Aid for the defaulter

A ruling in the European Court may help poll tax avoiders stay out of jail. By Robert Verkaik

Poll tax day at any busy magistrates' court is a bit like a step back in time to the debtors' courts of the pre-legal aid days of Dickensian England.

As soon as the doors open, scores of unprepared defaulters mill into the courtroom hoping to persuade the justices of the merits of their own special circumstances. A lucky few might be accompanied by a Mackenzie friend or are able to afford legal advice. But the majority will find out the hard way that the court usually has little option but to find "culpable neglect" and commit the "wilful" poll tax defaulter to prison.

An important judgment last month in the European Court of Human Rights ruled that legal aid should now be available to people at risk of imprisonment for non-payment of poll tax.

The case was brought by 29-year-old Stephen Benham, who had been sentenced to 30 days in prison by magistrates of Poole, Dorset, for failing to pay his pounds 355 poll tax bill. He was supported by Liberty, the civil rights group.

Duncan Lustig-Prean, the group's deputy director, said: "In default cases there are fairly complicated and legalistic formulae on the matter of culpability and a complex calculation of means. Many people who represent themselves are completely at sea with this."

As a signatory to the European Convention of Human Rights, the Government must now decide how to follow the ruling. Mr Lustig-Prean believes there is no question of the Government not acting. "If they turn round and say poke off Europe they risk an enormous fine," he warns.

Jon Lloyd, co-chairman of the Legal Aid Practitioners Group, has had many years' experience in magistrates' courts. He says: "I have felt uncomfortable that this has been allowed to go on without there being proper representation to canvas alternatives to prison."

The Law Society is now formulating its own response package to the ruling to help guide the Lord Chancellor's Department in its implementation.

Russell Wallman, head of professional policy at the Law Society, believes some courts are all too ready to use prison. "We wrote to the Lord Chancellor's Department many years ago to make sure people in this position could get representation. All that is needed is a simple regulation change to the duty solicitors scheme." As the scheme already covers fine defaulters, Mr Wallman believes it is only a loophole that prevents representation for those at risk of imprisonment for non-payment of poll tax. However, the Law Society does not see the need for "full blown" legal aid. "The duty solicitors scheme costs about pounds 50 per person and would therefore be the most economical way of providing representation," says Mr Wallman. It's unlikely that the new ruling will result in significantly more legal aid work for solicitors or likewise a huge rise in the legal aid budget.

But Mr Lloyd would like to see something more than just an extension of the duty solicitors scheme. Under Abwor (assistance by way of representation) legal aid can be granted for restricted representation in specific cases. This already covers disciplinary appearances before prison governors and certain situations in the Domestic Proceedings Act. While still not full legal aid, this would allow people to have their own choice of solicitor rather than the solicitor who happens to be on duty the day of the defaulter's court appearance.

"Before anything is finalised on this," says Mr Lloyd, "I would like to suggest this [a form of Abwor] as an alternative to just being dealt with by the duty solicitors scheme."

Liberty believes its victory in the European Court has already helped to stop the clock being turned back in our magistrates courts. "I don't think that in 1996 it's civilised for this society to go back to Dickensian times and the debtors' prison," says Mr Lustig-Prean.

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