CASE OF LLOYD AND OTHERS v. THE UNITED KINGDOM

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

Josep Casadevall;Nicolas Bratza;Simon Brown

Each applicant failed to pay sums due in respect of either local taxes (community charge, council tax or non-domestic rates) or court-imposed fines. In respect of the failure to pay local taxes, the magistrates’ court had in each case determined that the applicant was liable to pay (issuing a “liability order”); in fines cases, the magistrates’ court had imposed the fine as the sentence following a criminal conviction.

Each applicant fell into arrears with the payments due from them. These cases involve the enforcement proceedings in respect of their arrears in the magistrates’ court. Each applicant appeared before the court, following the issuing of an application for their committal to prison as a result of their failure to pay the sums due. At that hearing the magistrates found that the non-payment was due to the applicant’s wilful refusal or culpable neglect. As a result each applicant was sentenced to a period of imprisonment. The sentence was either imposed immediately (G.M., 34341/96) or was suspended on terms that the applicant make periodic payments towards the outstanding sum. In the latter circumstances, when the applicant failed to comply with the terms imposed, a further hearing was held in the magistrates’ court at which the suspended term of imprisonment was activated. Each applicant spent a period of time in prison. Legal aid (free legal representation where the applicant did not have sufficient means to pay for it) was not available for these enforcement proceedings prior to 1 June 1997 and none of the applicants was legally represented at the hearings in front of the magistrates.

Following their imprisonment, an application was made on behalf of each applicant, by way of either judicial review or case stated, which resulted in the High Court quashing the orders made by the magistrates. The majority of the applicants were released from prison on bail at the time of making their applications to the High Court. In three cases the orders of the magistrates were quashed in a judgment of the High Court. In the remaining cases the orders were quashed following the High Court’s approval of a consent order agreed between the applicants and the magistrates who had sentenced them.

With one exception (Christison, 56429/00), the Court has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility (Lloyd and Others v. the United Kingdom, no. 29798/96 and others, decision of 21 October 2003). That table sets out the following information in respect of each applicant: their name and application number; whether their case involved non-payment of community charge (“CC”), council tax (“CT”), non-domestic rates (“NDR”) or fines (“F”) and the number of days which they spent in prison; whether their proceedings in the magistrates’ court took place before or after legal aid became available on 1 June 1997; and the grounds upon which the High Court quashed the orders of the magistrates. Additional relevant factual information appears in this column of the table where appropriate.

Where the orders of the magistrates were quashed following a judgment, the Court has indicated that fact in the table and quoted from the relevant part of the judgment. Where the orders of the magistrates were quashed by means of a consent order, the Court has set out the terms of the consent order in full. In such cases, where the terms agreed contain obvious mistakes or misquotations from domestic case-law, the Court has inserted corrections in square brackets. However, where it is not obvious what the relevant correction should be, the Court has simply left the order in its original form.

Throughout the text of this judgment, where there is a reference to a specific applicant, the Court has set out the surname of the applicant followed by their application number in brackets. The words “justices” and “magistrates” are synonymous in domestic law.

For reasons of space, the Court sets out the facts of the Christison (56429/00) application below.

This applicant’s application for judicial review was determined by the judgment of Mr Justice Collins in R. v. Doncaster Justices ex parte Christison and Jack (13 May 1999). It is clear from that judgment that the applicant was summoned to court as a result of her failure to pay council tax. On 21 January 1998, the justices, having neither received any evidence about, nor asked any questions about, the financial outgoings of the applicant, found her to have culpably neglected to pay the council tax and made an order imposing 28 days’ imprisonment suspended on payment of 8 pounds sterling (GBP) per month.

The applicant did not make the payments in compliance with the magistrates’ order of 21 January 1998. She was therefore summoned to appear on 1 June 1998 for the magistrates’ court to determine whether the warrant of committal should be issued. The justices were told by the prosecutor that the applicant had been served with the notice of the hearing three weeks prior to the hearing. They proceeded in her absence and issued the committal warrant. She spent a total of two days in prison.

The order of 21 January 1998 was quashed by Mr Justice Collins on the following ground:

“[N]o proper means enquiry was carried out ... The Justices accept that there was no proper means enquiry and, therefore, the order is going to be quashed. ...

... Justices probably carry out means enquiries every day. They must know, and if they do not, their clerks should advise them, what ought to be asked and what information ought to be obtained. They failed to do that in [this] case.”

The order of 1 June 1998 was quashed by Mr Justice Collins for the following reasons:

“... Anyway, the applicant did not pay as she should have done and she also was summoned to appear on 1st June. ... [the bailiffs] had served three weeks or so before. Although the evidence of that has now been produced ... it is somewhat unsatisfactory because the bailiff’s handwritten note does not make it clear whom they actually served. I am prepared (because it does not make any difference to the outcome) to assume that she was served, and the Justices again were told, although no evidence was produced, that bailiffs has served her some three weeks before ...

The time has come to try to make it abundantly clear to Justices that, in the view of this court, it is difficult to conceive that there will be circumstances which justify the making of a committal order when the defendant fails to appear before the court. It means that the Justices are unable to ascertain whether there are, in truth, reasons why payment has not been made which might excuse such payment, and furthermore, reasons why in an individual case it would be wrong to send the person immediately to prison. Alternatively, it might be proper to reduce the period of imprisonment that is considered appropriate, if any is considered appropriate. It may transpire that by the time that the question of implementing the suspended committal order is considered, the circumstances of the defendant have changed. Whereas before she might have been able to pay perhaps, through illness or whatever reason, by now she cannot. Thus, it would be wrong to commit her. Committal, I must re-emphasise, can only occur if the Justices are satisfied that there is a continuing wilful refusal or culpable neglect.

The Justices have a perfectly sensible and powerful weapon available to them to deal with cases where a defendant does not attend, and that is a Warrant Not Backed for Bail. That is the means by which a person can be brought before the court and made to explain why he or she has not paid. Then the Justices will have the proper information before them to enable them to decide whether the committal is indeed correct. I cannot emphasise strongly enough my view that Justices should not, unless there are very exceptional circumstances (such as positive evidence that a defendant is refusing to attend and has expressed an unwillingness to comply with the court order) commit to prison in the absence of a defendant. ...

It is true that in these cases, the Justices were told that service had been effected, but service some three weeks before is nothing to the point. Much can happen in that time ... Furthermore, there was no evidence put before the Justices to support the contention that service had been effected, and for my part I do not think it right, when someone’s liberty is at stake, for Justices to rely upon the word of the prosecutor unsupported by any evidence.

A civil court which commits for contempt, which may be contempt occasioned by failure to comply with a court order, requires proof of service and that is usually done by a bailiff or whoever, indicating that service has been effected. It seems to me that it is quite wrong that Justices should put up with a lesser standard than that.”

Mr Justice Collins also awarded costs against the justices on the following basis:

“It is unusual for costs to be awarded against Justices who do not attend applications against them for judicial review. The principle which is applied has recently been referred to by Latham J in R. v. Newcastle-upon-Tyne Justices ex parte Devine (1998) RA 97. At page 104 of the report, the learned judge refers to a decision of the Divisional Court, R. v. York City Justices ex parte Farmery 153 JP 257, the head note of which reads:

‘... the court would be guided by the principles set out in R. v. Willesden Justices, ex parte Roberts (1960) 124 JP 336 wherein it was decided respectively: (i) that costs would only be awarded against Justices in the rarest of circumstances when they have done something which calls for strong disapproval; and (ii) that it was the practice not to grant costs against Justices merely because they have made a mistake in law, but only if they have acted perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.’ ...

... In [this] case the committal took place in the absence of the defendant.

This court has made it clear that Justices must be satisfied, at the very least, that there has been proper service, and, as I have said, I find it very difficult to conceive of circumstances which would justify a committal in the absence of a defendant. Thus it seems to me that the conduct of these Justices can properly be said to fall within the description that I have set out and which is referred to in the Newcastle case by Latham J.”

By virtue of section 111 of the Magistrates’ Courts 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.

According to Halsbury’s Laws of England, Fourth Edition, Volume 1(1) at paragraph 59:

“Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties ...

Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself ...

The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers.”

The principles underlying the domestic law as set out under this heading are largely as previously stated in the case-law of the Convention organs, in particular in the judgments of the Court in the cases of Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 738 (“Benham”), and Perks and Others v. the United Kingdom, no. 25277/94 and Others, 12 October 1999 (“Perks”), as confirmed in Lloyd and Others v. the United Kingdom, no. 29798/96 and others, decision on admissibility of 21 October 2003.

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 below).

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 [1984] 3 All England Reports 908. 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 had 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 magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction, the House of Lords was required to decide the jurisdictional question. Indeed, Lord Templeman in his judgment stated as follows:

“The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction.”

In addressing that question, Lord Bridge specifically referred to the case of Anisminic Ltd. v. the Foreign Compensation Commisison [1969] 2 Appeal Cases 147 (HL) and stated as follows:

“I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case, ... however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of s[ection] 15 of the 1964 Northern Ireland Act or s[ection] 45 of the 1979 [Justices of the Peace] Act.”

In the judgment of the House of Lords, it was held that a magistrates’ court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent. The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15(1) of the 1976 Order. As such, they had failed to fulfil the statutory condition precedent to the imposition of the sentence of detention.

During the course of his judgment, Lord Bridge commented 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 law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction ...”

Lord Bridge also said the following in relation to the second situation set out above in which a magistrates’ court acted in excess of jurisdiction:

“Justices would, of course, be acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s[ection] 15 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. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages.”

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 Queen’s Bench Division and the Court of Appeal in R. v. Manchester City Magistrates’ Court, ex parte Davies [1988] 1 W.L.R. 667 and [1989] 1 All England Reports 90, a case concerning rates (a local tax which was the predecessor to the community charge). Mr Justice Simon Brown considered that the justice’s plain failure to address themselves to the question whether or not the applicant’s failure was due to culpable neglect was not a gross and obvious irregularity but a failure to satisfy the statutory condition.

In that case, 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 (for which, see below), the magistrates found that his failure to follow the accountant’s advice constituted culpable neglect and they committed him to prison. On appeal from the judgment of Mr Justice Simon Brown, the Court of Appeal held that no causal connection had been established between the failure to follow the 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, which was required by the legislation as a statutory condition precedent to the exercise by the justices of their power to issue a 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 failure to pay was due to culpable neglect ... In my judgment, the statutory inquiry was not held in the present case”. He explained that the making of an enquiry was a statutory condition precedent to the issue of a warrant of commitment: “In other words, if the justices failed to hold any inquiry at all as required by the section they would have no jurisdiction to issue a warrant.” 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’ ”.

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 3 months, unless the amount stated in the warrant is sooner paid ... .”

Regulation 42 makes further provision in respect of committal to prison. It provides, in relevant part, as follows:

“(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 mentioned in regulation 39(2) with respect 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 (except so far as regards any sum remitted under paragraph (2)) on the ground that the circumstances of the debtor have changed.”

Regulations 47 and 48 of the Council Tax (Administration and Enforcement) Regulations 1992 (Statutory Instrument 1992/613) and regulations 16 and 17 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (Statutory Instrument 1989/1058), which concern the commitment to prison of a person for failure to pay council tax and non-domestic rates respectively, are in similar terms to regulations 41 and 42 of the 1989 Regulations.

Sections 77(2) and 82 of the Magistrates’ Courts Act 1980 read, in relevant part, as follows:

“77. Postponement of issue of warrant.

(2) Where a magistrates’ court has power to issue a warrant of commitment under this Part of this Act, it may, if it thinks it expedient to do so, 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.”

“82. Restriction on power to impose imprisonment for default

(3) Where on the occasion of the offender’s conviction a magistrates’ court does not issue a warrant of commitment for a default in paying any ... sum [adjudged to be paid following conviction] ... or fix a term of imprisonment under ... section 77(2) which is to be served by him in the event of any such default, it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless - (...)

(b) The court has since the conviction inquired into his means in his presence on at least one occasion.

(4) Where a magistrates’ court is required by subsection (3) above to inquire into a person’s means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless -

(b) The court

(i) is satisfied that the default is due to the offender’s wilful refusal or culpable neglect; and

(ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.”

Section 82(4A) lists the methods of enforcing payment that are mentioned in the above-cited subsection 82(4)(b)(ii). One such method that is listed in section 82(4A) is the imposition of a ‘fines supervision order’ under section 88 of the Magistrates’ Courts Act. Section 82 continues:

“(5) After the occasion of an offender’s conviction by a magistrates’ court, the court shall not, unless -

the court has previously fixed a term of imprisonment under section 77(2) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction;

issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present.

(5A) A magistrates’ court may not issue a warrant of commitment under subsection (5) above at a hearing at which the offender is not present unless the clerk of the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends. ...

(5F) A notice under subsection (5A) above to be served on any person shall be deemed to be served on that person if it is sent by registered post or the recorded delivery service addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person.

(6) Where a magistrates’ court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground, in the warrant.”

Part I of the Criminal Justice Act 1982 sets out provisions in relation to the custody and detention of persons under 21 years of age. Section 1 reads, in relevant part, as follows:

“1. General restriction on custodial sentences

(5) No court shall commit a person under 21 years of age to be detained under section 9 below [Detention of persons aged 18-20 for default or contempt] unless it is of the opinion that no other method of dealing with him is appropriate; (...)

(5A) Where a magistrates’ court commits a person under 21 years of age to be detained under section 9 below, it shall -

(a) state in open court the reason for its opinion that no other method of dealing with him is appropriate; and

(b) cause that reason to be specified in the warrant of commitment and to be entered in the register.”

Section 3 of the Criminal Justice Act 1982 reads, in relevant part, as follows:

“3. Restriction on imposing custodial sentences on persons under 21 not legally represented.

(1) A magistrates’ court on summary conviction or the Crown Court on committal for sentence or on conviction on indictment shall not –

(a) pass a sentence of detention in a young offender institution ...

in respect of or on a person who is not legally represented in that court, unless either –

(i) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or

(ii) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.”

Regulation 42(7) of the 1989 Regulations states that the above sections of the Criminal Justice Act 1982 apply to proceedings under regulation 41 of the 1989 Regulations.

Among the further case-law referred to in the judgments and consent orders of the High Court, and/or referred to by the parties in their submissions, was the following:

In R. v. Hyndburn Justices ex parte Derrick Long (18 October 1993), Mr Justice Schiemann stated as follows in a case concerning the non-payment of the community charge:

“ ... It is important when dealing with the liberty of citizens only to set in train the process of imprisonment when all the requirements imposed by law have been carefully considered. It is important to note that, in this field as in the case of suspended sentences of imprisonment imposed pursuant to the criminal law, the same degree of care must be exercised in the case of a suspended penalty as in the case of an immediate penalty.”

In R. v. Woking Justices ex parte Johnstone [1942] 2 King’s Bench 248, the Divisional Court, in examining legislation in similar terms to the 1989 Regulations, emphasised that, in order to commit to prison, the justices, following their inquiry, had to be of the opinion that the failure to pay was due either to wilful refusal or culpable neglect.

In R. v. Stafford Justices ex parte Shaun Thomas Johnson (16 March 1995) Mr Justice Laws stated as follows:

“ ... The means inquiry required by regulation 41(2) is of great importance because without it the Justices plainly cannot properly arrive at a conclusion as to whether the failure to pay had been due to the debtor’s wilful refusal or culpable neglect. A means inquiry, thus, is at the centre of the enforcement procedure which is laid down by these Regulations. These Justices did not, in truth, embark upon a proper means inquiry at all. It follows that their order committing the applicant to prison is entirely vitiated.”

In Meara v. DPP (25 November 1998), a case involving the non-payment of fines, Lord Justice Rose stated that:

“... an essential prerequisite to a finding of culpable neglect must be the holding of a full means inquiry”.

In R. (on the application of Davies) v. Hereford Justices (4 March 2004), the judge noted that although the means enquiry was inadequate it was miles away from being arguable that the magistrates’ consideration was “so outrageous as to amount to a conduct outwith their jurisdiction”.

In R. v. Leeds Justices ex parte Kennett [1996] Rating and Valuation Reporter (“RVR”) 53, an order committing the applicant to prison for non-payment of community charge following the issue of three liability orders in respect of non-payment for the years 1990-91, 1991-92 and 1992-93 was quashed as a full means inquiry in respect of each liability order had not been made under regulation 41(2) of the 1989 Regulations. Mr Justice Owen stated as follows during the course of his judgment:

“It is apparent from the wording of the Regulations that each liability order is to be considered separately and in respect of each liability order there has to be, as I see it, a decision as to whether there was wilful refusal or culpable neglect shown.”

The above conclusion was followed by Mr Justice Dyson in R. v. Durham City Justices ex parte Fleming [1997] RVR 244 at 246; by Mr Justice Keene in R. v. Gloucestershire Justices ex parte Daldry [2001] RVR 242 at 243; and by Mr Justice Gage in R. v. Sheffield Justices ex parte Broadhurst [2001] RVR 245 at 246.

In R. v. South Tyneside Justices ex parte Stuart Daniel Martin (31 July 1995), Mr Justice Sedley stated the following in respect of the burden of proof:

“... It is necessary in my judgment for Justices to be satisfied not merely on the balance of probability but so that they are sure, following a proper means inquiry, that the debtor’s failure to pay has been due to his or her wilful refusal or culpable neglect to pay, before they can issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant. ...

If I am wrong in this, and if the proper standard is a civil standard, what is at stake for the individual makes it inescapable that only the highest standard of probability is commensurate with the exercise of the power of committal or of fixing a term of imprisonment.

The Justices, on advice, applied neither such standard.

In my judgment a bare balance of probability is not a sufficient standard and their decisions of 6th April 1993 and 27th July 1993 to fix terms of imprisonment and postpone the issue of warrants of committal on grounds of culpable neglect cannot therefore stand.”

Mr Justice Sedley concluded as follows:

“... To be open to criticism for the disposal of slender resources is one thing; to be guilty of culpable neglect in the disposal of them is another.

In my judgment the first fixing of the term of imprisonment and the postponement of the warrant were done after a means inquiry too perfunctory to constitute compliance with Regulation 41(2). The fixing of a separate term of imprisonment and the postponement of the warrant in July 1993, although it followed a much fuller inquiry, was again carried out on the basis of data which were not capable by themselves of founding a finding of culpable neglect to pay, whether on the lower standard of proof that was applied or on the higher standard which, as I have held, ought to have been applied.

Accordingly the applicant succeeds in his application to quash both decisions of the Justices”.

In the case of R. v. Mid Herts Justices ex parte Cox (19 October 1995) Mr Justice Laws expressly agreed with what Mr Justice Sedley had said in relation to the burden of proof in the above Martin case.

In R. v. the Alfreton Magistrates ex parte Darren Gratton (25 November 1993) the magistrates had come to the conclusion that they could not consider attaching the applicant’s liability to pay his community charge to his income support as a viable alternative to prison. Mr Justice MacPherson held that, in so concluding, the magistrates were “plainly wrong” and that, as such, there was a “fundamental flaw” in the case. In considering whether to order costs against the magistrates, he concluded:

“I am wholly unable to find that there has been any perverse or outrageous conduct of any kind in this case. These are tricky cases. The law has been evolving in the last year or so.”

He continued:

“... Community charge liability should only be visited with prison (if I may use that shorthand expression) if there is no other way in which the money can be extracted. Prison is not to be used as a big stick or primarily as punishment but as a means of extracting the liability.”

Mr Justice MacPherson stated that there may also have been a flaw in the case because the applicant was under 21 years of age at the time at which he was sentenced and the magistrates did not fulfil their requirement publicly to state that there was no alternative but prison in this case. However, he regarded it as unnecessary to conclude the case on that ground in the light of his earlier finding.

Lord Justice Kennedy stated in R. v. Wolverhampton Magistrates’ Court, ex parte Mould [1992] 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 [1995] 1 All ER 120, 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. Middleton Magistrates ex parte Phillips (29 October 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 a 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 £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.”

R. v. Norwich Magistrates’ Court ex parte Lilly [1987] 151 JP 689 concerned an applicant who was committed to prison after having failed to pay two court-imposed fines. The Divisional Court held that a magistrates’ court having inquired into an offender’s means under section 82(3)(b) of the Magistrates’ Courts Act 1980 and satisfied itself that the default in payment was due to his wilful refusal or culpable neglect, was under a duty imposed by section 82(4)(b)(ii) to consider or try all other methods of enforcing payment before issuing a warrant of commitment. In the current case, it held that, on the evidence available, that duty had not been fulfilled and accordingly the application was granted and the two committal warrants were quashed.

During the course of his judgment, Mr Justice Farquharson stated as follows in relation to section 82(4)(b)(ii):

“... The words of the subsection are peremptory. There is no discretion in the court, they have either to consider or try all the other methods of enforcing payment.”

He continued:

“... It needs to be emphasised that the proceedings which were taking place on September 9 before the Norwich Justices were not proceedings intended to punish the applicant. He had already been before the court for the offences that he had committed and the Justices on those occasions had decided that a fine was an appropriate sentence to pass. When the time came for enforcement, therefore, it was necessary for the Justices to go through the judicial exercise of seeing if there was any other method of enforcing payment of the fine, short of committing the applicant to prison, and that necessarily included a procedure whereby he was examined as to what property or other earnings or income he might have. It is not to be assumed merely on their experience of other cases by the Justices that the proceeding is a formality or unnecessary.”

In R. v. Newcastle Justices ex parte John Ashley (12 October 1993), the fact that the applicant was under 21 at the time of his committal in respect of failure to pay community charge was accepted by the court to be the “major point” in the case. Mr Justice Laws, in quashing the committal order, concluded that the justices’ decision to commit had been unlawful in that they had failed to have regard to their statutory responsibilities in the case under regulation 42(7) of the 1989 Regulations and Part I of the Criminal Justice Act 1982. He noted that the power to imprison a person under the age of 21 was only to be exercised if the court was of the opinion that no other method of dealing with him was appropriate and that it was the duty of the court, if of that opinion, to state in open court why the court believed that to be the case. He further noted that the magistrates had failed to state in open court why they believed that no alternative to imprisonment was available, that there was no evidence to show that the magistrates in fact felt that no other method was appropriate, or the reasons why they might so have felt; and that it was quite clear that alternatives to imprisonment had been available to them. During the course of his judgment, Mr Justice Laws stated that the complaint made in respect of the decision to commit “went to an important aspect of the magistrates’ court’s jurisdiction under regulation 41 [of the 1989 Regulations]”.

In R. v. Oldham Justices and Another ex parte Cawley [1997] Queen’s Bench 1, each of three applicants, who were under 21 years of age, had defaulted in paying fines arising from summary criminal convictions and had been committed to prison. In each case the warrant of commitment was defective in failing to comply with the duty imposed by section 88(5) of the Magistrates’ Courts Act 1980 to describe the justices’ grounds for not placing an applicant of less than 21 years of age under supervision; and in failing to state the reason why no other method of dealing with such an applicant other than imprisonment was appropriate, contrary to section 1(5A) of the Criminal Justice Act 1982. In the first two cases, the warrants also failed to specify upon what ground they were issued, contrary to section 82(6) of the Magistrates’ Courts Act 1980 (which applied to both young and adult offenders). The Divisional Court held that a warrant of commitment which was defective for failure to comply with the requirements of sections 82(6) or 88(5) of the Magistrates’ Courts Act 1980, or section 1(5A) of the Criminal Justice Act 1982, was not void, and detention under it was not unlawful, unless and until the warrant was quashed.

The cases below concern the situation where the applicant was present at the hearing inquiring into his means and circumstances and fixing a postponed sentence of imprisonment, but was absent from the subsequent hearing at which the warrant of commitment was issued (i.e. ordered to take effect, resulting in the immediate imposition of the previously postponed order of imprisonment).

In R. v. Northampton Magistrates’ Court ex parte Newell [1992] RA 283 the Court of Appeal had to determine whether the magistrates were entitled under regulation 41 of the 1989 Regulations to issue a warrant of commitment against a charge payer who was absent from the final hearing at which the warrant was issued.

At first instance [1992] 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 which led to the liability order being made 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 [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 a 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.

Therefore it seems to me ... that natural justice requires notification to the applicant of that hearing.”

The above conclusion was approved by the Master of the Rolls, Lord Donaldson, in the Court of Appeal.

Lord Justice Scott concluded as follows:

“In this context, it goes without saying that it would be essential in, I would think, every case that the debtor be given proper notice of the time and place of the proposed application. If that were not done, the hearing would, I think, be fatally flawed. It is to be expected that, if the debtor were not present, the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor. But if a debtor, having received proper notice, chooses not to attend the hearing, that is his affair, and for the magistrates to proceed in his absence cannot, in my opinion, possibly be represented as being in breach of the requirements of fairness or of natural justice.”

In R. v. Faversham and Sittingbourne Magistrates’ Court ex parte Ursell [1992] RA 99, Mr Justice Schiemann stated as follows in considering both the nature of the hearing at which the warrant of commitment was issued and the significance of the applicant not having notice of it:

“The magistrates in the present case appear to have accepted that a second hearing was necessary before the warrant of commitment was issued. They were right to do so. They did not apparently, however, consider that it was necessary for the debtor to have notice of the date and time of such a hearing. They clearly thought that she would have nothing new to say. They might well be right, but she is entitled, in my judgment, to be told of the date and time of the hearing as a matter of natural justice. The hearing affects her. It is held in public. She should have the right to be there. I do not, however, accept Mr Emmerson’s submission that the hearing cannot proceed if she chooses not to attend.

The question arises: on what matter is a debtor entitled to address a 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 of circumstances since the decision to fix a term of imprisonment which renders it inexpedient for the warrant of commitment to issue. There must, in my judgment, 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.”

In R. v. Hyndburn Justices ex parte Woolaghan (2 December 1994), Mr Justice Jowitt held that, in the absence of sufficient proof of service of notice of the hearing at which the warrant of commitment was issued, the applicant was entitled to succeed on his application for judicial review. Mr Justice Jowitt stated as follows:

“The difficulty, though, for the magistrates is, that when there is no appearance before them, they really have no way of telling whether this may be one of those, no doubt, not over frequent cases in which a letter has miscarried for one reason or another, perhaps because it has not been delivered or because the charge payer is absent for a continuing period from home, or because, in premises with a number of separate occupiers, a letter has got into the wrong hands. It seems, therefore, to follow that where there has been service by ordinary post, careful consideration would have to be given to the particular circumstances of the charge payer, before, if ever, concluding that the notice must have come into his hands.”

In R. v. Newcastle-upon-Tyne Justices ex parte Devine [1998] RA 97, in which notice of the final hearing had been sent by the magistrates’ court to the applicant’s last known address, but was never received by the applicant as he had moved address and therefore did not appear at the hearing, Mr Justice Latham quoted the above-cited passage of Mr Justice Jowitt in Woolaghan and stated that the magistrates in the present case did not appear to have heeded it. This was notwithstanding that they had previously consented to an order being quashed because they had failed to carry out the appropriate inquiry to make sure that the notice of the final hearing must have come into the charge payer’s hands. Mr Justice Latham referred to the fact that the magistrates knew that the applicant was intermittently unwell and therefore should also have enquired to ensure that the applicant was not suffering from one of his periodic illnesses at the time of the hearing. In all the circumstances he concluded that “the magistrates were quite wrong to issue a warrant of committal in his absence” and that their decision to do so was “vitiated”.

In deciding to award costs against the justices, Mr Justice Latham cited and applied what he had said in a previous case in which magistrates had on two separate occasions fallen into the identical error of failing to make appropriate inquiry as to whether or not notice of the final hearing had been received by the applicant:

“That seems to me to be behaviour which calls for strong disapproval, and because the principle which has apparently been ignored is one which involves the elementary step of ensuring that the person who is liable to lose his liberty has had an opportunity of knowing that the court was considering that particular course on that particular day, it is also a disregard for an elementary principle which every court ought to obey.”

In R. v. Doncaster Justices ex parte Hannan (16 July 1998) (a case concerning the non-payment of a court-imposed fine, unlike the previous cases in this section which all concerned the non-payment of community charge), Lord Justice Rose in the Divisional Court held as follows:

“[Counsel for the applicant] submits that to issue the Warrant for Commitment, with the knowledge which the Justices had [that she had not received notice of the hearing because that notice had been returned to the Justices marked “address inaccessible” was an act of judicial impropriety and one which can properly be characterised a]s being perverse in that no reasonable bench of Justices would so have acted. ...

... I am entirely satisfied that the submissions of [counsel for the applicant] advanced to this court are well-founded. This case illustrates how unwise it may be for Justices to make an order committing someone to prison when they do not know, because that person is not before them and because that person does not know of the date of the hearing, what the up-to-date circumstances are. It seems to me that, knowing that the applicant had not been served with notice of the proceedings, the Justices ought, much more prudently, to have adjourned the question of whether or not a Warrant of Commitment should be issued until such time as she had been served with notice of the proceedings.

... I am satisfied that, in issuing the warrant in the circumstances in which they did, the Justices did act perversely ...”

The case of R. v. Doncaster Justices ex parte Christison and Jack (13 May 1999

The applicable principles are set out in the above-cited ex parte Christison and Jack

In R. v. the Governor of Brockhill Prison, ex parte Evans (No. 2) [2000] 4 All England Reports 15, the House of Lords held that where the executive had detained a person unlawfully, that person was entitled to recover compensation for the tort of false imprisonment. In that case, the responsibility for calculating the date on which the respondent was to be released from prison lay with the Governor of the prison. He had calculated her date of release to be 18 November 1996. However, accepting her arguments on judicial review, the Divisional Court held that the release date should actually have been 17 September 1996. On appeal to the House of Lords, the Governor accepted that the respondent’s continued detention after 17 September 1996 had therefore been unlawful. Nevertheless, he contended that he could not be liable for false imprisonment since he had complied with the law as it was understood at the time of his decision. The House of Lords held that the tort of false imprisonment was one of strict liability and that its consequences could not be escaped even by showing that the Governor had acted in accordance with the view of the law which at the time was accepted by the court to be correct. There was no lawful justification for the action of the Governor, as the responsibility for calculating the release date lay with him, and not with the order of the court that sentenced the respondent to prison. The respondent was therefore entitled to compensation as it was agreed that her detention after 17 September 1996 was unlawful.

During the course of his judgment, Lord Hope stated that, as he had decided in her favour on other grounds, it was not necessary for the respondent to rely on her additional argument that the position of the Governor had been contrary to Article 5 of the Convention. However, he stated that as the issues that had arisen in the case had raised a novel point of law of some difficulty, it was of interest to see whether the provisions of Article 5 of the Convention supported the conclusion which he had determined to represent the present state of the domestic law. In the course of this consideration, Lord Hope stated the following:

“The jurisprudence of the European Court of Human Rights indicates that there are various aspects to Art. 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that Article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Art. 5(1). It will thus give rise to an enforceable right to compensation under Art. 5(5), the provisions of which are not discretionary but mandatory.”

A little later in his judgment, Lord Hope continued:

“The question whether detention is or is not lawful under domestic law for the purposes of the Convention is a matter which the jurisprudence of the Strasbourg Court has left for decision by the domestic courts. The Divisional Court held that the respondent was entitled to release on 17 September 1996. It must follow that under domestic law her continued detention after that date was unlawful. This would indicate that there was a contravention of Art. 5(1).”

During the course of his judgment, Lord Hobhouse considered the arguments that the Solicitor General had presented on behalf of the Governor of the prison, and concluded as follows:

“The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. ...

The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the Convention case-law as illustrated by Benham v. the United Kingdom (1996) 22 EHRR 293. The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art. 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law. Paragraph 42 of the judgment (at 320) relied on by the Solicitor General does not support his argument:

‘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 facts or law.’

In the present case there was an order; it was never set aside nor did it have to be. The illegality arose because it did not authorise the detention which took place. The order was not obeyed.”

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.

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.

Prior to 1 June 1997 neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in committal proceedings relating to the non-payment of a fine, community charge, council tax or non-domestic rates. 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. The assistance by way of a 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 the proceedings with which this decision is concerned.

Following the Court’s judgment in Benham, which 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 likely to be “at risk of a term of imprisonment being fixed in his case (whether at the hearing for which ABWOR is granted or subsequently)” as a result of his failure to pay any sum which he has been ordered to pay.


The applicant is a Turkish national, born in 1970. He is currently living in Turkey.

He is represented before the Court by Mr. R. Soyer, a lawyer practising in Vienna.

The applicant lived in Austria with his parents and siblings since 1978. He went to school there and later on took up employment. His parents and one brother have meanwhile acquired Austrian citizenship.

On 27 September 1992 the Vienna Federal Police Authority (Bundespolizeidirektion) revoked the applicant’s unlimited residence permit. It noted that the Vienna Regional Criminal Court, on 19 September 1990, had convicted the applicant of damage to property and burglary and had sentenced him to four months’ imprisonment suspended on probation. On 6 December 1991 the same court had convicted him of attempted theft and attempted intimidation and had sentenced him to three months’ imprisonment suspended on probation. In view of these convictions, both of which were final, the applicant no longer fulfilled the requirements for an unlimited residence permit.

On 13 January 1993 the Vienna Federal Police Authority issued a residence ban of unlimited duration against the applicant on account of his convictions.

On 14 July 1993 the Vienna Public Security Authority (Sicherheitsdirektion), upon the applicant’s appeal, quashed the residence ban against him. It relied on S. 20 § 2 of the 1992 Aliens Act (Fremdengesetz) according to which no residence ban may be issued against an alien if it would have been possible to grant him citizenship under S. 10 § 1 of the Citizenship Act, i.e. if he has been resident in Austria without interruption for ten years, before the offences in question were committed, except in case of offences punishable with more than five years’ imprisonment.

On 17 June 1994 the Vienna Regional Government dismissed the applicant’s request for a residence permit. His appeal to the Federal Ministry for the Interior was to no avail.

On 1 February 1995 the Vienna Federal Police Authority issued a deportation order against the applicant. It relied on S. 17 of the 1992 Aliens Act, according to which illegally resident aliens are to be ordered to leave the Federal territory. It noted that in addition to his convictions in 1990 and 1991, the applicant had been convicted of possession of illicit drugs by the Vienna District Criminal Court on 7 May 1992, without an additional sentence being passed. On 12 October 1992 the Vienna Regional Criminal Court had convicted him of making illicit drugs accessible to minors and sentenced him to three months’ imprisonment. On 3 March 1993 the Vienna Regional Criminal Court had convicted him of a number of offences including aggravated fraud, theft, assault and obstructing public authority and had sentenced him to eight months’ imprisonment. The authority acknowledged that the deportation constituted a serious interference with the applicant’s private and family life. According to S. 19 of the 1992 Aliens Act a deportation order was only to be issued if it was necessary within the meaning of Article 8 § 2 of the European Convention of Human Rights. Having regard to the applicant’s repeated convictions including those for drugs offences, which involved particular dangers for public safety, the public interest in deporting him outweighed his interest in remaining in Austria.

On 24 April 1995 the Vienna Public Security Authority dismissed the applicant’s appeal.

On 13 June 1995 the Constitutional Court (Verfassungsgerichtshof) refused to entertain the applicant’s complaint. Subsequently, it referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 8 February 1996 the Administrative Court dismissed the applicant’s complaint. It found that the deportation order against the applicant was necessary within the meaning of Article 8 § 2 of the European Convention on Human Rights in the interests of public safety and the prevention of crime, having regard to his prolonged illegal residence since the withdrawal of his residence permit and the gravity of the offences, in particular the drugs offences, committed by him.

The decision was served on the applicant on 15 May 1996.

On 21 July 1996 the applicant left Austria and is now living in Turkey.


The applicant, Mr Mihail Tiholov Ekimdjiev, is a Bulgarian national who was born in 1964 and lives in Plovdiv. He is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Kotzeva, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a lawyer. His practice includes, inter alia, defending criminal cases at the Plovdiv District Court and dealing with applications before European Court of Human Rights. Before becoming a lawyer he worked as a prosecutor at the Plovdiv District Prosecutor's Office.

In 1997 the applicant was acting as defence counsel for a Mr Borislav Nikolov who had been charged with theft and was being kept in detention. Later Mr Nikolov lodged an application with the European Court of Human Rights, which resulted in a judgment in which violations of Article 5 §§ 1, 3 and 4 were found (see Nikolov v. Bulgaria, no. 38884/97, 30 January 2003).

In early September 1997 the applicant filed with the Plovdiv District Court a habeas corpus petition on behalf of his client, Mr Nikolov. A hearing on the petition was listed for 16 September 1997 before the 4th criminal panel of the court. The panel consisted of a presiding judge, Ms S., and two lay judges.

The applicant submits that on 15 September 1997 he requested to be given access to the case file of the investigation against his client in order to be able to prepare for the hearing. The presiding judge, Ms S., refused to give the applicant access, giving oral instructions to that effect to the court clerk in charge of the file.

At the hearing on 16 September 1997 the applicant requested an adjournment, stating that he had not been given access to the investigation file by personal order of the presiding judge. The applicant submits that an argument ensued between him and the presiding judge as to whether he should have had access to the file.

The next day the applicant read the minutes of the hearing. He submits that he discovered that they did not accurately reflect what had been said at the hearing. They read that his request for an adjournment had been based only on his assertion that he had not read the investigation file and no mention was made of the reasons of him not having read the file. The applicant apparently considered that the wording of the minutes gave the impression that it was his own fault not having read the file.

On 18 September 1997 the applicant filed an application with the Plovdiv District Court, requesting rectification of the minutes. The application read:

“The Plovdiv District Court 4th criminal panel ...

Dear judges,

At the insistence of the presiding judge, Ms S., incorrect and untrue facts, which do not correctly reflect my statements in my capacity of defence counsel, were recorded in the minutes of the hearing ... held on 16 September 1997:

Despite my express request the minutes do not reflect my statement that on 15 September 1997 judge S. personally, by oral order, did not allow me to acquaint myself with the investigation file and that for this reason I consider that the interests of my client were prejudiced.

Instead, my statement was recorded, under the dictation of the judge, as: “I have not acquainted myself with the investigation file”.

The minutes do not reflect my statement that my request of 15 September 1997 ... in which I ask the presiding judge ... to allow me to acquaint myself with the investigation file has not been put in the case file.

The minutes do not reflect the numerous attempts of the presiding judge to prevent me from adducing arguments in support of my position as to whether the court should proceed with the hearing.

For the above reasons and pursuant to Article 311 § 1 of the [Code of Criminal Procedure] I request that the minutes be rectified as necessary so that they reflect the actual statements of the parties.

Only this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents.”

On 23 September 1997 the applicant complained to the chairperson of the Plovdiv District Court that he was not allowed to consult the investigation file and that he could not have this fact entered in the minutes of the proceedings.

The applicant submits that on a date before 24 September 1997 the minutes were corrected to reflect his statement as it actually was. He submits, however, that this was not done in keeping with the proper procedure for the rectification of minutes. On 26 September 1997 the applicant withdrew his request for rectification of the minutes as having become moot.

Meanwhile, on 19 September 1997, judge S. complained to the Plovdiv District Prosecutor's Office, requesting the opening of criminal proceedings against the applicant for having defamed her by stating that in recording in the minutes of the hearing of 16 September 1997 incorrect and untrue facts, which did not correctly reflect his statements, she had committed a “serious procedural violation which bordered on the criminal offence of falsifying documents“.

On 10 December 1997 the Plovdiv District Prosecutor's Office opened criminal proceedings against the applicant for having committed the offence of defamation, contrary to Article 148 § 2 in conjunction with § 1 (3) of the Criminal Code (“the CC”).

The applicant appealed to the Plovdiv Regional Prosecutor's Office, arguing that in the circumstances there was no indication of him having committed an offence.

On 10 February 1998 the Plovdiv Regional Prosecutor's Office dismissed the appeal. It reasoned that, contrary to the applicant's allegations in his application of 18 September 1997, his statement that he could not have access to the investigation file because of judge S.'s instructions had been entered in the minutes. It went on to state that the mere false imputation of conduct to the judge, without more, was defamatory.

On 13 March 1998 the chairperson of the Plovdiv Regional Court wrote to the Bar, informing them that, after considering the issue of granting defence counsels in habeas corpus proceedings access to the investigation files of their clients, the judges of the court had decided that there were no legal grounds for refusing such access and that henceforth counsels would be allowed to consult the files.

On 23 March 1998 the applicant was charged under Article 148 § 1 (3) in conjunction with Article 147 § 1 of the CC with having imputed a crime –falsification of documents – to judge S., by having written “[o]nly this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents”. As a measure to secure appearance at the envisaged trial the applicant was placed under an obligation to not leave the town.

The same day the applicant appealed to the Chief Prosecutor's Office. He objected against the charges, arguing that the facts alleged against him did not constitute a crime, but constituted merely the lawful exercise of his procedural rights as a defence counsel.

On 30 March 1998 the head of the Supreme Bar Council of Bulgaria wrote to the Chief Prosecutor, requesting the discontinuation of the proceedings against the applicant. He stated that the actions of the Plovdiv District and Regional Prosecutor's Offices were in breach of the law and that the applicant had only exercised his procedural rights. He further stated that the court was a collective body and could not be defamed or insulted within the meaning of the CC. He also expressed the Supreme Bar Council's concern that he prosecution had incriminated a routine procedural act performed in pursuance of a counsel's professional duties. The prosecution had thus infringed a lawyer's freedom to act in defence of his clients' rights.

On 17 April 1998 the investigator in charge of the case concluded that the applicant should be committed for trial.

On 7 May 1998 the Chief Prosecutor's Office ordered that the proceedings be transferred to the Pazardjik District Prosecutor's Office, as the applicant had formerly been a prosecutor at the Plovdiv District Prosecutor's Office and the defamation's alleged victim, judge S., was a judge at the Plovdiv District Court.

On 7 September 1998 the Pazardjik District Prosecutor's Office discontinued the proceedings against the applicant. It stated that it would not examine whether the applicant had been properly charged, but reasoned that he had neither committed the actus reus of the crime of defamation, nor had the mens rea to commit defamation. In his application of 18 September 1997 the applicant had used the form of address “dear judges”. Therefore, the application had not been addressed personally to judge S. The judge had to acquaint herself with the application, which was addressed to the 4th criminal panel of the court, in her professional capacity. By making this application for rectification of the minutes the applicant had merely sought to defend the interests of his client, which was, indeed, within his professional obligations. It was also beyond doubt that the words “borders on a crime” featuring in the applicant's text could not be considered as amounting to the imputation of a specific crime.

Article 147 of the CC, as in force at the relevant time, provided:

“1. Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by up to one year imprisonment or a fine of up to five levs, as well as by public reprimand.

The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes.”

Article 148 §§ 1 (3) and 2 of the CC, as in force at the material time, provided that if the defamed person was an official and the defamation was committed against him during or in connection with the performance of his or her duties, the punishment was up to three years' imprisonment and a public reprimand. Offences under Article 148 §§ 1 (3) and 2 of the CC were publicly prosecutable (Article 161 of the CC, as in force at the relevant time).

According to the doctrine, the actus reus of defamation consists of imputing to someone the commission of a crime, i.e. the defamer must state before a third party that the defamed has committed a specific crime, which the defamed has not in fact committed (Александър Стойнов, Наказателно право, Особена част, Престъпления против правата на човека, София, 1997, стр. 138). Defamation is completed when at least one third party has learned about the defamer's statement (id., стр. 139).

Criminal proceedings for a publicly prosecutable crime must be opened whenever the prosecution authorities receive a notification, supported by sufficient information, that a crime might have been committed (Articles 187 and 190 of the Code of Criminal Procedure (“the CCP”)). If the notification to the prosecuting authorities was not supported by sufficient information, they had to order a preliminary inquiry in order to determine whether the opening of criminal proceedings was warranted (Article 191 of the CCP, as in force at the material time).

Article 207 of the CCP provides that when sufficient evidence is gathered that a person has committed an offence, he or she must be charged.

Under Article 146 the CCP, a measure to secure appearance before the competent authority must be imposed in respect of every person charged with having committed a publicly prosecutable crime.

The most lenient such measure is a written undertaking by the accused that he or she would not leave his town without authorisation by the respective authority – the prosecutor or the court, depending on the stage of the proceedings (Article 149 of the CCP).

Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because ... the act committed by the accused is not a crime...;

The State is liable for all pecuniary and nonpecuniary damages which are the direct and proximate result of the unlawful act (section 4). The State's liability is strict, i.e. no proof of fault is required (section 4 in fine). An action under the Act is exempt from the initial payment of court fees (section 10(2)).

Minutes must be kept of all court hearings (Article 310 of the CCP). They must set out, inter alia, all motions, remarks and objections of the parties (Article 101 § 1 in conjunction with Article 310 of the CCP). They must be signed by the presiding judge and the secretary of the court (Article 310 § 2 of the CCP).

If one of the parties considers that the minutes are not complete or are erroneous, it may, within three days after their drafting, make a written request for their rectification or amendment. The request is first examined by the presiding judge, and if he or she denies it, it is examined in private by the entire court panel (Article 311 of the CCP).


Anatoly Kovler;Christos Rozakis;George Nicolaou

The applicants were born in 1954 and live in Moscow.

On 5 October 2001 the applicants sued the Nefron association seeking conclusion of employment contracts.

The Nagatinskiy District Court of Moscow (“the District Court”) scheduled the first hearing for 21 February 2002. Between 21 February 2002 and 17 June 2003 one hearing was held as planned. Six scheduled hearings did not take place due to the respondent’s default in appearance or requests for adjournment, three hearings had to be postponed following the applicants’ failure to appear or requests for adjournment, and three hearings could not proceed as both parties either failed to submit evidence or to show in court altogether.

On 17 June 2003 the District Court considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list.

On 7 August 2003 the applicants asked the court to reinstate the case to its list claiming that they had not been able to appear at the hearings because the first applicant had been undergoing hospital treatment.

On 9 September 2003 the District Court quashed its earlier decision and reinstated the case to its list. The next hearing was scheduled for 3 November 2003. Between 3 November 2003 and 12 July 2004 five hearings were held as planned, whereas five other hearings were postponed due to the fault of the respondent, two for the applicants’ failure to appear, and two others for both parties’ default.

On 12 July 2004 the District Court again considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list.

On 22 December 2004 the applicants asked the court to reinstate the case to its list. On 19 January 2005 the District Court quashed its decision of 12 July 2004 after finding that the applicants had not been duly notified of certain unspecified hearings and resumed the proceedings. The next hearing was scheduled for 31 January 2005.

The hearing of 31 January 2005 was adjourned as the respondent did not appear.

On 16 February and 10 March 2005 the hearings were held as planned.

On 11 March 2005 the District Court dismissed the applicants’ claims in full.

On 8 June 2005 the Moscow City Court upheld the judgment on appeal.

On an unspecified date the first applicant sued the Military Commission of Moscow for recalculation of his pension.

On 14 July 2006 the Justice of the Peace of the 384th Court Circuit of the Meshchanskiy District of Moscow dismissed his claims.

On 25 October 2006 the Meshchankiy District Court of Moscow upheld the judgment on appeal.


The applicant, Mr Zdzisław Siebert, is a Polish national who was born in 1928 and lives in Poznań. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1961 the applicant was granted a tenancy, by way of an administrative decision, in respect of an apartment situated in a private house in Grochowska Street in Poznań, subject at that time to the compulsory management of the Poznań municipal administration.

From 1982 to 1987 the applicant worked in Warsaw, apparently living in a hotel. During that period he was registered for a temporary stay in the local register of inhabitants. This temporary registration was only possible on a condition that he had a permanent address elsewhere. On 30 September 1983 the applicant voluntarily terminated the registration of his permanent residence in Poznań. On 10 October 1985 and on 28 October 1988 respectively, the municipal authorities cancelled the permanent registration of K.S. and E.S., the applicant's daughters, in view of the fact that they had emigrated from Poland to Germany.

On 23 November 1987 the applicant's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements, as he had moved out of his apartment and was registered as a permanent inhabitant in L. On 21 April 1988 the Housing Department of the Poznań Town Hall, acting as a second-instance administrative authority, upheld this decision. On 26 May 1989 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 21 April 1988.

On 23 May 1988 the Poznań Town Hall refused to register the applicant as having a permanent address in Grochowska Street. On 2 July 1988 this decision was upheld by the higher administrative authority, which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned. He had lost his entitlement following the final decision of 21 April 1988, by which the allocation of the apartment to him had ceased to be valid. The applicant had not been living there since 1983, when he had moved out and left it to his daughter. He had also requested that his name be struck off the register of persons having a permanent address there, and had moved into his brother's apartment in L.

In September 1989 the Housing Department of the Poznań Town Hall allocated replacement accommodation to the applicant, consisting of a room 12 square metres in size, with the use of a toilet and water tap in a communal flat. The applicant appealed against this decision, alleging that the rescission of the previous tenancy in Grochowska Street had been unlawful. On 9 November 1989 the second-instance administrative authority at the Poznań Town Hall dismissed the applicant's appeal.

On 17 May 1990 the Minister of Justice refused to lodge an extraordinary appeal against the judgment of 26 May 1989, finding that it was in conformity with the law, particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere, thus clearly relinquishing his entitlement to that apartment.

In March 1990 the applicant was summoned to vacate the apartment, but the eviction was subsequently stayed at the applicant's request, and on the objection of the owner of the replacement accommodation.

On 25 May 1990 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 9 November 1989, considering that the replacement accommodation met legal standards, and that the applicant's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment.

In January 1991 the Poznań Town Hall informed the applicant that he could not be registered with a permanent address at Grochowska Street.

On 12 March 1991 the President of Supreme Administrative Court informed the applicant that he would not consider requesting the Minister of Justice to lodge an extraordinary appeal against the judgment of 25 May 1990, account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant's loss of entitlement to the previous apartment.

On 20 May 1991 the Local Government Board of Appeal of the Poznań Region quashed the decisions of 6 September 1989 and 9 November 1989 by virtue of which the applicant had been allocated replacement accommodation. The Board noted that the house in which this apartment was situated was owned by J.M., who had objected to that accommodation being allocated to the applicant.

On 23 June 1992 the applicant lodged an action with the Poznań District Court for a declaration that the administrative decision of 1961 remained valid. He submitted that he had lost the legal title to the apartment following the unlawful 1988 decision in which the authorities had flagrantly breached the law, in particular by disregarding the fact that he had never permanently left the apartment. As a result of the decision depriving him of the tenancy contract, he could not be registered as an inhabitant, with all the adverse administrative consequences thereof. He referred to difficulties in obtaining his passport, and to the fact that he was regarded by the authorities as a homeless person. He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists.

On 6 October 1992 the District Court refused to entertain his claim, apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions.

In reply to the applicant's complaint that he had been deprived of his right to vote in the municipal elections in 1994, the Secretary of the State Elections Committee informed him on 7 July 1994 that the voters' lists had been prepared on the basis of municipal electoral lists. These lists included ex officio persons with permanent addresses in the given municipality. Persons temporarily residing in the municipality, who were not so registered could be included in electoral lists, provided that they submitted a request for registration.

In 1997 the applicant complained to the Poznań Town Hall that, due to the fact that he did not have an officially registered permanent address, he could not obtain a certificate of entitlement to a share in a privatised State property (a NFI share certificate). Only those citizens who had a permanent abode were entitled to receive such certificates.

In a reply dated 9 February 1997, the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a NFI share certificate, in the absence of a permanent registered address. Nevertheless, as a consequence of a judgment of the Constitutional Court, confirmed by the Polish Parliament, the entitlement of persons without a registered permanent address to receive a NFI share certificate had been recognised and such persons would be granted their share certificates in the course of time.

Apparently, the applicant is still living in the apartment in Grochowska Street. As he is regarded as staying in the apartment without any legal basis, he is obliged to pay double rent under applicable housing regulations.

From 1945 on, housing matters were subject to a high degree of state control under successive acts of housing legislation. The most important characteristic of this system, a so called “special lease scheme” was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant. Although “the special lease scheme” was abolished under the 1994 Act, the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions.

The obligation for Polish citizens residing in Poland to register their permanent address in a municipality's register of inhabitants is stipulated in Article 5 of the National Identity Cards and Registration of Persons Act 1974 (Ustawa o ewidencji ludności i dowodach osobistych z 10.04.1974).

Under Article 6 of the 1974 Act, the notion of “living permanently” implies residing at a given address with the intention of making it the principal centre of one's vital interests.

Article 9 (2) of the 1974 Act provided that: “a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment (or other dwelling premises) concerned.” On 27 May 2002 the Polish Constitutional Court declared Article 9 (2) of the 1974 Act unconstitutional and, subsequently, this provision was repealed with effect from 19 June 2002. As a result of the judgment of the Constitutional Court, the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered.

Under the Electoral Law of 1993 and of the Electoral Law of 2001 a person who has no fixed residence shall be registered, upon his own motion lodged 10 days before the election at the latest, as a voter in the electoral list in a commune in which he is staying.

Under Article 31 of the National Investment Funds and Privatisation Act of 1993 (Ustawa o narodowych funduszach inwestycyjnych i ich prywatyzacji) every citizen of the Republic of Poland aged 18 or over and permanently residing in Poland was entitled to receive a National Investment Fund (NFI) share certificate (to be later converted into company stock). Under the amended version of this provision, which came into force on 31 May 1997, the Minister of Internal Affairs and Administration was responsible for drawing up the lists of persons, not having a permanent residence address in Poland, who were entitled to receive a NFI share certificate.