24 March 2011

FOURTH SECTION
Application no. 53414/09
by Stephen WANDLESS
against the United Kingdom
lodged on 30 September 2009

STATEMENT OF FACTS
THE FACTS
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1992 the applicant suffered an accident at work. He lost the ability to work, became depressed and lived on Industrial Injuries Disablement Benefit. After 8 January 1999 the applicant stopped paying council tax. In or around 2006 the applicant applied for Housing Benefit and Council Tax Benefit. The Housing Benefit he received covered all bar GBP 2 per month of his rent and he believed that the Council Tax Benefit he received covered his entire liability for council tax.
The applicant received a summons to attend a committal hearing for non- payment of council tax at the end of September or beginning of October 2008. The committal hearing took place on 8 October 2008. Prior to the hearing, the applicant spoke to the duty solicitor present at the court, who told the applicant that he was a criminal lawyer and could not assist. The applicant then indicated to the court that he was content for the hearing to proceed without his being represented. Also present at the hearing were a representative of Calderdale Council (the claimant), two Justices, and the Justices’ legal advisor.
The arrears of council tax were stated to be GBP 4,516.26 going back to 1995. The council’s representative’s case was that the applicant had deliberately refused to pay council tax. The applicant explained that he believed he had been claiming full council tax benefit and offered to pay GBP 10 a month towards the arrears of council tax.
The hearing, together with the Justices’ deliberations, lasted between 15 and 30 minutes. At the conclusion of the hearing the Justices sentenced the applicant to prison for 90 days, the maximum sentence available to them.
The applicant was taken to Her Majesty’s Prison Leeds. He spent 34 days in prison before, on the order made by way of interim relief pending determination of judicial review/appeal proceedings which he had issued, he was released on 5 January 2009.
At the judicial review hearing on 2 April 2009, at which the applicant was represented, the High Court judge quashed the Justices’ decision of 8 October 2008. In a written judgment, the judge stated he was satisfied that the committal order was unlawfully made on the basis that the Justices: (i) had failed properly to investigate the applicant’s means as required by section 47(2) of the Council Tax (Administration and Enforcement) Regulations 1992 (as amended), and failed to investigate what the applicant’s means were during each period of alleged default; (ii) had failed to make proper findings as to what exact sums were owed in respect of each period of alleged default “as by law they were required to do”; (iii) had failed to consider the alternatives to immediate imprisonment, in circumstances where the applicant made an offer to meet the arrears by instalments, and where, on the Justices’ behalf, it was submitted that they had proceeded on the basis that the applicant had no assets and no funds. The judge concluded:
“the very strong impression I have from the material before me ... is that unfortunately the Justices were diverted down the road of viewing this case as one deserving punishment rather than concentrating upon a proper consideration of determining a practical means of extracting payment. I am also of the view that the Justices must have ignored the principle of proportionality when imposing the maximum term which they did.”
The judge declined to make a direction that the matter be remitted to the Justices with an indication or direction that they should remit arrears, preferring not to usurp the Justices’ functions in this way, but instead observed that were the matter to come before the Justices again, they “may well consider” exercising their power to remit in the light of his findings.
The applicant did not pursue a claim for costs or damages against the Justices, because he was advised that such a claim would have no prospect of success pursuant to sections 31-34 of the Courts Act 2003 (see below).
B.  Relevant domestic law and practice
1.  Justices’ power to commit to prison
Justices’ power to commit to prison for non payment of council tax is provided for by regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992 (as amended). The relevant part of section 47 provides:
“(1)  Where a billing authority has sought to levy an amount by distress under regulation 45, the debtor is an individual who has attained the age of 18 years, and the person making the distress reports to the authority that he was unable (for whatever reason) to find any or sufficient goods of the debtor 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 has led to the application is due to his wilful refusal or culpable neglect.
(3)  If (and only if) the court is of the opinion that his failure is 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 3 months, unless the amount stated in the warrant is sooner paid.”
Relevant domestic case law qualifying the use of this power is set in the decision on admissibility in Lloyd and 44 others v the United Kingdom, (applications nos 29798/96 and others) (dec.), 21 October 2003.
2.  Damages for the acts of Justices
Under the heading “Protection and indemnification of justices and justices’ clerks”, sections 31-33 of the Courts Act 2003 provide as follows:
31 Immunity for acts within jurisdiction
(1)  No action lies against a justice of the peace in respect of what he does or omits to do—
(a)  in the execution of his duty as a justice of the peace, and
(b)  in relation to a matter within his jurisdiction.
...
32 Immunity for certain acts beyond jurisdiction
(1) An action lies against a justice of the peace in respect of what he does or omits to do—
(a)  in the purported execution of his duty as a justice of the peace, but
(b)  in relation to a matter not within his jurisdiction,
if, but only if, it is proved that he acted in bad faith.
...
33 Striking out proceedings where action prohibited
(1)  If an action is brought in circumstances in which section 31 or 32 provides that no action lies, a judge of the court in which the action is brought may, on the application of the defendant, strike out the proceedings in the action.
(2)  If a judge strikes out proceedings under subsection (1), he may if he thinks fit order the person bringing the action to pay costs.
34 Costs in legal proceedings
(1)  A court may not order a justice of the peace to pay costs in any proceedings in respect of what he does or omits to do in the execution (or purported execution) of his duty as a justice of the peace.
...”
3.  Legal aid for committal proceedings
Following the Court’s finding in Benham v. the United Kingdom, 10 June 1996, Reports of Judgments and Decisions 1996‑III, legal aid in the form of “assistance by way of representation” (“ABWOR”), is available to defendants in committal proceedings (section 7(4) of the Legal Advice and Assistance (Scope) Regulations 1989/550).
COMPLAINTS
The applicant complains that his committal to prison following the hearing on 8 October 2008 breached his right to liberty under Article 5 § 1; and that he had no enforceable right to compensation arising from unlawful detention in breach of Article 5 § 5 and thus no effective remedy under Article 13. He further complains that his Article 6 § 1 rights were breached by the perfunctory nature of the hearing on 8 October 2008 and that his lack of legal representation constituted a breach of Article 6 § 3(c).
QUESTIONS TO THE PARTIES
1.  Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicant’s detention “lawful” and “in accordance with a procedure prescribed by law” (see, for example, Benham v. the United Kingdom, 10 June 1996, § 42, Reports of Judgments and Decisions 1996‑III; Vasileva v. Denmark, no. 52792/99, 25 September 2003)?

2.  Did the applicant have at his disposal an enforceable right to compensation within the meaning of Article 5 § 5 and/or an effective remedy within the meaning of Article 13?