A person facing committal to prison for up to three months for non-payment of community charge or council tax was "charged with a criminal offence" for the purposes of article 6, paras 1 and 3(c) of the European Convention on Human Rights, and the lack of provision for free legal representation at such proceedings was a violation of his right to a fair hearing.
The European Court of Human Rights unanimously upheld a complaint by Stephen Andrew Benham, which had been referred to the court by the European Commission of Human Rights and by the UK government. But the Court rejected by a majority Mr Benham's claim that his imprisonment for non-payment of community charge constituted a violation of his right to liberty and security of person under article 5 of the Convention.
On 25 March 1991 Mr Benham appeared before Poole Magistrates' Court on an application by Poole Borough Council, under regulation 41 of the Community Charge (Administration and Enforcement) Regulations 1989 (SI 438), for an order committing him to prison for non-payment of a charge of pounds 325. He was not represented by a lawyer, though he was eligible for "Green Form" legal advice and assistance before the hearing, and the justices could have made an order for assistance by way of representation ("Abwor") if they had thought it necessary. The justices found that Mr Benham's failure to pay the community charge was due to his "culpable neglect" within regulation 41 and sentenced him to 30 days' imprisonment.
On his appeal by case stated, the Queen's Bench Divisional Court held that the justices had erred in finding culpable neglect, and that the decision to commit him to prison would have been wrong even if there had been evidence of culpable neglect because at the time of the hearing he lacked the means to pay the debt.
Article 6 provides that in "the determination of . . . any criminal charge against him, everyone is entitled to a fair . . . hearing" (para 1) and, by para 3(c),
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require.
The applicant submitted that the committal proceedings were criminal in nature and the interests of justice required him to be represented before the justices.
David Pannick QC and P. Duffy (M. Eaton, Foreign and Commonwealth Office, and M. Collon, Lord Chancellor's Department) for the Government; Mrs J. Liddy, delegate, for the Commission; Ben Emmerson and Professor A. Bradley (John Wadham, Liberty) for the applicant.
The Court ruled that although the proceedings in question were classified in English law as civil rather than criminal, their nature and the nature and degree of severity of the penalty were such as to justify the conclusion that Mr Benham was "charged with a criminal offence" for the purposes of article 6, paras 1 and 3.
It was not disputed that Mr Benham lacked the means to pay for legal assistance. The only issue was whether the interests of justice required him to be provided with free representation at the committal hearing. In answering that question, regard must be had to the severity of the penalty at stake and the complexity of the case.
The Court agreed with the Commission that, where deprivation of liberty was at stake, the interests of justice in principle called for legal representation. In this case, Mr Benham faced a maximum term of three months' imprisonment.
Furthermore, the law which the justices had to apply was not straightforward. The test for culpable negligence in particular was difficult to understand and operate, as shown by the fact that, in the Divisional Court's judgment, the justices' finding could not be sustained on the evidence.
Under neither the Green Form nor the Abwor schemes was Mr Benham entitled as of right to be represented.
In all these circumstances, the interests of justice demanded that, in order to receive a fair hearing, Mr Benham ought to have had free legal representation during the proceedings before the justices. It followed that there had been a violation of article 6.