FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44564/98 
by Agnes MORT 
against the United Kingdom

The European Court of Human Rights, sitting on 6 September 2001 as a Chamber composed of

Mr G. Ress, President
 Mr I. Cabral Barreto
 Sir Nicolas Bratza
 Mr V. Butkevych
 Mr J. Hedigan
 Mr M. Pellonpää
 Mrs S. Botoucharova, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 21 August 1998 and registered on 16 November 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Agnes Mort, is a United Kingdom national, born in 1956 and living in Corby. She is represented before the Court by Mr Wise, a lawyer practising in Stoke on Trent.

A.  The circumstances of the case

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

At the time of the events, the applicant was a 42 year old single mother in receipt of Income Support, with a history of mental health problems and drug addiction.

On 10 November 1995, following a plea of guilty, the applicant was convicted by Corby Magistrates’ Court for not paying her television licence fee. She was fined 100 pounds sterling (GBP) and ordered to pay GBP 45 costs, a total of GBP 145 under section 150(3) of the Magistrates’ Courts Act 1980. Having taken into account her means, the court exercised its power under section 75(1) of the 1980 Act to order that she pay at the rate of GBP 5 per week. By rule 46(1) of the Magistrates’ Courts Rules 1981, the clerk of the court served notice on the applicant informing her of the amount to be paid, and the amount of instalments and the time and place at which payment was to be made. Following her continued default in paying instalments, a summons was issued for her appearance in court on 24 January 1996. When she failed to appear without explanation, the court issued a warrant for her arrest. This was executed. The applicant appeared in court on 13 March 1996, where a means inquiry was conducted. The court found that she had wilfully refused to pay and ordered that she be committed to prison for 7 days, suspended on condition that she paid the fine at the rate of GBP 5 per week. The applicant defaulted on payment. On 1 May 1996, when the applicant failed to appear or make any representations, the court ordered that the applicant be committed to prison for 7 days unless the outstanding balance of GBP 140 was paid. However on 25 September 1996, before the order had been executed (because the applicant had not been found), the court decided to review its decision in light of recent developments in the case-law, cancelling the period of imprisonment and issuing a warrant to secure her attendance at court to conduct a further means inquiry.

On 27 September 1996, the applicant was again convicted of using a television without a licence. She was fined GBP 120 with an order to pay GBP 45 costs. She was not present in court. The court ordered that she pay the sum in full by 25 October 1996. The clerk of the court served her with notice of this requirement. The applicant failed to make any payment. A reminder was sent on 4 November 1996. The applicant made no response.

The court issued a summons requiring the applicant to attend court on 4 December 1996. When she failed to appear, the court issued a warrant for her arrest under section 83(1)(b) of the 1980 Act.

The warrant in relation to the second order was executed and the applicant appeared in court on 10 March 1997. The court consolidated the sums due under the two orders and conducted a means inquiry as required by section 82(3)(b) of the 1980 Act. In answer to questions put by the justices’ clerk, the applicant gave evidence of her health and circumstances. She told him that she had not paid the fine as she had been very ill. She had been suffering from depression and agoraphobia for over one and a half years. At the end of the hearing, the Clerk consulted with the magistrates before the magistrates ordered her to pay the fine at GBP 5 per week from 24 March.

After missing two payments, the applicant paid instalments on 8 and 15 April 1997. After that, she defaulted again. On 30 April 1997, a summons was issued requiring her attendance on 30 May 1997. She failed to appear. A warrant for arrest was issued.

The applicant was brought before the magistrates on 25 July 1997. At the hearing, she was not represented and not offered the assistance of a duty solicitor. She did not request the services of such a solicitor. An inquiry into her means was conducted. Almost all the questions were put by the justices’ clerk. The purpose of the questions was to establish her means at that time, to draw out what if any reasons or excuses existed for non-payment and to enable the magistrates to consider the available enforcement options and to decide whether they were appropriate or likely to succeed. She testified that she was an unemployed single parent with a son aged 11. She received GBP 79 per week from the Department of Social Security and GBP 17 per week child benefit. She had recently paid off rent arrears of GBP 400. She paid GBP 35 per week for food, GBP 10 for fuel and received her benefit after deduction of rent.

The applicant told the court that she had suffered ill-health and produced a sick note from her doctor, stating that she suffered from anxiety, depression and the effects of heroin abuse and explaining the medication she took. In the course of the questioning, the Clerk put to the applicant that her willingness to pay other debts during this period but not the fine suggested that she regarded the latter as being of low priority and that it demonstrated that she could manage to pay the fine if she had a mind to. The applicant replied that she felt that she had to pay off her rent arrears in order to keep a home for her son and herself.

At the end of the questioning, the justices’ clerk followed the magistrates at their request into the Retiring Room. They had indicated to the clerk during the hearing that they were minded to find culpable neglect on the applicant’s part in failing to pay the fines and costs and to impose a suspended committal, and wished to ensure that they had considered all the enforcement options available. The magistrates and Clerk returned to the courtroom together. The magistrates made an order to commit the applicant to prison for 14 days, suspended on condition that she pay GBP 7 per week.

The applicant failed to make further payments. On 28 August 1997, she was summoned to appear before the magistrates on 19 September 1997 to show cause why she should not be committed to prison. When she did not appear, the court committed her to prison for 14 days unless the balance of GBP 295 was paid.

On 20 October 1997, the applicant attended Corby Police Station where she was arrested and detained pursuant to the commitment warrant. On 21 October 1997, she was transferred to prison.

On 22 October 1997, the applicant’s application for judicial review of the court’s decision was granted. She was released on bail.

A hearing was held before the Divisional Court. The applicant argued, inter alia, that the procedure for imprisoning defaulters was unfair and against natural justice and that the role played by the Clerk in the proceedings gave rise to the appearance of a lack of independence and impartiality in the judicial process.

In its judgment of 9 March 1998, the Divisional Court rejected the applicant’s claims. It found no unfairness or impropriety in the general practice in magistrates’ enforcement procedures or in the way in which the applicant’s own case had been conducted. It noted the arguments of the applicant’s counsel that the proceedings should be regarded as criminal in nature and those of counsel instructed by the Attorney General as amicus curiae that the proceedings were neither criminal or civil but sui generis. It commented that the latter’s arguments were sound in domestic law but decided that categorisation was not necessary for the purposes of the decision in this case.

Concerning the applicant’s allegation that there was no authority in statute or subordinate legislation for the clerk to act as interrogator, it held:

“It is for a magistrates’ court, like any other court, subject to legislative rules and within the bounds of fairness to determine how its proceedings should be conducted... It would undoubtedly be contrary to ordinary standards of fairness and also to established practice, if the clerk were to assume an adversarial or partisan role in the conduct of any proceedings, including a means inquiry. There should be no question of his setting out to establish wilful refusal or culpable neglect, and there should be no question of his advising the justices on the facts or communicating his personal opinion of the facts to them. So much is clear beyond argument. But there is in our view no objection to the a clerk, at the express or implied request of the magistrates, asking questions of a debtor relevant to his or her means for purposes of a means inquiry. Section 84 of the 1980 Act empowers the court to order a person to furnish such a statement of means as the courts may require. This is a power which, under the Justices’ Clerks Rules 1970, the clerk may exercise on behalf of the court. It would be strange if the clerk were not permitted to elicit by oral questions the material which he is authorised to require in writing on pain of a criminal penalty.. Whether judged by domestic or convention standards, the general practice adopted in Northamptonshire (and no doubt elsewhere) in our view satisfies the high standard of fairness appropriate to a proceeding which may lead to imprisonment.”

Concerning the independence and impartiality of the justices’ clerk in this case, the Divisional Court noted that in his affidavit, the clerk in the applicant’s case denied that his questioning was in any way aggressive or oppressive. He had conferred with the magistrates at their request as they were minded to find the applicant guilty of culpable neglect and to impose a suspended committal and wished to ensure that they had considered all the enforcement options available. He did not influence their decision in any way. He advised them on the law only. The Divisional Court found as follows concerning his questioning of the applicant:

“Counsel for the applicant strongly criticised the conduct of the clerk in questioning the applicant on 24 July 1997 and in advising the justices. Particular complaint was made of his comment that the applicant had chosen to pay off rent arrears in preference to payment of her outstanding fines. There is nothing in the evidence in our opinion to suggest that the clerk exceeded the proper bounds of his role or disregarded the constraints by which he was bound. It does not appear (and the applicant does not claim) that she mentioned her arrears of rent at the means inquiry conducted on 10 March 1997; nor, despite abundant opportunity to do so, had she drawn these to the attention of the court at any other time, or sought an extension of time or variation of her instalment schedule in order to enable her to meet these arrears. It is quite unclear over what period or at what rate these arrears were cleared. It did indeed appear that the applicant had, without reference to the court, chosen to pay her rent arrears in preference to the fine, but if that was not so it was open to her to correct that suggestion.”

The Divisional Court refused to certify that the case raised a point of law of general public importance fit to be decided by the House of Lords.

B.  Relevant domestic law and practice

1.  Enforcement of financial penalties

Section 82 of the Magistrates Court Act 1980 provides:

Restriction on power to impose imprisonment for default

... (3)  Where on occasion of the offender’s conviction a magistrates’ court does not issue a warrant of commitment for a default in paying any such sum as aforesaid or fix a term of imprisonment under the said 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 –

(a)  he is already serving a sentence of custody for life, or a term of imprisonment...; or

(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 such sum unless –

(a)  in the case of an offence punishable with imprisonment, the offender appears to the court to have sufficient means to pay the sum forthwith; or

(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 84 of the 1980 Act provides

Power to require statement of means

(1)  A magistrates’ court may, either before or on inquiring into a person’s means under section 82 above... order him to furnish to the court within a period specified in the order such a statement of his means as the court may require.

(2)  A person who fails to comply with an order under subsection (1) shall be liable on summary conviction to a fine...”

2.  Role of Justices’ Clerks

Magistrates are mostly lay people without any legal qualification. They are assisted in the performance of their functions by justices’ clerks who are legally qualified (barristers or solicitors who had at least a five year magistrates’ court qualification). The justices’ clerks are appointed by the Magistrates’ Courts committee with the approval of the Home Secretary.

Part IV of the Justices of the Peace Act 1997 provides inter alia for the appointment of justices’ clerks.

Section 45(4)-(7) provide as relevant:

“(4)  The functions of a justices’ clerk include giving advice to the justices to whom he is clerk, at their request, about law, practice or procedure on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.

(5)  The powers of a justices’ clerk include, at any time when he thinks that he should do so, bringing to the attention of those justices any point of law, practice or procedure that is or may be involved in any question so arising. ...

(7)  Subsections (4) and (5) above –

...

(b)  do not define or in any way limit –

(i)  the powers and duties of a justices’ clerk; or

(ii)  the matters on which justices may obtain assistance from their clerk.”

In Practice Note (Justices’ Clerks) [1953] I WLR 1416 Lord Goddard CJ gave guidance on the role of justices’ clerks. He made plain that justices might seek the advice of their clerk on questions of law or of mixed law and fact and also on questions regarding the practice and procedure of the court. He emphasised that in no circumstances might they consult their clerk as to the guilt or innocence of any accused so far as it was simply a question of fact, but if a question arose as to the construction of a statute or regulation they might consult him on whether the facts found by them constituted an offence, because that would be a question of mixed law and fact. They were not to ask their clerk’s opinion as to the sentence which they should impose, but could ask for information as to the sentences imposed in comparable offences and could most certainly consult him on what penalties the law allowed in a particular case. It was made plain that the decision must be that of the court and not of the clerk, and if the justices wanted the advice of their clerk they should ask for it; he should not retire with them as a matter of course.

Justices’ clerks should not take a partisan role in proceedings:

“Indeed, it is important in the interests of justice that the clerk should not give even the appearance of seeking himself to conduct the case of either party, or to limit the way in which that case is conducted. At any particular trial this need to allow freedom to the litigant has from time to time to be balanced against the clerk’s duties to assist the court as to what is and what is not relevant - matters, however, on which it is not for him to give a ruling himself.” (Hobby v. Hobby, [1954] 1 WLR 1020 at p. 125, Sachs J)

Concerning questioning by the justices’ clerks, the domestic courts have held:

“There are some justices, some benches, who require their clerks to cross-examine to clear up ambiguities, and prefer that he should do it rather than do it themselves; there are other benches who desire to do the cross-examination themselves and for the clerk to remain silent. There is no general practice; there is no accepted practice...” (R v. Consett Justices ex parte Postal Bingo Ltd [1967] 2 QB, p. 18, Lord Parker CJ)

On 2 July 1981, Lord Chief Justice Lane issued a direction (Practice Direction (Justices: Clerk to the Court [1981] 1 WLR 1163) giving further guidance.

Paragraph 3 provides:

“If it appears to him necessary to do so, or he is so requested by the justices, the justices’ clerk has the responsibility to–

(a)  refresh the justices’ memory as to any matter of evidence and to draw attention to any issues involved in the matters before the court;

(b)  advise the justices generally on the range of penalties which the law allows them to impose and on any guidance relevant to the choice of penalty provided by the law, the decisions of the superior courts or other authorities. If no request for advice has been made by the justices, the justices’ clerk shall discharge his responsibility in court in the presence of the parties.”

Paragraph 4 states:

“(a)  The justices are entitled to the advice of their clerk when they retire in order that the clerk may fulfil his responsibility...

(b)  Some justices may prefer to take their own notes of evidence. There is, however, no obligation upon them to do so. Whether they do or not, there is nothing to prevent them from enlisting the aid of their clerk and his notes if they are in doubt as to the evidence which has been given.

(c)  If the justices wish to consult their clerk solely about the evidence or his notes of it, this should ordinarily, and certainly in simple cases, be done in open court. The object is to avoid any suspicion that the clerk has been involved in deciding issues of fact.”

According to established practice, when justices retire, the clerk should not retire with them as a matter of course or uninvited; nor should he retire with them when the only question is one of fact. If not retiring with the justices, the clerk should remain in court. Provided that the clerk is legitimately assisting the justices on matters which it is his function to perform, it is not improper for him to remain with them throughout their retirement.

Issues of fairness or propriety of procedures or bias may be challenged in judicial review proceedings.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention of the role played by the justices’ clerk in the fine enforcement proceedings, who acted as prosecutor in asking her hostile questions and retired with the justices when they reached their decision. This was contrary to the principles of adversarial proceedings and equality of arms and cast doubt on the independence and impartiality of the court.

2.  Furthermore, the applicant argues that “fine enforcement courts” do not constitute a tribunal “established by law” due to the lack of express or detailed legal basis for the procedures adopted in her case.

THE LAW

The applicant complains under Article 6 § 1 of the Convention concerning the role of the justices’ clerk at the proceedings for enforcement of a fine in a magistrates’ court and concerning lack of sufficiently precise legal basis for magistrates’ courts when acting as fine enforcement bodies.

Article 6 § 1 of the Convention provides as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

A.  Applicability of Article 6 of the Convention

The Government argue that Article 6 is not applicable to the proceedings in the magistrates’ court for the enforcement of the fines against the applicant. The magistrates’ court was not determining a criminal charge. Though the proceedings are sui generis in domestic law rather than civil or criminal, the Government submit that they are more civil than criminal as their purpose is to coerce the applicant into paying the fines and costs rather than to punish her for not having paid them. This situation is distinguishable from that in the Benham case (Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III), where the applicant was brought before the magistrates’ court for non-payment of a community charge) as this applicant had been twice convicted in separate criminal proceedings of the offence of using a television without a licence. These criminal charges had been finally determined and the later fine enforcement proceedings were separate civil proceedings aimed at recovering a debt to the State. They were not prosecutorial or adversarial but administrative and inquisitorial. The penalty was also not sufficiently detrimental to bring the proceedings within the criminal sphere (e.g. Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, § 82).

The applicant submits that the fine enforcement proceedings were classified in the domestic courts at least at the outset as criminal. There was no doubt as to the punitive nature of the fine and the penalty of imprisonment could be imposed. The magistrates had found the applicant guilty of culpable neglect and had fixed a term of imprisonment, which was clearly a punitive measure intended to punish the applicant for a criminal offence. She points out that in the Benham case the proceedings in the magistrates court which were considered civil in domestic terms were found to be criminal and that following the Benham case the Government has extended the ABWOR scheme (legal advice by way of assistance) to fine defaulters such as the applicant and community charge defaulters such as the applicant in Benham, recognising that both categories should be enabled to have publicly funded legal assistance.

The Court recalls that its case-law establishes that there are three criteria to be taken into account when deciding whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence in domestic law, the nature of the proceedings and the nature and severity of the penalty (see the Benham judgment cited above, § 56).

Regarding the first criterion, which is only a starting point, the Court notes that the domestic court had doubts whether the proceedings were criminal but did not decide the point. Turning to the second criterion, the nature of the proceedings, which carries more weight, the applicant was dealt with under general laws applying to the community as a whole. As in the Benham case, the magistrates’ court could only exercise their power of committal to prison on a finding of culpable neglect. The proceedings therefore had a punitive aspect. Finally, the applicant faced a maximum period of two weeks’ imprisonment. While this was not as long as the period of detention in issue in the Benham case (the applicant was sentenced to thirty days, out of a maximum of three months, judgment cited above, see § 56) or in the Engel case (three applicants faced a maximum of three to four months, judgment cited above, at § 85), it must in the circumstances be regarded as having a deterrent and punitive nature beyond considerations of debt enforcement.

The Court concludes that the proceedings involved the determination of a criminal charge and that Article 6 is applicable.

B.  Compliance with Article 6 of the Convention

1.  The role of the justices’ clerk

(a)  The parties’ submissions

The Government submit that fine enforcement proceedings are not required to be adversarial in the sense that a prosecutor must be present. The right to an adversarial trial required that the applicant had knowledge of and opportunity to comment on the evidence against her. In this case the applicant was given ample and repeated opportunity of presenting her case to the magistrates. Nor was there any lack of equality of arms, which principle is aimed at preventing one party in the proceedings being placed at a substantial disadvantage vis-à-vis the other.

They argue that the role of the magistrates’ clerk did not offend either of these aspects of a fair trial. The clerk in no sense acted as the applicant’s opponent. He asked the applicant questions on behalf of the justices, as their servant and officer. There could be no objection to the justices, in person or through their clerk in putting relevant questions concerning the applicant’s means and ability to pay, providing that the questions were put in a neutral way. The clerk in this case was not partisan, did not question the applicant oppressively and did not cross-examine her. The Divisional Court found that he had not assumed an adversarial or partisan role. The purpose of the questions was to discover the information needed by the justices to make a proper and informed judicial decision as to her identity, means to pay, payments so far made and any reasons or excuses for non-payment. They were not leading or “prosecution” questions and were as much geared to extracting information which would assist the applicant in mitigation as information that would be adverse to her. Nor could the role of the clerk be equated to that of the procureur-general in, amongst other, the Borgers case (judgment of 30 October 1991, Series A no. 214, §§ 24-29) where the state official had taken a public stance against one of the parties by making submissions as to the proper outcome of a particular case. The clerk’s role throughout was neutral as required by law. The magistrates were not therefore deprived of their independence and impartiality due to the presence of the clerk in court or in retiring with them when they reached their decision.

The applicant submitted that the role played by the justices’ clerk was contrary to the guarantees of Article 6 § 1 of the Convention. In particular the applicant was deprived of her right to adversarial proceedings as she faced no prosecutor or other opponent other than the justices’ clerk. The presence of a prosecutor would have fairly and properly allowed the issues to be investigated without involving the clerk. There was also a breach of the principle of equality of arms as she was unable to have knowledge of, or the opportunity to comment on, the submissions made to the magistrates by the clerk who had effectively become her opponent, when he asked her questions not merely to establish her means but also to draw out what reasons or excuses existed for non-payment. She refers, inter alia, to the Court’s judgments in Borgers v. Belgium (cited above) and Lobo Machado v. Portugal (judgment of 20 February 1996, Reports 1996-I, § 31).

In addition, she argues that the nature of the role played by the clerk in her fine enforcement proceedings gave rise to an objectively justifiable fear that the court, i.e. the magistrates, lacked the necessary impartiality and independence when deciding whether or not to commit her to prison. It is not suggested that there was any personal bias on the part of the clerk. However, legitimate fears arise from the interrogation of the applicant by the clerk, who then retired with the magistrates when they made their decision, thereby acting as prosecutor and appearing to be involved in the decision-making procedure. She does not agree with the Government’s submission that the clerk played only a neutral role. It is not known with certainty what advice the clerk gave the justices or what influence he had on the decision-making. There was no justification for the clerk not giving any advice in open court. The fact that the clerk retired with the justices gave rise to an appearance of unfairness as well as substantive unfairness as he acted effectively as prosecutor by instigating the proceedings and conducting the questioning and then participated in the decision-making by the justices.

(b)  The Court’s assessment

The Court observes that the applicant has invoked both the principle of equality of arms and the requirement of independence and impartiality in respect of the role of the justices’ clerk in her case. It would point out that equality of arms, an important element in ensuring the adversarial nature of proceedings, applies vis-à-vis the other parties in the proceedings. It does not apply as regards the tribunal or court. Conversely, it is not required of the prosecutor or other parties in proceedings to give guarantees of independence and impartiality, which attach to the members of the court which determines the issues in the case. It has therefore examined whether the justices’ clerk acts as prosecutor or party, or as part of the court itself.

The Court recalls that the justices’ clerk acts solely to assist the magistrates, who are lay judges. This may involve giving advice on law or procedure, taking notes of evidence and on occasion conducting examination of witnesses on the justices’ behalf (see Relevant Domestic Law and Practice, above). There is no question of the justices’ clerk enjoying any role in the proceedings independent of the justices, or in having any duty with regard to influencing a decision in any particular direction. In that respect, the clerk’s position can be distinguished from officers such as the procureur général, avocat général or commissaire du gouvernement, who make submissions to the courts concerning their personal views on the outcome of particular cases (see Borgers, cited above, Lobo Machado, cited above, and Kress v. France, no. 39594, [GC] judgment of 7 June 2001, to be published in ECHR 2001-...). On that basis, no problem arises in the normal course of events if a justices’ clerk retires with the justices and it is not known what assistance, if any, he or she in fact furnishes to them. Assuming the clerk fulfils the role provided by law, his or her presence during the deliberations of the justices must be regarded as part of the ordinary functioning of the court.

In this case however, the applicant complained that there was no prosecutor present and that the justices’ clerk effectively took on that role in open court. This does not, in the Court’s view, indicate that he should be regarded, for the purposes of Article 6, as an adversary to whom considerations of equality of arms were applicable. Rather it falls to be examined whether the justices’ clerk’s conduct in the proceedings failed to observe the requirements of independence and impartiality required of him, as an integral part of the magistrates’ court. The fact that domestic case-law and the practice directions of the courts insist that the justices’ clerks must avoid appearing to conduct a case for any party and that applicants may bring proceedings for judicial review where a clerk has shown bias confirms the Court in this conclusion.

The Court has accordingly considered the applicant’s complaints that the justices’ clerk gave the appearance of bias in the way in which he questioned her in court. It recalls that this question was also considered by the Divisional Court, which found that the clerk’s conduct had not exceeded the proper bounds and that he was entitled, on behalf of the justices, to elicit by oral questions information relevant to the applicant’s means. The applicant argued that the justices’ clerk in effect asked prosecutor-type questions to draw out if she had any excuses or reasons for non-payment and that, irrespective of whether he was actually biased, this cast doubt on the independence and impartiality of decision-making procedure in the magistrates’ court.

This Court is however not persuaded that the questioning of the applicant by the justices’ clerk in this case overstepped what would be permissible as a court officer acting on behalf of the justices. His task was to obtain the necessary information about her means to enable the justices to determine whether she had been able to pay the fine or not.  The question which he put to her concerning her paying off rent arrears in priority to the fine highlighted the fact that she had the means to discharge some of her debts at some time in the past. This may not have been favourable to the applicant’s assertion that she could not pay the fine but did afford her the opportunity to put forward relevant matters in that regard and cannot be regarded per se as hostile or biased.

The applicant has in addition argued that she was prejudiced as there was no prosecutor present to give a proper, adversarial nature to the proceedings. It is not apparent however that the presence of a prosecutor to cross-examine her about her failure to pay her fines was necessary to render the proceedings fair within the meaning of Article 6 § 1 of the Convention. She has not, for example, drawn attention to any matter which she had intended to raise in her defence but was prevented from doing because of the procedure adopted.

The Court concludes that the applicant’s complaints must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  A tribunal established by law

(a)  The parties’ submissions

The Government submit that the magistrates’ court is not a separate entity when it acts as a “fines enforcement” court but continues to act under the statutory provisions relevant to their powers and procedures, e.g. the Magistrates Courts Act 1980. The fines enforcement function, including the role of the clerk in advising the justices, is spelt out in primary and secondary legislation, practice notes, directions and case-law. The inquiry into means carried out by the clerk on behalf of the justices is provided for in statute and the justices are entitled under domestic law to authorise their clerks to do this on their behalf as in this case or do so themselves as is the practice in other areas.

The applicant argues that the magistrates’ court was not a “tribunal established by law” as required by Article 6 § 1. She submits that the statutory framework is too vague and imprecise concerning fine enforcements and fails to prescribe in sufficient detail the procedure by which such hearings are to be conducted. For example, there was nothing in the statutory framework of Magistrates’ Courts Rules expressly authorising the justices’ clerk to ask the accused questions concerning whether the failure to pay is due to wilful refusal or culpable neglect. The evidence in the applicant’s judicial review proceedings was that the conduct of a means inquiry was governed by local practice, which does not satisfy the stringent requirement of “established by law”.

(b)  The Court’s assessment

The Court observes that it is not disputed that the magistrates’ courts which fulfil numerous criminal and civil law functions are in principle “tribunals established by law” with the prerequisite power to give a binding decision and the procedural safeguards attached to a judicial body. The applicant’s arguments centre on the way in which the magistrates’ court in her case carried out fine enforcement procedures. The Court considers that in imposing fines and holding means enquiries prior to imposing penalties for failure to pay fines the magistrates courts are acting under statutory authority and within their competence. It is not persuaded that in the applicant’s case the magistrates’ court has been shown to have exceeded that competence or acted outside the legal framework governing the exercise of its functions. While the applicant argues that no express power has been conferred on justices’ clerks to carry out questioning in means inquiries in fine enforcement hearings, this may be regarded as part of the clerk’s duties to assist the magistrates. The fact that magistrates’ courts vary on the extent to which they delegate questioning to their clerks does not establish that the practice goes beyond the legitimate exercise of the magistrates’ discretion. Furthermore, the point was raised by the applicant in judicial review proceedings in the Divisional Court which had power to quash decisions taken ultra vires. It found no ground of unlawfulness made out. Recalling that it is primarily for the national authorities, notably the courts, to resolve issues of domestic law, the Court sees no reason to call into question the Divisional Court’s findings in this regard.

The Court concludes that the applicant’s complaints in this respect are unsubstantiated and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

MORT v. THE UNITED KINGDOM DECISION


MORT v. THE UNITED KINGDOM DECISION