L A W R E P O R T S: Jailing of poll tax defaulter infringed human rights

Benham v United Kingdom. European Commission of Human Rights. 29 November 1994.

The imprisonment of a poll tax defaulter, who was unemployed and lacked the means to pay, following an inadequate inquiry into his means and reasons for failing to pay, and the failure thereafter to award him compensation for wrongful detention, constituted infringements of his rights, under article 5 of the European Convention on Human Rights, to liberty and security of person.

Moreover, the absence of legal aid to enable him to be represented at such a means inquiry, where he risked being deprived of his liberty, was a breach of his right to a fair trial under article 6 of the Convention.

The European Commission of Human Rights decided by 12 votes to six that there had been a violation of the rights of the applicant, Stephen Andrew Benham, under article 5, paragraph 1 of the European Convention on Human Rights; by 17 votes to one that there had been a violation of article 5, paragraph 5; and by 15 votes to three that there had been a violation of article 6, paragraph 3(c). The case has now been referred to the European Court of Human Rights.

THE FACTS: The applicant, a UK citizen born in 1966, lived in Wimborne, Dorset. In March 1990 he became subject to the community charge (poll tax). On 21 August 1990, Poole Magistrates Court made a liability order in the sum of £355, including £20 costs,in respect of his unpaid community charge.

On 25 March 1991, the applicant was summonsed to appear before the same court for an inquiry, under reg 41 of the Community Charge (Administration & Enforcement) Regulations 1989 (SI 438), into his means and the reasons for his failure to pay the charge.

The justices found the applicant was unemployed, had been refused income support, had no personal assets or income and had failed to pay anything towards the community charge. They found his failure to pay was due to his culpable neglect "as he clearly had the potential to earn money to discharge his obligation to pay". They committed him to prison for 30 days. The applicant was unrepresented at that hearing.

He appealed by case stated and (in order to get bail) applied for judicial review. He got legal aid and was represented. The Queen's Bench Divisional Court (Independent, 18 October 1991) decided to proceed on the appeal and allowed it, concluding there was insufficient evidence for a finding of culpable neglect, and the decision to commit the applicant was wrong since a committal order should only be made where a person could pay and there was no other way of inducing him to do so.

The Convention: Article 5 provided by paragraph 1: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law". By paragraph 5: "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

Article 6 guaranteed the right to a fair trial, and provided by paragraph 3: "Everyone charged with a criminal offence has the following minimum rights: ... (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 DECISION: The commission, in its report, said that if detention was to be lawful,it must essentially comply with national law and the substantive and procedural rules thereof. Despite the requirements of the 1989 Regulations, the justices failed to conduct an adequate inquiry into whether the applicant's failure to pay the charge was due to culpable neglect, and so an important condition precedent to the power to make a committal order was lacking. His detention was therefore unlawful and in breach of article 5, paragraph 1.

Since he was unable, under UK law, to bring any proceedings by which he could make an enforceable claim for compensation, there had also been a violation of article 5, paragraph 5. Finally, for the purposes of article 6, the phrase "criminal charge" neednot refer exclusively to an offence known to a state's domestic criminal law. It could include tax enforcement proceedings with a punitive element.

In any case, the severity of the penalty imposable warranted classifying the "of-fence" with which the applicant was charged as criminal under the Convention. But whatever legal aid was available to him at the means inquiry, it was inadequate to provide the representation necessary in the "interests of justice" where the immediate deprivation of liberty was at stake. That was a violation of article 6.

Paul Magrath, Barrister.