EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Applications Nos. 26701/95 and 27771/95

Peter Wood and Peter Davy

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 July 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27 ) 3

A. The particular circumstances of the case

(paras. 17-26)              3

B. Relevant domestic law and practice

(para. 27-28) 4

III. OPINION OF THE COMMISSION

(paras. 29-41)              5

A. Complaints declared admissible

(para. 29) 5

B. Point at issue

(paras.  30) 5

C. As regards Article 6 of the Convention

(paras. 31-40)              5

CONCLUSION

(para. 41) 6

APPENDIX (I): PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF APPLICATION No. 26701/95 7

APPENDIX (II): PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF APPLICATION No. 27771/95 12

APPENDIX (III): FINAL DECISION OF THE COMMISSION AS TO THE                                                              ADMISSIBILITY OF THE APPLICATIONS                           15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicants are United Kingdom citizens. Mr Wood was born in 1946 and resides in Bradford. Mr Davy was born in 1969 and resides in Harlington .  He was represented before the Commission by Turberville Woodbridge , solicitors of Uxbridge .

3. The applications are directed against the United Kingdom.  The respondent Government were represented by Martin Eaton, Agent.

4. The cases concern the applicants' complaints that legal aid was not available to them in proceedings before Magistrates' Courts where each of the applicants, separately, was committed to a term of imprisonment for failure to pay community charge (poll-tax).  The applicants invoke Article 6 of the Convention.

B. The proceedings

5. Application No. 26701/95 was introduced on 4 May 1994 and was registered on 14 March 1995.  Application No. 27771/95 was introduced on 6 April 1995 and was registered on 30 June 1995.

6. On 29 November 1995 (in Application No. 27771/95) and on 15 May 1996 (in Application No. 26701/95) the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice to the respondent Government of the applicants' complaints under Article 6 of the Convention.  It declared the remainder of the applications inadmissible.  The Commission did not request written submissions pending the outcome of the case of Benham v. the United Kingdom before the Court.

7. On 2 July 1996 the Commission invited the respondent Government to submit written observations on the admissibility and merits of the applications.

8. The Government's observations were submitted on 8 November 1996. The applicant in Application No. 26701/95 replied on 17 December 1996.  The applicant in Application No. 27771/95 replied on 10 March 1997, after an extension of the time-limit.

9. On 2 July 1997 the Commission decided, pursuant to Rule 35 of its Rules of Procedure, to join the two applications and declared the remainder of the applications admissible.

10. The text of the Commission's final decision on admissibility was sent to the parties on 18 July 1997 and they were invited to submit such further information or observations on the merits as they wished.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

13. The text of this Report was adopted on 1 July 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's final decision on the admissibility of the applications, and its partial decisions in each of the applications  are annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a. Application No. 26701/95

17.   At the relevant time the applicant was unemployed.

18. On 31 March 1994 the applicant was arrested and brought to a police station.  While at the police station he allegedly signed a form requesting legal assistance.

19. Shortly thereafter the applicant was brought before the Bradford Magistrates' Court, where it was explained to him that his arrest was in connection with his failure to pay community charge.  The applicant again requested legal assistance.  The Court interrupted the hearing and allowed some time for the applicant to obtain the assistance of a solicitor.  The applicant was contacted by a solicitor, who told him that she was dealing only with criminal matters and could not represent him in his case.  Upon the resumption of the hearing, the solicitor appeared before the Court and explained that she was unable to assist the applicant.

20. The Court continued the hearing.  The applicant stated that he was homeless, unemployed and that he was in receipt of income support.  The Court committed the applicant to 21 days in prison for failure to pay community charge.

21. The applicant served 21 days in prison.  Later he allegedly contacted a solicitor and inquired whether he could obtain legal aid to challenge the lawfulness of his detention, but was told that legal aid was not available.

b. Application No. 27771/95

22. At the relevant time the applicant was unemployed.

23. In December 1993 he was summoned to appear before Uxbridge Magistrates' Court for non-payment of the community charge.  He was committed to prison for 42 days on 25 February 1994, the term of imprisonment being suspended.

24. The applicant was again summoned to the Court on 29 July 1994: he paid arrears which had accrued, and the Court re-suspended the committal warrant.  On 28 October 1994 the Court ordered that the matter be adjourned for two weeks until 11 November 1994 in order for the applicant to produce evidence of his financial situation.

25. On 11 November 1994, even though the applicant was in a position to pay the arrears, the Court made a committal order against him and he served the term of imprisonment.

26. Legal aid was not available in these proceedings and the applicant was not represented.

B. Relevant domestic law and practice

27. Neither the civil nor the criminal legal aid scheme provides for full representation before the magistrates in community charge commitment proceedings.  The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation. An extension of the costs limit can be granted by the Legal Aid Board.  Assistance by way of Representation ("ABWOR") enables the court, in limited circumstances, to appoint a solicitor who happens to be within the court precincts for purposes other than the provision of ABWOR to represent a party who would not otherwise be represented.  The appointment may be made either of the court's own motion or on application by a solicitor.  The court is under no obligation to advise a party of the possibility of an appointment.  The Duty Solicitor Scheme, which provides representation to accused in criminal cases before magistrates, does not extend to community charge proceedings.

28. Under Regulation 41(7) of the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) a term of imprisonment for default in payment of community charge cannot exceed three months.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

29. The Commission declared admissible the complaint of Mr Wood that he did not have legal aid and was thus unable to defend himself in the proceedings before the Bradford Magistrates' Court; and the complaint of Mr Davy that legal aid was not available to him in the proceedings before the Uxbridge Magistrates' Court in his case.

B. Point at issue

30.  Accordingly, the point at issue in the present case is whether there has been a violation of Article 6 of the Convention.

C. As regards Article 6 of the Convention

31.  Article 6 of the Convention, insofar as relevant, provides as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...

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;

..."

32. Mr Wood submits that in the space of one hour he was "taken from the street", brought before a court, and sent to prison without having been provided with legal assistance. Mr Wood states that it is wrong to bring someone before a court and send him to prison while refusing legal assistance.  He considers that if he had been legally represented he might not have gone to prison.

33. Mr Davy alleges a violation of Article 6 paras. 1 and 3 of the Convention, referring generally to the case of Benham v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III no. 10, p. 738). 

34.  The Government admit, with reference to the same judgment of the Court, that in the applicants' cases there has been a violation of Article 6 paras. 1 and 3 of the Convention.

35.  The Commission recalls that an issue going to the merits of a case has to be examined independently of the attitude of the respondent State (Eur. Court HR, H. v. France judgment of 24 October 1989, Series A no. 162, p. 20, para. 47; No. 28858/95, Dec. 25.11.96, D.R. 87, p. 130).

36.  The Commission recalls the Court's finding in the Benham judgment (loc. cit., para. 56) that paragraph 3 of Article 6 of the Convention is applicable to proceedings in the United Kingdom before a Magistrates' Court for failure to pay community charge.

37.  Examining the applicants' complaints under Article 6 paras. 1 and 3 (c) of the Convention, the Commission notes that at the relevant time the applicants were unemployed (see paras. 17 and 22) and that it has not been alleged that either of them had sufficient means to pay for legal representation.

38.  The Commission must only determine, therefore, whether the interests of justice required that the applicants be provided with free legal assistance (cf. Benham v. the United Kingdom judgment, loc. cit., para. 60). In answering this question, regard must be had to the severity of the penalty at stake and the complexity of the case (Eur. Court HR, Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, pp. 17-18, paras. 32-38).

39.   The Commission notes that the proceedings in which the applicants were committed to terms of imprisonment for failure to pay community charge were identical to those in the Benham v. the United Kingdom case (loc. cit.).  The proceedings resulted in the applicants' imprisonment, which could have been ordered for a term of up to three months (see para. 28). Also, the application of the relevant substantive domestic law involved the determination of questions of some complexity, such as the issue whether or not there had been a culpable neglect (cf. the Benham judgment, loc. cit., paras. 61 and 62).

40.  The Commission finds therefore that the interests of justice required that the applicants be provided with free legal representation during the proceedings before the Magistrates' Courts.  However, as in the Benham case, no legal aid for representation in court was available to the applicants (see paras. 19, 26 and 27).

CONCLUSION

41.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3 (c) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary             President

             to the First Chamber               of the First Chamber