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Cite as: [2000] EWLC 266(A)
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APPENDIX A
DAMAGES FOR JUDICIAL ACTS
1 INTRODUCTION
A.1 The HRA does not permit damages to be awarded in respect of any judicial act done in good faith, other than "to compensate a person to the extent required by Article 5(5) of the Convention."[1] This exception reflects the special feature of Article 5, that – uniquely among the Convention rights[2] – it has a self-contained provision for compensation. Article 5(5) provides:
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.
Under the HRA, such an award is made, not against the Court itself, but against the Crown; and provision is made for the appropriate Minister or Government Department to be joined as a party to the proceedings.[3]
A.2 In considering the application of Article 5 to detention by judicial order, it has to be borne in mind that Article 5 involves a "double test": the order must both comply with the substantive and procedural requirements of the Convention, and also be "lawful" under domestic law.[4] The latter test arises from the general requirements, which apply to each paragraphs of Article 5(1),[5] that the detention must be "lawful" and "in accordance with a procedure prescribed by law".
A.3 Liability in damages for judicial violations of Article 5 may arise under either test. Some examples will be found in Part VI. Since this paper is concerned with damages, rather than liability, we do not consider in detail the circumstances in which a judicial order may fail the second test.[6] However, the application of the first test - "lawfulness" under domestic law - deserves special attention because of the potential difficulty of applying the Strasbourg case-law in the domestic courts. As will be seen, an order is not "unlawful" in this context merely because it is overturned for error of law or even on Wednesbury[7] grounds. The court must have gone beyond its "jurisdiction".[8] The difficulty is in defining the limits of that term in English administrative law, in which, for most purposes, the differences between jurisdictional and non-jurisdictional errors have disappeared.[9]
2 JUDICIAL IMMUNITY IN THE UNITED KINGDOM
A.4 To understand the Strasbourg case-law on this issue, it is necessary to refer to the pre-1990 law in this country relating to magistrates' immunities.[10] Since 1990,[11] magistrates in England and Wales have enjoyed the same protection as judges of higher courts against actions for damages in respect of acts or omissions in good faith in the purported execution of their duties. Prior to that, however, a magistrate's immunity (unlike that of the higher courts) had been confined to "any matter within his jurisdiction".[12] As will be seen, the Strasbourg Court has treated the case-law relating to that criterion as relevant also to Article 5. The pre-1990 case-law will therefore be relevant when considering claims for damages under section 9(3), although the claims will be against the relevant Department, rather than against magistrates personally.
A.5 Two cases are of importance: Re McC (A Minor)[13] and R v Manchester City Magistrates' Court ex p Davies.[14] In Re McC, Lord Bridge, giving the leading speech in the House of Lords, explained that the word "jurisdiction" had been used "with ... many different shades of meaning" in different areas of law.[15] In the present context, it was not to be interpreted in the "extended" sense applicable, since Anisminic,[16] in judicial review generally.[17] Lord Bridge identified three categories of case in which justices can properly be regarded as having acted outside, or in excess, of their jurisdiction.[18] The first category consists of cases where the justices do not have jurisdiction to entertain the proceedings at all.[19] The second category consists of cases where, although the justices have duly entered upon the summary trial of a matter within their jurisdiction, "something quite exceptional" occurring in the course of the proceedings ousts that jurisdiction.[20] Thus, justices would be acting without, or in excess, of jurisdiction if
in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence.[21]
The third category consists of cases where, although the justices have jurisdiction of the case and conduct the trial impeccably, the determination of the matter before them "does not provide a proper foundation in law" for any sentence imposed or order made.[22]
A.6 In Re McC itself, the magistrates' error was the breach of a statutory requirement to inform a minor of his right to apply for legal aid, before imposing a sentence of imprisonment. It was held that this was the breach of a "statutory condition precedent, necessary to give justices jurisdiction" to pass the sentence; it was not "a mere procedural irregularity".[23] Accordingly, the magistrates were not immune from action for damages.
A.7 In R v Manchester City Magistrates' Court ex parte Davies,[24] the magistrates had committed the applicant to prison for failure to pay a rate demand. Before making such an order, the court was required by the statute to conduct an "inquiry" as to whether the failure to pay was "due either to his wilful refusal or to his culpable neglect".[25] The magistrates had concluded that the applicant was guilty of culpable neglect in failing to take his accountant's advice to close his business and go bankrupt; but they had omitted to consider whether there was any causal connection between that failure and the failure to pay rates. The committal order was therefore quashed, and the applicant sought damages for his imprisonment (for almost 2 months).
A.8 The Court of Appeal held, by a majority, that, following Re McC (A Minor),[26] the magistrates had failed to make the inquiry required by the statute, and that such an inquiry was a statutory condition precedent to their jurisdiction. Accordingly, they were not protected against a claim for damages. The majority characterised the magistrates' error as overlooking altogether the requirement of the statute,[27] or "finding an answer to the wrong question".[28] Sir Roger Ormrod, dissenting, described the error as "misdirect[ing] themselves completely as to the terms and meaning" of the section:
They seem to have treated the question as disjunctive, ie "was there a failure to pay and was the defendant guilty of culpable neglect?"[29]
In his view, that was "an error of law in a matter within their jurisdiction", and therefore not an error which deprived them of immunity.[30]
3 STRASBOURG CASE-LAW
A.9 There have been two important decisions of the Strasbourg Court on the application of Article 5(5) in respect of decisions of magistrates' courts. They are Benham v United Kingdom[31] and Perks and others v United Kingdom.[32] Both were concerned with the requirement, in Article 5, that detention by order of a court must be "lawful" and "in accordance with a procedure prescribed by law".
(1) Benham v United Kingdom[33]
A.10 Mr Benham had been committed to prison for 30 days for failure to pay community charge. He was released on bail by the High Court 12 days later, and subsequently his appeal by case stated was allowed. As in R v Manchester City Magistrates' Court ex p Davies,[34] the relevant legislation required the court, before imposing a prison sentence, to conduct an inquiry as to whether the failure to pay was "due to his wilful refusal or culpable neglect".[35] The magistrates had found that although the appellant had no assets or income during the relevant period, he had the potential to earn money, and accordingly found him guilty of culpable neglect. In the Divisional Court it was held that this conclusion could not be sustained on the evidence, because -
before such a finding could be sustained, at the very least there would have to be clear evidence that gainful employment, for which he was fit, was on offer to the debtor and that he had rejected or refused that offer. There was no such evidence in this case.[36]
Furthermore, the Justices ought to have considered alternatives to prison.
A.11 Although Mr Benham's appeal was allowed, he had no claim under English law for damages, in the absence of evidence of bad faith. Accordingly he applied to Strasbourg, claiming that his detention was not "lawful" within the meaning of Article 5(1), and that the lack of a remedy in damages was contrary to Article 5(5). The Commission upheld his claim,[37] but the Court disagreed. The difference between the Commission and the Court turned not on the issues of principle, but on their application to the facts. The reasoning of the Court needs to be set out in full:
40. The main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.
41. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 (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.
42. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law.
43. It was agreed by those appearing before the Court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates' court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset.
It was further submitted that the appropriate test under English law for deciding whether or not the magistrates acted within their jurisdiction was laid down by the House of Lords in [Re McC (A Minor]. 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 failure to observe a statutory condition precedent.
44. ... Potts J in the Divisional Court found that the magistrates had carried out some inquiry as to whether B's failure to pay the community charge was due to his culpable neglect. However, he concluded that their finding of culpable neglect could not be sustained on the evidence available to them.
45. In the view of the Court, there are undoubtedly similarities between this decision and that of the Court of Appeal in Manchester City Magistrates' Court ex parte Davies, but there are also notable differences. In the latter case, the Court of Appeal held that the magistrates had failed altogether to carry out the inquiry required by law as to whether the debtor's failure to pay was the result of culpable neglect. In the instant case, however, the Divisional Court found that the magistrates had addressed themselves to this question, although their finding of culpable neglect could not be sustained on the available evidence.
46. Against the above background, it cannot be said with any degree of certainty that the judgment of the Divisional Court was to the effect that the magistrates acted in excess of jurisdiction within the meaning of English law. It follows that the Court does not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law. The mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention.
47. Nor does the Court find that the detention was arbitrary. It has not been suggested that the magistrates who ordered Mr Benham's detention acted in bad faith, nor that they neglected to attempt to apply the relevant legislation correctly [footnotes omitted].
A.12 A number of important points appear from this passage:-
(1) The question whether the detention is "lawful" is to be determined in accordance with national law, and, in the first instance, by the national courts.
(2) Detention pursuant to a court order may be "lawful", even if it is subsequently found on appeal that the court erred in fact or law. The issue of "lawfulness" under Article 5 is one of jurisdiction.
(3) In the context of English law, (apparently, following agreement between the parties) this issue was treated as equivalent to the issue of jurisdiction raised by the pre-1990 law on justices' immunity.
(4) The court felt able to distinguish R v Manchester City Magistrates' Court ex p Davies[38] on the basis that there the magistrates had "failed altogether" to carry out the inquiry required by law, whereas in the present case the magistrates had addressed that question but had reached a finding which could not be sustained on the evidence.
(5) The court did not purport itself to rule on the position under English law, but reached its conclusion on the basis that it had not been established "with any degree of certainty" that the English court had found an excess of jurisdiction under English law.
(2) Void/voidable
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.[39]
A.14 In the modern law of judicial review, such a clear-cut distinction is difficult to draw.[40] The current (7th) edition of Wade and Forsyth: Administrative Law (published in 1994)[41] refers to the distinction between void and voidable, as one which "could formerly be applied without difficulty" (emphasis added) to the distinction between action which is ultra vires and action which is liable to be quashed for error of law. They go on to discuss the changed position since "the House of Lords declared all error of law to be ultra vires."[42] They conclude:
The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the void order remains effective and is in reality valid.[43]
(3) Perks and others v United Kingdom[44]
A.17 The violations of Article 6, which related to the lack of legal advice or representation before the magistrates, are not directly relevant to the present issue. In only one case, that of Mr Perks himself, did the claim result in an award of damages. In that case, the judge had found that it was unlikely that the magistrates would have committed Mr Perks if they had known more about his personal circumstances, and it was accepted that a reasonably competent solicitor would have drawn the magistrates' attention to those circumstances. He had spent 6 days in detention. "On an equitable basis" the Strasbourg Court awarded £5,500 for non-pecuniary damage.[45] In the other cases it found "no basis to speculate" as to the outcome of the proceedings before the magistrates' courts, had there been legal representation; and it made no award.
A.18 In relation to the claim under Article 5, the Court repeated the statement of principle in the passage quoted above from Benham v United Kingdom,[46] including the references to Re McC (A Minor)[47] and R v Manchester City Magistrates Court ex p Davies.[48] It was noted that, under those cases, an inquiry into whether the non-payment was due to wilful refusal or culpable neglect was treated by the domestic courts as a condition precedent to their power to commit. The issue was whether the same could be said of the failures which had led to quashing of the decisions in the present cases.
A.19 For this purpose, the judgments of the High Court, quashing the individual decisions, were analysed in some detail. For example, in Perks itself, Harrison J had held that the justices had "failed to take into account a material consideration", because they had ignored evidence as to the applicant's health.[49] The Strasbourg Court commented -
... the magistrates' failure to enquire 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. ... 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.[50]
[T]he 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 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.[51]
A.21 The Strasbourg Court's overall conclusion was stated thus: 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.[52]
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.[53]
4 COMMENTARY
A.23 These two Strasbourg decisions show clearly the respect which was paid by that Court to the reasoning of the English judges in their judgments quashing the committal orders. Unfortunately, the Strasbourg Court's search in those judgments for a clear indication as to whether the errors were regarded as "jurisdictional" was probably mis-directed. There would have been no reason for the English court to decide any such question, nor to distinguish between the different heads under which the decision could be quashed on judicial review. The guidance in Re McC(A Minor)[54] was wholly irrelevant to the issues then before the English courts.
A.24 However, these issues are likely to arise for consideration by the domestic courts under the HRA in similar cases in the future.[55] The Strasbourg judgments no doubt will be seen as defining the basic concept. That is, that for an order of a court to be treated as "unlawful" for the purpose of Article 5, there must be a defect going to "jurisdiction"; and that this implies something more fundamental than an error of law, or even Wednesbury unreasonableness.
A.25 Re McC(A Minor)[56] represents authoritative guidance of the House of Lords on a similar issue in a similar context. It is easy to see, therefore, why it was relied on by the parties in Benham v United Kingdom.[57] One would expect it to be at least the starting-point for any discussion in the English courts. However, its specific adoption by the Strasbourg Court has to be seen as a reflection of their understanding, guided by the parties, of the position in English law, rather than as an independent determination of an issue of Convention law.
A.26 There is no difficulty about the first of Lord Bridge's categories - the "narrow and original sense". If justices are "not entitled to enter on the inquiry in question",[58] any order they make will be clearly "unlawful" in Convention terms.
A.27 Lord Bridge's second category - "gross and obvious irregularity" in procedure[59] - raises a question of overlap with Article 6 (right to fair trial). It is noteworthy that in Benham v United Kingdom[60] and Perks v United Kingdom,[61] the court kept the issues under Article 5 and Article 6 separate. Thus, although a breach of Article 6 was found in all cases, it was not held that this by itself constituted "unlawfulness" for the purpose of Article 5. This separation of the articles may be important in the context of the HRA. A breach of Article 6 would not be sufficient to provide a basis for a claim for damages in respect of judicial action. Such a claim is confined expressly by section 9(3) to what is required by Article 5(5). Thus, for example, it appears that the award made by the Strasbourg Court to Mr Perks the breach of Article 6 would not be made under the HRA.
A.28 It is likely to be seen as an issue of degree.[62] Lord Bridge envisaged that it would only be in extreme cases that a procedural breach would affect jurisdiction. There is a possible parallel in the approach of the Privy Council in Maharaj v Attorney-General of Trinidad and Tobago (No 2).[63] It was held that the judge had failed to observe -
a fundamental rule of natural justice; that a person accused of an offence should be told what he is said to have done plainly enough to give him an opportunity to put forward any explanation or excuse that he may wish to advance.[64]
This amounted to a contravention of his right, under section 1(a) of the Constitution of Trinidad and Tobago, not to be imprisoned other than "by due process of law", for which he was entitled to monetary "redress".[65]
A.29 The Privy Council, however, emphasised the limits of their decision -
... no mere irregularity in procedure is enough even though it goes to jurisdiction;[66] the error must amount to a failure to observe one of the fundamental rules of natural justice.[67] (Emphasis added)
A.30 It is more problematic to define the limits of Lord Bridge's third category, that of a determination which fails to provide "a proper foundation in law" for the order made. R v Manchester City Magistrates' Court ex p Davies[68] provides only limited assistance. The reasoning of the majority is not easy to reconcile with Lord Bridge's exposition.[69] Their view, as Sir Roger Ormrod observed,[70] makes it very difficult to distinguish this kind of error from the other traditional grounds of judicial review. In any event, the case does not purport to be more than an application of Re McC to its own rather unusual facts.
5 CONCLUSION
A.31 The purpose of this Appendix has been to highlight an important issue relating to the application of Article 5 to judicial acts. Because of the special exception, provided by section 9(3), to the general immunity for the courts from claims to damages, it is an issue which may have to be reconsidered in the domestic courts. They will not technically be bound by the reasoning of the House of Lords in Re McC, because the statutory context was different. However, its high authority and its effective adoption by the Strasbourg Court make it likely that it will in practice be followed. The first and second categories defined by Lord Bridge do not raise serious questions of principle. The boundaries of the third category are less clear-cut, particularly if regard is had to its application in R v Manchester City Magistrates' Court ex p Davies. However, it may properly be seen as confined to cases where there has been a total failure[71] to comply (rather than merely defective compliance) with a statutory condition upon which jurisdiction depends. On this basis, defective compliance with a statutory pre-condition may result in a committal order being quashed under domestic law, but will not make it unlawful for the purposes of Article 5(5), or give rise to a claim for damages under section 9(3).
Ü Þ
Note 2 Article 3 of the 7th Protocol (not so far included in the Convention rights under the HRA) has a separate provision for compensation for wrongful conviction. [Back] Note 4 R v Governor of H M Prison Brockhill ex p Evans, HL, unreported, 27 July 2000, per Lord Hobhouse citing Benham v United Kingdom 1996-III p 738, 22 EHRR 293 and Tsirlis and Kouloumpas v Greece 1997-III p 909, 25 EHRR 198. [Back] Note 5 The text of Article 5 is set out at para 6.27 above. [Back] Note 6 The most likely source of problems is the refusal of bail on grounds not falling within Article 5(1)(c): see Bail and the Human Rights Act 1998 (1999) Law Commission Consultation Paper No 157, Part IV. [Back] Note 7 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. [Back] Note 8 See paras A.12(2) and A.24 below. [Back] Note 9 See paras A.13 - A.14 below. [Back] Note 10 Although the Strasbourg case-law considered below is concerned specifically with England, it is likely that similar principles will apply in Scotland. Judicial immunity in Scotland, apart from the HRA, was equivalent to that in England prior to the Courts and Legal Services Act 1990: see per Lord Bridge, Re McC [1985] 1 AC 528, 547H. Judges of the higher courts and sheriffs, being responsible directly to the Crown, have always enjoyed absolute immunity for things done “in their judical capacity”: McCreadie v Thomson 1907 SC 1176, 1182. “Judicial capacity” is a wide term. An error of law, or even wholly unreasonable conduct, will not remove the immunity: see Russell v Dickson 1998 SLT 96, where the Sheriff’s immunity was not affected by his action in refusing bail, previously described by the High Court as “an excessive and unreasonable step” (Russell v Wilson 1994 SLT 660, 661). “Inferior” judges (such as justices in the District Court) formerly enjoyed only qualified immunity, being liable for acts in excess of jurisdiction, and malice: Summary Jurisdiction (Scotland) Act 1908 s 59. However, since 1995, potential liability for inferior judges is confined to cases where, in addition to the quashing of (for example) a sentence of imprisonment, “malice and want of probable cause are specifically averred and proved by the person suing”: Criminal Procedure (Scotland) Act 1995, s 170. [Back] Note 11 Courts and Legal Services Act 1990, s 108. Section 109 extends similar immunity to Northern Ireland. [Back] Note 12 Justice of the Peace Act 1979, s 44. However, the damages were limited to 1 penny, if inter alia the act, though in excess of jurisdiction, was nevertheless in execution of the magistrate’s office as a justice of the peace: ibid s 52. For a modern application of this difficult distinction see, for example, R v Waltham Forest Justices ex p Solanke [1986] QB 983. [Back] Note 15 [1985] AC 528, 536. [Back] Note 16 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Cf below note 20 and para A.14 n 42. [Back] Note 17 [1985] AC 528, 542-544, 546. [Back] Note 18 See R v Manchester City Magistrates’ Court ex p Davies [1989] 1 QB 631, 641 (CA). [Back] Note 19 Re McC (A Minor) [1985] AC 528, 546. This aspect of jurisdiction is usually referred to as “jurisdiction of the cause”. [Back] Note 20 [1985] AC 528, 546. In this respect, Lord Bridge stated that:
an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not [oust the justices’ jurisdiction]. Nor will the absence of any evidence to support a conviction… It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question.
[1985] AC 528, 546. This narrow approach can be contrasted with Lord Diplock’s wide interpretation in O’Reilly v Mackman [1983] 2 AC 237, 278 of the “breakthrough” made by Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 in recognising
that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported “determination”, not being “a determination” within the meaning of the empowering legislation, was accordingly a nullity.
[Back] Note 21 Re McC (A Minor) [1985] AC 528, 546-547. [Back] Note 22 [1985] AC 528, 549. Lord Bridge cited as a modern example of this category O’Connor v Isaacs [1956] 2 QB 288. In that case, the magistrates made an order against the claimant that depended on a finding of “persistent cruelty”, although they had expressly found the allegation of persistent cruelty not proved. They subsequently committed him to prison for non-compliance with the order. Subject to a limitation point, the claimant’s action for damages would have succeeded. [Back] Note 23 Re McC (A Minor) [1985] AC 528, 552. [Back] Note 25 General Rate Act 1967, s 103. [Back] Note 27 [1989] QB 631, 638 per O’Connor LJ. [Back] Note 28 [1989] QB 631, 643 per Neill LJ. [Back] Note 29 [1989] QB 631, 647. [Back] Note 30 [1989] QB 631, 649. See further para A.30 n 69 below. [Back] Note 31 1996-III p 738, 22 EHRR 293. [Back] Note 32 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33. [Back] Note 33 1996-III p 738, 22 EHRR 293. [Back] Note 35 Community Charges (Administration and Enforcement) Regulations 1989, SI 1989 No
438, reg 41(3). [Back] Note 36 R v Poole Justices ex p Benham [1991] 4 Admin LR 161, 167, per Potts J. [Back] Note 37 1996-III p 738, 22 EHRR 293, pp 304 - 318. [Back] Note 39 This paragraph refers back to a discussion of the same distinction earlier in the judgment (paragraph 24), although no source was given. Study of the papers before the court suggests that the most likely source for this statement was a reference in one of the submissions (prepared in May 1993), to the following passage in W Wade, Administrative Law (6th ed 1988) p 349:
‘Void or voidable’ is a distinction which applies naturally and without difficulty to the basic distinction between action which is ultra vires and action which is liable to be quashed for error on the face of the record.Action which is ultra vires is unauthorised by law, outside jurisdiction, null and void, and of no legal effect. But an order vitiated by error on its face is ... intra vires and within jurisdiction, but liable to be quashed ... An order which is merely voidable ... has legal effect up to the time when it is quashed, and in respect of that period it remains a valid order even after being quashed. (Emphasis added)
In R v Governor of HM Prison Brockhill ex p Evans, HL, unreported, 27 July 2000, Lord Hobhouse (obiter) adopted a similar distinction, when he referred to Benham as illustrating “The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside”. However, establishing the precise dividing line in relation to judicial orders was not an issue in that case. [Back] Note 40 A similar distinction has survived (not without difficulty) in the law ofhabeas corpus: see R v Home Secretary ex p Cheblak [1991] 1 WLR 890, 894 per Lord Donaldson MR. This “narrow view” was strongly criticised by the Law Commission as out of line with Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 in Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226, paras 11.14 - 11.16; but has since been re-affirmed, in the face of those criticisms: see R v Oldham Justices ex p Cawley [1996] 1 All ER 464, 478 per Simon Brown LJ. The Bowman Committee, of which Simon Brown LJ was a member, treated the law as settled, but recommended that habeas corpus should now be “subsumed” within the more flexible procedure of judicial review: Review of the Crown Office List: A List to the Lord Chancellor (March 2000), Appendix B, section 26 and Appendix G. [Back] Note 41 See W Wade and C Forsyth Administrative Law (7th Ed 1994) p 340. [Back] Note 42 W Wade and C Forsyth Administrative Law (7th Ed 1994) pp 340-344. The immediate stimulus for the change in the text seems to have been R v Hull University Visitor ex p Page [1993] AC 682, affirming the widest interpretation of Anisminic Ltd v Foreign Compensation Commission case [1969] 2 AC 147. [Back] Note 43 W Wade and C Forsyth Administrative Law (7th Ed 1994) p 342 - 343. [Back] Note 44 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33. [Back] Note 45 As to how the figure may have been was arrived at, see the reference to this case in Part 3 para 3.10 note 15 above. [Back] Note 46 1996-III p 738, 22 EHRR 293. [Back] Note 49 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33 at para 15. [Back] Note 50 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33 para 64. [Back] Note 51 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33 para 67. [Back] Note 52 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33, para 68. [Back] Note 53 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33, para 70. [Back] Note 55 It is understood that the new Rules under s 7 of the HRA will include a Practice Direction for the court in such a case to make a specific finding whether the Convention rights have been infringed. [Back] Note 57 1996-III p 738, 22 EHRR 293. [Back] Note 58 See for example R v Waltham Forest Justices ex p Solanke [1986] QB 983, where the claimant was imprisoned by magistrates for default under a High Court maintenance order; but the magistrates had no jurisdiction because the order had not been registered in the magistrates’ court. (Damages were, however, limited to 1 penny, under Justices of the Peace Act 1979 s 52: see para A.4 n 12 above). [Back] Note 59 It has been suggested that the irregularities must be “such as to strike at the very root of the judicial process rendering the trial little more than a ‘sham’”: See Clerk & Lindsell on Torts (17th Ed 1995) para 16-12. [Back] Note 60 1996-III p 738, 22 EHRR 293. [Back] Note 61 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33. [Back] Note 62 The Strasbourg Court itself appears to recognise differences of degree in the application of Article 6. In Drozd and Janousek v France and Spain A 240 (1992), 14 EHRR 745, para 110, the Court indicated that a Contracting State should refuse to extradite a person in any case where the underlying criminal conviction resulted from “a flagrant denial of justice” violating Article 6 of the Convention. [Back] Note 63 Maharaj v A-G of Trinidad and Tobago [1979] AC 385 See Part IV paras 4.16 - 4.18 above. [Back] Note 64 Ibid at p 391D. [Back] Note 65 Constitution of Trindad and Tobago of 1962, s 6(1). [Back] Note 66 This reference to “jurisdiction” may be seen as another example of “the many different shades of meaning” of that word (see per Lord Bridge para A.5 above), rather than as throwing any doubt on the first of Lord Bridge’s categories. [Back] Note 67 [1979] AC 385, 399. [Back] Note 69 O’Connor LJ, relying on Lord Bridge’s description of the error in Re McC (A Minor) (see para A.6 above), treated it as non-fulfilment of “a statutory condition precedent... essential to the imposition of a sentence of imprisonment...” (p 638G). However, this seems overlook the fact that in Re McC(A Minor), as in O’Connor v Isaacs[1956] 2 QB 288 (see para A.5 n 22 above), there was a total failure to observe the condition precedent. InR v Manchester City Magistrates’ Court, ex p Davies, as Neill LJ, as well as Sir Roger Ormrod (dissenting), appeared to accept, the magistrates’ error was in substance simply to have asked themselves the wrong question in law, a form of error which, inMcC , was not treated as going to jurisdiction (see para A.5 note 20 above). [Back] Note 70 [1989] QB 631, 651. [Back] Note 71 As the Strasbourg Court interpretedR v Manchester City Magistrates’ Court, ex p Davies:
see para A.12(4) above. [Back]
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