the applicant appeared to have any physical difficulties. His notes from the hearing on 15 January 1993 did not disclose any information suggesting that the applicant had any difficulty answering questions. To the contrary, according to Mr Gillespie the applicant was able to give a full account of himself and his financial circumstances (see paragraph 8 above). It appeared to the magistrate that the applicant had no difficulty expressing himself. Mr Gillespie further stated in his affidavit:
“Had it appeared to me that the applicant suffered from substantial mental impairment I would inevitably have put the case back and made arrangements for him to see the Court Duty Solicitor…”
Mr Jewkes stated that the applicant, when appearing before him at the Magistrates’ Court on 12 May 1993, had had minimal difficulty in walking into the witness box which required the negotiation of two steps. Mr Jewkes was confident that nothing in the way the applicant had answered questions put to him had suggested that he suffered from severe mental impairment. The applicant seemed to understand the nature of the proceedings.
12. Counsel for the applicant sought judicial review on several grounds. They argued, firstly, that the finding of the stipendiary magistrate of 15 January 1993 that the applicant had culpably neglected to pay community charge had been perverse. That was so because the magistrate did not make an adequate inquiry into the applicant’s means and
circumstances. Furthermore, the magistrate should have been aware from the appearance and demeanour of the applicant that he suffered from severe mental disability.
13. Mr Justice Harrison noted that the applicant’s submission was made in the light of the affidavit of his sister and the reports of Dr Londhe and the community health officer, and that that evidence had not been available to Mr Gillespie, the stipendiary magistrate who had decided on the matter. He then went on to review the process by which the magistrate had reached his decision, in the light of the evidence which had been available at the hearing before him, and stated, inter alia:
“Although I appreciate and take into account that the applicant’s sister and Dr Londhe both say that the applicant’s disabilities would have been immediately apparent, those persons were not in court on that day and, in the light of the contents of Mr Gillespie affidavit, I am not prepared to accept that Mr Gillespie was perverse in not realising the applicant’s disabilities. I note that in Dr Londhe’s report [it is said] that the applicant had clear speech, that he answered most of his questions and that there were no signs of thought disorder and his general mood appeared cheerful. Whether or not that was the situation on 15 January 1993, it seems to me, from Mr Gillespie’s affidavit, that it is simply not possible for me to hold that he was perverse in not realising the disabilities of this applicant.”
Mr Justice Harrison also found that the magistrate had inquired into the applicant’s means and that his finding that the applicant had taken no steps to obtain an instalment book and his conclusion that the applicant had culpably neglected to pay his community charge were not perverse. The magistrate’s failure to adjourn the hearing did not amount to perversity either, Mr Gillespie not having been aware of the applicant’s handicap. Mr Justice Harrison concluded:
“[A]lthough Mr Gillespie may well have reached a different conclusion if he had known what this court now knows, he did not act perversly or unreasonably in dealing with the matter in the way that he did on the evidence that was available to him at that hearing.”
14. Counsel for the applicant argued that the decision of 12 May 1993 had also been perverse. In particular, the magistrates failed to make proper enquiries in the light of the evidence received by them. It was perverse not to withdraw the postponed warrant of arrest in the light of the applicant’s circumstances and not to remit the debt.
Mr Justice Harrison rejected these arguments (except to the extent set out in paragraph 15 below) referring in part to his finding that the evidence in respect of the applicant’s disability had not been available to the Magistrates’ Court.
15. Mr Justice Harrison upheld counsel’s argument that the mention of a spell in hospital, which the applicant had made at the hearing on 12 May 1993, should have led the magistrates to make further inquiries. Mr Justice Harrison stated, inter alia:
“[i]t is quite clear …that [at the hearing on 12 May 1993] the applicant was saying that he had not been well and that he went back to hospital in February.
It is submitted by [the applicant] that that evidence should have led the justices to make inquiry about why he had been in hospital, particularly insofar as it may have been relevant to the question why he had not paid the community charge. That seems to me to be a good point … It seems to me that that evidence should have put the justices on notice at least to make further inquiries about the applicant’s state of health because it may have been relevant to his ability to pay before they sent him to prison for non-payment … In failing to do that the justices failed to take into account a material consideration.
For that reason I would quash the magistrates’ decision of 12 May 1993…
In view of my decision to quash the decision of May 1993, I have to consider whether I should remit the matter back to the justices… [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.”
Deciding on the matter of costs, Mr Justice Harrison considered that the justices’ conduct was not so outrageous as to justify an award of costs against them.
B. The case of Mrs Rowe
16. The applicant was at all relevant times suffering from back difficulties and asthma which have left her unfit for work. At the relevant period of time she received income support in the form of sickness benefit. Between September 1991 and July 1992, the Middleton Magistrates’ Court ordered the issue of liability orders in respect of the applicant’s unpaid community charge.
17. On 26 May 1993, in answer to a summons issued on the application of Rochdale Metropolitan Borough Council, the applicant appeared at the Middleton Magistrates’ Court for an inquiry to be made into her means and the reasons for her failure to pay the community charge.
The applicant, who was not represented, gave evidence that her income consisted of benefits amounting to some GBP 46 per week, that she had approached the Metropolitan Council with a view to arranging direct deductions from income support towards her community charge arrears, and
that a Council officer had advised her to contact the Council’s representative at court and that there would be no problems in arranging deductions.
On the basis of the evidence before them, the magistrates concluded that the applicant’s failure to pay the community charge was due to her culpable neglect and issued a warrant committing her to prison for 90 days, the maximum permitted by law.
18. The applicant spent three days in custody before release on bail pursuant to an order made on 28 May 1993 by a High Court judge, who also granted leave to move for judicial review.
The application for judicial review was heard in the High Court on 29 October 1993. The court observed that the purpose of the community charge legislation was to secure the collection of local taxes and not punishment.
In his judgment quashing the magistrates’ decision of 26 May 1993 Mr Justice Potts stated inter alia:
“...[T]he justices failed to exercise their discretion correctly. They could (and should) have directed themselves as to the possibility ... of deduction from income support of the sums due. The fact that the [magistrates’ clerk]’s affidavit is silent as to whether the justices considered this course leads me to think that they misdirected themselves and that their decision ... was flawed.”
C. The case of Mr Mudryj
19. In October 1990, the Newcastle-under-Lyme Magistrates’ Court made a liability order in respect of the applicant’s unpaid community charge.
On 5 November 1991, the applicant was brought before the same court, on a warrant issued on the application of Newcastle Borough Council, for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The applicant, who was not represented, gave evidence that he had been made redundant by his employer some six months previously, had recently separated from his wife and was living on income support.
On the basis of this evidence, the magistrates concluded that the applicant’s failure to pay the community charge was due to his wilful refusal. They fixed a term of imprisonment of 14 days but postponed its operation against weekly payments of GBP 8 towards the arrears. The applicant failed to maintain these payments and returned to court on 18 August 1992 on the Council’s further application. He was again unrepresented. He gave evidence that his weekly income was income support of GBP 47.50 and that his weekly outgoings amounted to GBP 46.
The magistrates issued a warrant committing him to prison for 14 days. At neither hearing was the applicant advised of any possibility of seeking legal representation.
20. The applicant spent several hours in custody before bail and leave to apply for judicial review were granted on the same day.
The application for judicial review was heard by the High Court on 12 January 1994. In his judgment quashing the applicant’s committal to prison, Mr Justice Dyson stated inter alia:
“...[I]t is clear on the evidence that these magistrates failed to consider any alternative to imprisonment. It would appear that they rather lost patience with the applicant... They decided immediately on the prison option without considering the alternative ways there were in which to exercise the discretion vested in them... [T]hey fettered their discretion in that they failed to have regard to the purpose of the legislation, namely the collection of local government taxes... [T]his was plainly an unlawful and wrong approach to the purpose of imprisonment. Accordingly ... the decision of 18 August 1992 to commit the applicant to prison was unlawful.
I turn, therefore, to the relief which it is appropriate to grant … I grant a declaration that the decision was unlawful, alternatively unreasonable, for the same reasons I granted such a declaration in the case of Massey”.
The Court further considered that the magistrates had made a genuine error of law and that their conduct was not so grievous as to justify an award of costs against them.
D. The case of Mr Massey
21. At all relevant times the applicant was living on income support. In September 1990, the Newcastle-under-Lyme Magistrates’ Court made a liability order in respect of the applicant’s unpaid community charge.
On 16 July 1991, in answer to a summons issued on the application of Newcastle Borough Council, the applicant appeared at the same court for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The magistrates found that his failure to pay the community charge was due to his culpable neglect. They fixed a term of imprisonment of 7 days but postponed its operation against monthly payments of GBP 20 towards the arrears. On 8 October 1991, at the request of the applicant, the court varied the terms of postponement to monthly payments of GBP 10.
The applicant failed to maintain these payments and was brought back before the magistrates on 5 May 1992 when a further means inquiry was held and the terms of postponement varied so as to require payments of GBP 26 every two weeks. The applicant was not represented on any of these occasions.
22. Following further failure to maintain payments, the applicant again appeared in court on 4 August 1992, still unemployed and in receipt of income support. He was again unrepresented. He advised the magistrates that his liability to make repayments under a loan agreement was about to come to an end, so that he would in the future be able to make payments to clear the remaining community charge arrears which then stood at approximately GBP 40. The magistrates issued a warrant committing him to prison for 5 days.
23. The applicant spent several hours in custody before release on bail pursuant to an order made the same day by a High Court judge, who also granted leave to move for judicial review.
The application for judicial review was heard by the High Court on 12 January 1994. Mr Justice Dyson quashed the magistrates’ decision of 4 August 1992. He stated inter alia:
“[T]he magistrates were unreasonable in the Wednesbury sense in committing the applicant to an immediate term of imprisonment on the facts of this case. On the uncontested evidence they failed to consider the alternative of accepting the offer that was made. On that basis it seems to me that …they regarded the purpose of the order for imprisonment which they imposed as punitive rather than coercive. I am quite satisfied that they failed to have regard to the purpose of the legislation by failing to consider the alternative of deducting the applicant’s arrears from his income support. The failure to consider that alternative was, in my view, an unlawful fetter of their discretion. Undoubtedly, Regulation 41(3) of the [1989 Regulations] does require the justices to exercise a discretion.
In these circumstances, it seems to me that the applicant had made out his entitlement to judicial review on the basis that the decision to commit was an unlawful decision…
I grant a declaration that the decision was unlawful, alternatively unreasonable. I do that because this is one of a number of cases in which these magistrates have made decisions similar to the one in question. Accordingly, it seems to me that it is desirable in the public interest that a declaration should be made making it quite clear that what was done here was unlawful, alternatively unreasonable.”
E. The case of Mr Knight
24. From 1988 onwards, after losing his employment, the applicant had a number of self-employed occupations, producing little or no income. He was ineligible for unemployment benefit during periods of inactivity. From about the end of 1992, when a small retail business he had established in February that year ceased trading owing some GBP 30,000, the applicant was dependent on income support. In 1991 and 1992, the Stoke-on-Trent Magistrates’ Court ordered the issue of a liability order in respect of the applicant’s unpaid community charge.
25. On 11 August 1992, in answer to a summons issued on the application of Stoke-on-Trent City Council, the applicant appeared at the same court for an inquiry to be made into his means and the reasons for his failure to pay the community charge. The applicant, who was not represented, gave evidence that:
(a) he set up the retail business, with the aid of a substantial mortgage, in early 1992. He had previously been unemployed. His business outgoings amounted to some GBP 2,000 per month. He found it difficult to stock the shop adequately;
(b) he presently drew no income from the business, but hoped that it would shortly produce sufficient income to enable himself and his wife each to pay GBP 10 per week towards their community charge arrears; and
(c) his wife suffered almost total deafness and was severely disabled as a result of a recent operation. She was in receipt of disability benefit of some GBP 41 per week. The applicant was obliged to care for her in addition to managing the business.
On the basis of this evidence, the magistrates concluded that the applicant’s failure to pay the community charge was due to his culpable neglect. They rejected the applicant’s offer to pay GBP 10 per week towards the arrears and issued a warrant committing him to prison for 7 days.
26. The applicant spent several hours in custody before release on bail pursuant to an order made on 11 August 1992 by a High Court judge, who also granted leave to move for judicial review.
The application for judicial review was heard in the High Court on 12 January 1994.
Mr Justice Dyson observed that the case before him was very similar to the cases of Mr Mudryj and Mr Massey, which he had examined on the same day, and that the applicants’ arguments had been essentially the same. He further stated:
“Given the peremptory way in which the magistrates dealt with the matter, in committing the applicant to prison after a fairly summary investigation as to his means at that time, I am driven to the conclusion that they failed to give consideration to any alternative ways of dealing with the matter. On that ground alone, it seems to me that, in the light of a number of recent authorities, to which my attention has been drawn, as to the necessity of considering alternatives to prison, this application must succeed…
Accordingly I conclude that the decision of 11 August 1992 was unlawful…I consider it appropriate in this case to grant a declaration that that decision was unlawful, alternatively unreasonable.”
F. The case of Mr Tilley
27. At the relevant time the applicant was on income support and was in poor health.
On 26 May 1993 the local Magistrates’ Court, having found that the applicant was in wilful default of paying community charge, committed him to 50 days in prison. He was not legally represented.
28. The applicant served 5 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.
On 26 January 1995 the High Court quashed the applicant’s committal to prison as the Magistrates’ Court had failed to consider possible alternatives to immediate imprisonment, such as the imposition of a deferred order of imprisonment or an order for deductions from the applicant’s income support.
Mr Justice Schiemann stated inter alia:
“However wilful the behaviour of the applicant may have been, if on the day of the hearing he indicates that he is, however foolishly, without resources, then the right course for the justices is to consider whether or not to make [an order]. Indeed, in the absence of compelling reasons... one of [the] alternatives must be pursued rather than imprisonment. The case law makes that plain.”
G. The case of Mr Crane
29. At the relevant time the applicant was an employee earning about GBP 180 per week, on which he was supporting his wife and two children.
On 3 August 1993 the applicant appeared before the local Magistrates’ Court in respect of his arrears of community charge. He made an offer to pay off these arrears at a rate of GBP 10 per week. The court noted that the applicant had failed, on an earlier occasion, to pay GBP 10 per week and found that the applicant had culpably neglected to pay the community charge. He was committed to 28 days in prison. The applicant was not legally represented at the committal proceedings.
30. The applicant served 9 days in prison. He applied for, and was granted, release on bail and leave to apply for judicial review before the High Court.
On 14 March 1995 the High Court quashed the applicant’s committal to prison. Mr Justice McCullough stated, inter alia:
“It is clear that the alternatives to immediate issue of a warrant of commitment must be considered before deciding to imprison immediately, and that the power to imprison immediately should not be exercised if any of the other alternatives provides a viable means to encourage, if not ensure, payment of the outstanding amount.
In this case the Justices refused to accept the applicant’s offer to pay the sum of GBP 10 a week, but this refusal was not unreasonable because the applicant had on an earlier occasion defaulted to pay GBP 10 a week.
The possibility of an Attachment of Earnings Order could not realistically be considered because … the applicant had not furnished any information … .
There is no reference here that the Justices [g]ave any consideration to the exercise of their power under Regulation 41(3)(b) to fix a term of imprisonment and postpone the issue of the warrant on condition that GBP 10 a week, or such greater amount as the Justices thought reasonable, be paid.
This should have been considered. The implication is that it was not and, accordingly, the decision must be regarded as flawed and has to be quashed, as it now is.”
H. The case of Mr Beattie
31. On 16 September 1992, at a hearing before the local Magistrates’ Court, the Preston Borough Council sought to commit the applicant to prison as he had not made any payments pursuant to the community charge liability orders issued against him. The applicant, who was not legally represented, told the court that he was in receipt of income support. The court issued a suspended order of 28 days in prison on condition of weekly payments of GBP 2.
32. The applicant failed to make any payments. Upon the request of the local Borough Council, the Preston Magistrates’ Court decided to hold a hearing on the matter on 2 December 1992. On that date the applicant did not appear before the court. The court issued a warrant.
33. The applicant was arrested on 26 February 1993 and served 6 days in prison. On 4 March 1993 he was released pursuant to an order granting his solicitors’ application for release on bail and leave to apply for judicial review.
In his application for judicial review the applicant claimed that the Magistrates’ Court had failed to consider the opportunity for direct deductions from his income support. In respect of the applicant’s absence from the hearing before the Magistrates’ Court on 2 December 1992 the application only mentioned that the applicant had “failed to attend”. The application did not rely on this fact as a ground for judicial review.
34. The application for judicial review was not opposed by the local community charge authority and the Magistrates’ Court agreed to sign a consent order. On 18 January 1995 the High Court quashed the applicant’s committal to prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions concerning enforcement of payment of the community charge
35. The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) (“the 1989 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:
“(2) Where an application under Regulation 41 has been made, and after the making of the inquiries mentioned in paragraph (2) of that regulation no warrant is issued or term of imprisonment fixed, the court may remit all or part of the appropriate amount … to which the application related.
(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.”
B. Appeal from a decision of a magistrates’ court by way of case stated
36. 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.
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.
37. 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  1 Appeal Cases 58, 124D-G (per Lord Justice Taylor in the Court of Appeal); London and Clydeside Estates Ltd v. Aberdeen District Council  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  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
38. 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 43 and 44 below).
39. 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  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 43 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, although it had jurisdiction, it were guilty of some gross and obvious irregularity of procedure, 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 ...”
40. 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  1 All England Reports 30, a case concerning rates (a local tax which was 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 elect bankruptcy. 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. Conditions precedent to the magistrates’ jurisdiction under regulations 41(2) and (3) of the 1989 Regulations
41. Those regulations require, as express conditions precedent to the magistrates’ power to issue a warrant of commitment to prison, (i) that the magistrates make an inquiry as provided for under regulation 41(2), and (ii) that the magistrates are satisfied that non-payment was due to wilful refusal or culpable neglect (see above paragraph 35 above).
42. The parties to the present case disputed whether the regulations establish as additional preconditions to the magistrates’ jurisdiction: (i) a duty to consider alternatives to imprisonment as a method to extract payments, and (ii) a duty to inquire into a change of circumstances where there had been a postponed issue of a warrant. Among the domestic case-law relied upon by the parties, were the following passages:
In R v Northampton Magistrates’ Court, ex parte Newell  RA 190, 207, Mr Justice Henry held as follows:
“The power to issue a warrant arises after the court has inquired in the debtor’s presence into whether his failure to pay … was due to his wilful refusal or culpable neglect and has found that it was. But they need not exercise that power immediately. They can, as here, fix the term of imprisonment and postpone the issue of the warrant on conditions. Section 12 [of the Interpretation Act 1978] then would entitle them to exercise that power (already vested in them) ‘from time to time as the occasion requires’ unless the contrary intention appears. The occasion certainly does not require a repeat of the s. [regulation] 41(2) inquiry. That is water under the bridge. The occasion does require application by the local authority, proper notice of that application to the defaulter to give him a fair opportunity to put his case as to why the warrant should not issue, followed by proof of breach and notice and proper consideration of any relevant material put forward by the defaulter. That is all the occasion requires, and no contrary intention appears in the regulations.”
The above conclusion was approved by the Master of the Rolls, Lord Donaldson, in the Court of Appeal judgment in the same case  RA 283, 292.
In R v Faversham and Sittingbourne Justices ex parte Ursell  RA 99, considering the requirements which must be met at a fresh hearing following postponement of the issue of a warrant, the Divisional Court stated:
“The question arises: On what matter is the debtor entitled to address the court at such a hearing? Clearly, she is entitled to put the authority to proof of non-payment. Further, in my judgment a debtor is entitled to draw the court’s attention to any change in circumstances since the decision to fix the term of imprisonment which renders it inexpedient for the warrant of commitment to issue. There must … be an inherent power in the court to vary its own order in a case where, since the decision was made, the debtor has become incapable of earning, for instance by reason of an accident.”
Lord Justice Kennedy stated in R v. Wolverhampton Magistrates’ Court, ex parte Mould  RA 309:
“…the power to commit to prison which is to be found in reg. 41 is plainly intended to be used as a weapon to extract payment rather than to punish …
…in the circumstances it might have been appropriate for the magistrate before making his order to ask the charging authority’s representatives if any thought had been given to the possibility of an application to the Secretary of State [for deductions from income support]. I appreciate that … a charging authority is not bound to take that course before seeking an order under reg. 41, but it would be relevant to the exercise of the magistrates’ discretion to know if the possibility of [deductions] had at least been considered.”
In R v. Newcastle-under-Lyme Justices, ex parte Massey  1 All ER 120, which was a decision of the Divisional Court relating to the costs of the High Court proceedings brought by Mr Massey, Mr Knight and others, Lord Justice Rose stated:
“A failure by justices to consider all possible alternative methods of enforcing payment before issuing a warrant for commitment might render their decision unreasonable in the Wednesbury sense …”
In the unreported case of R v. Middelton Magistrates ex parte Phillips (1993) Mr Justice Potts stated:
“[A] court which finds a debtor guilty of wilful refusal to pay the relevant sum has a discretion. The court is not required to commit such debtor to a term of imprisonment… Before committing a debtor to prison it is incumbent upon justices to consider all available alternatives to effect recovery of the sum due …
It does not follow that, because the applicant had wilfully refused to pay the relevant sum, there was no alternative other than an immediate sentence of imprisonment. Regulation 41(3)(b) makes that plain … The applicant had stated that she could pay off the arrears at GBP 3 per week. This was a relevant factor for the Justices’ consideration in the exercise of the discretion conferred, in particular by Regulation 41(3)(b) …
In my view the approach of the Justices and the decision to commit this applicant to prison was in the circumstances fundamentally flawed.”
E. The immunity of magistrates from civil proceedings
43. 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.
44. 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.
F. Legal aid
45. At the relevant time neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in community charge commitment proceedings. The “Green Form” legal aid scheme provided two hours of help from a solicitor, and could include preparation for a court case, but did not provide for representation. An extension of the costs limit could be granted by the Legal Aid Board. The Assistance by way of Representation scheme (“ABWOR”) enabled the court, in limited circumstances, to appoint a solicitor who happened to be within the court precincts to represent a party who would not otherwise be represented. The appointment might be made either of the court’s own motion or on application by a solicitor. The court was under no obligation to advise a party of the possibility of such an appointment. The Duty Solicitor scheme, which provided representation for the accused in criminal cases before magistrates, did not extend to community charge proceedings.
46. Following the Court’s judgment in the case of Benham v. the United Kingdom (judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 738), where the Court found a breach of Article 6 §§ 1 and 3(c) of the Convention in respect of the applicant’s complaint of a lack of legal representation, the United Kingdom enacted regulation 3(2) of the Legal Advice and Assistance (Scope) (Amendment) Regulations 1997 (S.I. 1997, No. 997). Under that provision, with effect from 1 June 1997, any person whose financial resources are such as to make him eligible is entitled to assistance by way of representation in proceedings before a magistrates’ court in which he is at risk of a term of imprisonment as a result of his failure to pay any sum which he has been ordered to pay.
PROCEEDINGS BEFORE THE COMMISSION
47. The dates on which the eight applications were lodged with the Commission were as follows: 26 April 1994 (application no. 25277/94), 27 April 1994 (application no. 25279/94), 27 June 1994 (applications nos. 25280/94 and 25281/94), 24 June 1994 (application no. 25285/94), 14 July 1995 (application no. 28048/95), 26 July 1995 (application no. 28192/95) and 24 August 1995 (application no. 28456/95). The applicants alleged breaches of Article 5 §§ 1 and 5 and Article 6 §§ 1 and 3(c) of the Convention.
48. The applications were declared admissible by the Commission on 2 July 1997. Applications nos. 25279/94, 25280/94, 25281/94, 25285/94, 28192/95 and 28456/95 were joined on the same date.
In its reports of 9 September 1998 (former Article 31), the Commission expressed the unanimous opinion that in each case there had been no violation of Article 5 of the Convention and a violation of Article 6 §§ 1 and 3(c).
FINAL SUBMISSIONS TO THE COURT
49. At the hearing on 29 June 1999 the Government invited the Court to hold that, as submitted in their memorial, there had been no violation of Article 5 of the Convention in any of the eight applications. The Government accepted that there had been violations of Article 6 §§ 1 and 3(c) of the Convention in all eight applications.
50. On the same occasion the applicants reiterated their request to the Court to find violations of Article 5 §§ 1 and 5 of the Convention in seven of the applications (excluding the case of Mr Beattie) and violations of Article 6 §§ 1 and 3(c) of the Convention in all eight applications.
AS TO THE LAW
I. SCOPE OF THE CASE
51. In their application bringing the case before the Court the Government only sought a ruling on the issue of just satisfaction under Article 41 of the Convention in respect of the undisputed breach of Article 6 §§ 1 and 3(c). In their memorial and at the hearing before the Court the Government nevertheless dealt with all issues in the case.
The Court reiterates that it has full jurisdiction within the limits of the case referred to it, the compass of which is delimited by the Commission’s admissibility decision. Within this framework, the Court may take cognisance of all questions of fact and law arising in the course of the proceedings instituted before it (see the T.W. v. Malta judgment of 29 April 1999, Reports 1999- , §§ 51-53).
The scope of the present case is not, therefore, confined to the sole provision of the Convention mentioned in the Government’s application bringing the case.
II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 5 OF THE CONVENTION IN THE CASE OF MR BEATTIE
52. Mr Beattie, noting that the Commission based its conclusions in his case on the finding that his factual allegations had not been supported by sufficient evidence, expressly stated that he did not pursue before the Court his complaint that there had been violations of Article 5 §§ 1 and 5 of the Convention.
53. In view of the applicant’s position, the Court sees no reason to deal with the above complaints of its own motion.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN THE CASES OF MR PERKS, MRS ROWE, MR MUDRYJ, MR MASSEY, MR KNIGHT, MR TILLEY AND MR CRANE
54. The applicants complained that their detention was unlawful and contrary to Article 5 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 5 – Right to liberty and security
“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: …
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;…”
A. Arguments of those appearing before the Court
1. The applicants
55. The applicants submitted that in each of their cases the magistrates’ courts had acted in excess of jurisdiction, and therefore unlawfully. Their decisions, which were all quashed by the High Court, were not merely the result of errors of fact or law. The magistrates’ courts failed to comply with a precondition necessary to support their jurisdiction to order a warrant of commitment to prison.
The applicants further submitted that the distinction between a jurisdictional error and an error in fact or law might not be always obvious. In the absence of a direct ruling on the issue by the national courts, it must be made by reference to domestic case-law, as in the case of Benham. The Benham case, however, was not a sufficiently clear case on its facts to give rise to a finding of a violation of Article 5 § 1 of the Convention.
56. Mr Perks argued that, in his case, the magistrates had failed to enquire whether there had been a change of circumstances between the fixing of a term of imprisonment and the subsequent issue of a warrant.
He agreed with the Commission that the stipendiary magistrate had conducted a means inquiry and had analysed his conduct at the hearing before him on 15 January 1993. However, an imprisonment warrant was issued after a second hearing, on 12 May 1993. In the applicant’s view the mere fact that there had been an initial inquiry did not empower the magistrates before whom he appeared on 12 May 1993 with jurisdiction to issue an imprisonment warrant where the circumstances had changed. This is obvious in the case of a magistrates’ court refusing to inquire into the change of circumstances in a situation where the debtor had become unable to pay, for example through accident or illness.
The applicant maintained, therefore, that a proper inquiry at the resumed hearing, where a warrant had been postponed, was just as much a condition precedent to the magistrates’ jurisdiction as an adequate inquiry into the debtor’s means and conduct. He referred in particular to the Divisional Court’s judgment in R v. Faversham and Sittingbourne Justices ex parte Ursell  RA 99 (see paragraph 42 above).
57. Mrs Rowe, Mr Mudryj, Mr Massey, Mr Knight, Mr Tilley and Mr Crane submitted that the jurisdictional error in their cases was that the magistrates had failed to consider alternatives to immediate imprisonment. Their duty to do so was imposed by regulation 41(3)(b) and regulation 42(2) of the 1989 Regulations. While an error of fact or law in the performance of this duty was not sufficient to defeat the magistrates’ jurisdiction, a failure to consider alternatives at all was an error of the same character as a failure to conduct a means inquiry.
The applicants considered it evident, on the basis of the High Court’s judgments in their cases, that the magistrates’ power to issue a warrant only arose if and when they had first considered and rejected alternatives to imprisonment, the performance of this exercise being a condition precedent to the magistrates’ jurisdiction. The applicants disagreed with the findings of the Commission in this respect.
The applicants further stressed that the “unreasonableness” of the imprisonment orders had not been part of the essential basis for the High Court’s decisions to quash the warrants. The words “unlawful, alternatively unreasonable”, in the High Court’s formal orders in some of the cases reflected the fact that the applicants had advanced an alternative additional ground for quashing the magistrates’ orders.
Moreover, the precondition recognised by the domestic courts finds its rationale directly in Article 5 § 1(b) of the Convention, which requires that detention under this provision must aim at or directly contribute to securing the fulfilment of the obligation, and not tend to punish past behaviour. In order to ensure that imprisonment is coercive rather than merely punitive, the 1989 Regulations insert the statutory duty to consider alternatives to imprisonment as an additional step in the procedure between a finding of wilful refusal or culpable neglect on the one hand, and the power to issue a warrant on the other. The applicants submitted that, therefore, not having considered alternatives to imprisonment in their cases, the magistrates had acted in excess of jurisdiction and not in accordance with a procedure prescribed by law.
2. The Government
58. The Government disputed the applicants’ allegation that the magistrates’ decisions ordering their imprisonment had been in excess of jurisdiction and unlawful under domestic law.
They submitted that regulations 41(2) and (3) of the 1989 Regulations contained two express statutory conditions precedent to the magistrates’ courts’ power to issue a warrant of commitment to prison: that the court inquires into the debtor’s means, and that it is of the opinion that his failure to pay was due to his wilful refusal or culpable neglect. Provided that these two conditions are met the power to issue a warrant of commitment to prison is not subject to any other express statutory condition precedent.
59. In particular, where a magistrates’ court has postponed the issue of a warrant, as in the case of Mr Perks, a further inquiry as to whether the debtor’s failure to pay was due to wilful refusal or culpable neglect is not a condition precedent to the magistrates’ jurisdiction to issue the warrant, since a requirement for such further inquiry is not found in the 1989 Regulations. The magistrates’ decision of 12 May 1993 was quashed only because they had failed to take into account a consideration relevant to the exercise of their discretion.
In respect of the cases of Mrs Rowe, Mr Mudryj, Mr Massey, Mr Knight, Mr Tilley and Mr Crane, the Government maintained, by reference to domestic case-law, that considering alternatives to imprisonment was likewise a question of exercise of discretion and not a jurisdictional issue. The basis of the High Court’s judgments quashing the commitment orders in those cases was that the magistrates had a discretion vested in them to issue a warrant, but that its exercise was flawed. The Government recalled that the Court had found no violation of Article 5 of the Convention in its Benham judgment, where one of the grounds on which the warrant of commitment to prison had been set aside had been precisely that the magistrates had failed to consider all available alternatives to immediate imprisonment.
60. At the hearing before the Court, the Government further maintained that the applicants’ detention was ordered in accordance with the procedure prescribed by the 1989 Regulations. The detention orders were not set aside because of any failure to follow that procedure, but because of a defect in the magistrates’ reasoning. Finally, the purpose of the detention was to extract payment and that stemmed from the 1989 Regulations. In particular, it remained the position that if the applicants had paid the amounts due, they would have been immediately released.
3. The Commission
61. In its reports under former Article 31 of the Convention the Commission did not consider that the orders for the applicants’ detention were invalid or that the detention which resulted from them was unlawful under domestic law. Analysing the relevant case-law, the Commission found, in particular, that it could not be said, with any degree of certainty, that the deficiencies of the magistrates’ decisions in any of the cases were of such a nature as to lead to a finding that the magistrates had acted in excess of jurisdiction.
B. The Court’s assessment
(a) General principles
62. As stated in the Benham case, cited above,
“[t]he 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, namely to protect individuals from arbitrariness … .
It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 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.
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.
…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 are 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.
…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.” (the Benham judgment, loc. cit., pp. 752-753, §§ 40-43)
63. In the present case, not having the benefit of formal rulings of domestic courts on the lawfulness of the applicants’ detention - which was the consequence of the operation of Section 108 of the Courts and Legal Services Act 1990 (see paragraph 44 above) - the Court must examine whether it can be said, with a degree of certainty, that the applicant’s detention was unlawful under domestic law (cf. the Benham judgment, loc. cit., p. 754, § 46).
(b) Application of those principles to the present case
64. As regards Mr Perks, it is not disputed that on 15 January 1993 a stipendiary magistrate inquired into the applicant’s means and considered that his failure to pay was due to culpable neglect. The applicant submits, however, that the issue of a warrant having been postponed, the justices before whom he appeared on 12 May 1993 acted in excess of jurisdiction when they issued the warrant without having inquired into whether there had been a change of circumstances since the January hearing.
The Court notes that in the judicial review proceedings Mr Justice Harrison upheld the applicant’s argument that the magistrates should have inquired about why he had been in hospital, insofar as this may have been relevant to the question why he had not paid the community charge. The applicant’s argument had been that the evidence before the magistrates and, in particular, the mention of a spell in hospital, should have led the magistrates to make that inquiry. Furthermore, Mr Justice Harrison relied expressly on the fact that at the hearing on 12 May 1993 before the magistrates the applicant had stated that he had been “back in hospital” and concluded that “that evidence should have put the justices on notice at least to make further inquiries” (see paragraph 15 above). It appears, therefore, that the magistrates’ failure to inquire into the change of the applicant’s circumstances was seen as a failure to take notice of a relevant piece of evidence and draw the ensuing conclusions, rather than as neglecting an express statutory condition precedent to their jurisdiction.
Indeed, the Court is not convinced that, as alleged by the applicant, the relevant domestic case-law should be read as clearly providing for a fresh inquiry as a condition precedent to the magistrates’ jurisdiction to issue a warrant which had previously been postponed.
In these circumstances the Court does not find it established, with any degree of certainty, that the magistrates’ decision to issue a warrant against Mr Perks suffered from a defect other than unreasonableness within the meaning of the “Wednesbury” doctrine.
65. In the cases of Mrs Rowe, Mr Mudryj, Mr Massey, Mr Knight, Mr Tilley and Mr Crane, the Court notes, and it has not been disputed, that the magistrates conducted inquiries into the applicants’ means and found that their failure to pay was due either to culpable neglect or to wilful refusal. These findings were not overturned in the judicial review proceedings (see paragraphs 17, 19, 21, 25, 27 and 29 above).
It is also undisputed that the magistrates failed to consider alternatives to imprisonment as a means to extract payment and that their decisions were quashed on that ground. The contested issue is whether that defect of the magistrates’ decisions was of such a nature as to render them invalid for being in excess of jurisdiction. In addition, the purpose of Article 5 of the Convention, to protect individuals against arbitrariness (see above paragraph 62), requires that the above issue be examined in the general context of the applicants’ complaints.
66. The Court attaches importance to the reasoning of the High Court judgments in the applicants’ cases.
Mr Justice Potts, when quashing the committal order in the case of Mrs Rowe, stated that the magistrates had “failed to exercise their discretion correctly” in that they had not considered the possibility of deductions from income support as a means to extract payment (see paragraph 18 above).
Mr Justice Dyson, who decided the cases of Mr Mudryj, Mr Massey and Mr Knight on the same day, and considered that the arguments of those three applicants had been essentially the same (see paragraph 26 above), found, in the case of Mr Mudryj, that the magistrates had not considered the alternative ways “in which to exercise the discretion vested in them”, in the case of Mr Massey, that the magistrates had been “unreasonable in the Wednesbury sense in committing [him] to an immediate term of imprisonment on the facts of [the] case” and, in the case of Mr Knight, that the magistrates had failed to consider alternatives to imprisonment (see paragraphs 20, 23 and 26).
In the cases of Mr Tilley and Mr Crane, the High Court criticised the approach of the magistrates who had failed to consider a postponement of the issue of a warrant as an alternative means of extracting payment.
In particular, in the case of Mr Crane, the High Court found that “the power to imprison immediately should not be exercised” if any of the other alternatives provides a viable means to extract payment. The court further examined, on the facts of the case, whether there had been such viable means. It found that the applicant’s offer to pay weekly instalments and the possibility of ordering deductions from income were not realistic alternatives. The High Court only quashed the magistrates’ decision after having found that the possibility of fixing a term of imprisonment and postponing the issue of a warrant on conditions should have been considered on the particular facts of the case (see paragraphs 28 and 30 above).
67. In these circumstances the Court agrees with the Commission that, in the cases of Mrs Rowe, Mr Mudryj, Mr Massey, Mr Knight, Mr Tilley and Mr Crane, the High Court apparently left open the possibility that the imprisonment orders were within the magistrates’ jurisdiction, their defect being only a fettered exercise of discretion, and that the use of the word “unlawful” in some of the judgments cannot be regarded as a finding of a failure to observe a condition precedent. It cannot be excluded that these orders were “flawed” or “unlawful” in the sense of being an unreasonable exercise of discretion within the Wednesbury doctrine, but nevertheless fell within the jurisdiction of the courts by which they were made.
Furthermore, the Court agrees with the Commission that there is no sufficiently strong indication that the consideration of alternatives to imprisonment in community charge proceedings, as in the applicants’ cases, was regarded as a jurisdictional issue under English law.
68. Against the above background, the Court finds that it cannot be said with any degree of certainty, in respect of any of the seven applications, that the judgments of the national courts quashing the magistrates’ imprisonment orders were to the effect that the magistrates had acted in excess of jurisdiction within the meaning of English law. The Court, therefore, does not find it established that the imprisonment orders were invalid, and thus that the detention which resulted from it was unlawful under national law.
69. The applicants also contended that, by not considering alternatives to imprisonment, the magistrates’ detention orders were not permissible under Article 5 § 1(b) of the Convention. The Court must also examine whether these orders were in keeping with the underlying purpose of Article 5, the protection against arbitrariness.
70. As regards the allegation that the applicants’ detention could not be justified under Article 5 § 1(b) of the Convention, the Court notes that a similar argument was implicitly rejected in the Benham case (loc. cit., p. 752, §§ 36 and 39). The Court accepts that the purpose of the detention orders in the present applications was to secure the fulfilment of the applicants’ obligations to pay the community charge owed by them and were, thus, compatible with the objectives of Article 5 § 1(b). Moreover, having found that the flaw identified in the said orders could have been a fettered exercise of discretion, the Court does not find it established that the nature of the applicants’ imprisonment, pursuant to the 1989 Regulations, was altered to such an extent as to question the applicability of paragraph 1(b) of Article 5 of the Convention in the present case.
Finally, the Court notes that it has not been suggested that the magistrates acted in bad faith (see the Benham judgment, loc. cit., p. 754, § 47). While it is not excluded that a fettered exercise of discretion or failure to have regard to a relevant piece of evidence may render arbitrary an otherwise formally lawful decision, the Court does not find it established that in any of the cases of the seven applicants the magistrates’ orders amounted to arbitrariness.
71. For these reasons, the Court finds that there has been no violation of Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION IN THE CASES OF MR PERKS, MRS ROWE, MR MUDRYJ, MR MASSEY, MR KNIGHT, MR TILLEY AND MR CRANE
72. The applicants alleged that, since the entry into force of Section 108 of the Courts and Legal Services Act 1990, United Kingdom law was in structural breach of Article 5 § 5 of the Convention in that it did not ensure compensation for unlawful detention without establishing bad faith on the part of the authorities. Article 5 § 5 of the Convention 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.”
73. The Government and the Commission, having considered that Article 5 § 1 had not been violated in the applicants’ cases, submitted that paragraph 5 of that provision was not applicable.
74. The Court observes that Article 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. In view of its finding that there was no violation of Article 5 § 1 in this case, it concludes that Article 5 § 5 is not applicable (see the Benham judgment, loc. cit., p. 755, §50).
V. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(C) OF THE CONVENTION IN ALL EIGHT APPLICATIONS
75. It was common ground among the parties that there had been a violation of Article 6 §§ 1 and 3(c) in each of the applicants’ cases in that they were not legally represented and had no right to legal aid in the proceedings before the magistrates’ courts which led to their imprisonment.
The Government pointed out, in addition, that since 1 June 1997, after the events at issue, the relevant law was amended to provide for free legal aid in this kind of case (see paragraph 46 above).
76. The Court notes, and it is indeed undisputed, that the applicants lacked sufficient means to pay for legal representation and that free assistance by way of legal representation before the magistrates’ court was not available at the relevant time (see paragraphs 7, 8, 16, 17, 19, 21, 22, 24, 25, 27, 29 and 31 above).
Although, since 1 June 1997 the law has changed, the Court has to restrict its assessment to the actual circumstances of the applicants’ cases at the material time (see the Nikolova v. Bulgaria judgment of 25 March 1999, § 62, to be published in Reports 1999).
The Court finds therefore that, insofar as the issues under Article 6 §§ 1 and 3(c) are concerned, the cases before it are practically identical to the Benham judgment, cited above. Having regard to the severity of the penalty risked by the applicants and the complexity of the applicable law, the interests of justice demanded that, in order to receive a fair hearing, the applicants ought to have benefited from free legal representation before the magistrates.
Since this was not the case in any of the eight applications, the Court finds that there has been a violation of Article 6 §§ 1 and 3(c) in each of them.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
77. The applicants sought just satisfaction for non-pecuniary damage and costs and expenses under Article 41 of the Convention, which provides:
“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
78. The applicants submitted that the Court should scrutinise with special care claims for compensation arising from procedural violations in proceedings which have led to imprisonment. Such an approach, they went on to argue, was consistent with the importance attached by the Convention to physical liberty.
While accepting that no just satisfaction is to be awarded where there is no causal link between the violation of Article 6 and the decisions of the national courts, the applicants contended that compensation is necessary where these decisions were shown to have been wrong and have resulted in an unjust deprivation of liberty. In the applicants’ view, they should not be expected to prove with certainty that the injustice would not have occurred but for the violation of Article 6. This would be asking the impossible. What matters, however, is that it is impossible to say that, if the applicants had benefited from legal representation, that would have made no difference.
The applicants considered, therefore, that it was necessary to strike a balance. While they did not ask the Court to assess compensation on the basis of the full recovery of loss, the applicants maintained that they should not be denied just satisfaction altogether.
79. At the hearing before the Court, counsel for the applicants added on behalf of Mr Perks that, in view of the remarks of Mr Justice Harrison in the judgment in his case, it was beyond reasonable doubt that Mr Perks would not have been imprisoned had he been legally represented before the magistrates.
80. The Government stated in their memorial that the finding of a violation of Article 6 §§ 1 and 3(c) of the Convention would constitute sufficient just satisfaction. They drew attention to the amended law on legal aid and submitted that the present applications before the Court do not differ from the aforementioned Benham judgment where the Court had refused to speculate as to whether the magistrates would have ordered the applicant’s imprisonment had he been legally represented.
At the hearing before the Court, the Government rejected as inappropriate the applicants’ suggestion that the Court should estimate, on balance, the chances that they would not have been imprisoned if they had been legally represented. Taking as an example the case of Mr Mudryj, they submitted that there is no indication that the magistrates, had they heard a legal representative for Mr Mudryj, would have found that an alternative to imprisonment would have been appropriate in the face of that applicant’s wilful refusal to pay.
The Government conceded that the situation of Mr Perks was an exception. In that case Mr Justice Harrison found that it was unlikely that the magistrates would have committed Mr Perks to prison if they had known more about his health problems and personal circumstances. The Government accepted that a reasonably competent solicitor would have drawn the magistrates’ attention to those circumstances.
81. The Court sees no reason to disregard the Government’s position in respect of the case of Mr Perks. Deciding on an equitable basis, it therefore awards 5,500 pounds sterling (GBP) to Mr Perks in respect of non-pecuniary damage.
82. As regards the remaining seven applicants, the Court finds that there is no basis to speculate as to the outcome of the proceedings before the magistrates’ courts and is unable to find a feature distinguishing them from the case of Benham which might justify a departure from the Court’s approach in that judgment (see the Benham judgment, loc. cit., § 68). Accordingly, it considers that the finding of a violation of Article 6 §§ 1 and 3(c) of the Convention constitutes in itself sufficient just satisfaction for these applicants’ alleged non-pecuniary damage.
B. Costs and expenses
83. Mr Beattie, who was represented by solicitors at the Rochdale Law Centre, claimed GBP 5,464.54 plus value added tax in respect of their work. The remaining seven applicants, who were jointly represented by HMB law solicitors, claimed a total of GBP 13,860 plus value added tax for their work. All applicants together claimed an additional GBP 10,100, plus value added tax, in respect of the work of Mr Emmerson, their counsel.
84. The Government maintained that, in case of a finding of no violation of Article 5 of the Convention, a significant reduction should be applied to the applicants’ claims in view of the fact that the bulk of their submissions had concerned their unsuccessful complaints under that Article.
85. The Court considers that only a minimal reduction of the applicants’ claims, on account of the partial finding of a violation, is appropriate, given that it was the Government who referred the applications to the Court, causing the applicants’ additional legal costs as a result (cf. the Benham judgment, loc. cit., § 71). Making an assessment on an equitable basis the Court awards GBP 28,000, plus any value added tax which may be chargeable, but less the amounts received by Mr Beattie in legal aid from the Council of Europe (23,958 FF).
C. Default interest
86. 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 7.5% per annum.
FOR THESE REASONS THE COURT
1. Holds unanimously that it is not necessary for the Court to consider of its own motion the complaints of Mr Beattie under Article 5 §§ 1 and 5 of the Convention;
2. Holds by five votes to two that there has been no violation of Article 5 § 1 of the Convention in respect of Mr Perks;
3. Holds unanimously that there has been no violation of Article 5 § 1 of the Convention in respect of any of the remaining six applicants;
4. Holds unanimously that Article 5 § 5 of the Convention is not applicable;
5. Holds unanimously that there has been a violation of Article 6 §§ 1 and 3(c) of the Convention in respect of each of the eight applicants;
6. Holds by five votes to two that this latter finding of a violation in itself constitutes sufficient just satisfaction in respect of Mrs Rowe, Mr Mudryj, Mr Massey, Mr Beattie, Mr Knight, Mr Tilley and Mr Crane;
7. Holds unanimously
(a) that the respondent Government is to pay Mr Perks, within three months, for non-pecuniary damage, 5,500 (five thousand and five hundred) pounds sterling;
(b) that the respondent Government is to pay the applicants, within three months, for costs and expenses, 28,000 (twenty eight thousand) pounds sterling, plus any value-added tax that may be chargeable, less 23,958 (twenty three thousand nine hundred and fifty eight) French francs, to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment;
(c) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;
8. Dismisses unanimously the remainder of the applicants’ claims for just satisfaction.
Done in English and delivered in writing on 12 October 1999.
Signed: Sally DOLLé Signed: Jean-Paul COSTA
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mrs Tulkens and Mrs Greve is annexed to this judgment.
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.
Notes by the Registry
1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.
. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.
 Note by the Registry. Copies of the Commission’s reports are obtainable from the Registry.