Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26701/95 Application No. 27771/95

by Peter WOOD by Peter DAVY

against the United Kingdom against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 4 May 1994 and

6 April 1995 by Peter WOOD and Peter DAVY against the United Kingdom

and registered on 14 March and 30 June 1995 under files Nos. 26701/95

and 27771/95 respectively;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 November 1996 and the observations in reply submitted by the

applicants on 17 December 1996 and on 10 March 1997 respectively;

Having deliberated;

Decides as follows:

THE FACTS

The applicant in Application No. 26701/95 is a United Kingdom

citizen born in 1946 and residing in Bradford.

The applicant in Application No. 27771/95 is a United Kingdom

citizen born in 1969 and residing in Harlington. Before the Commission

he is represented by Messrs. Turberville Woodbridge, solicitors of

Uxbridge.

The facts, as submitted by the parties, may be summarised as

follows.

A. Particular circumstances of the case

a. Application No. 26701/95

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.

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.

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.

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

At the relevant time the applicant was unemployed.

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, suspended.

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.

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.

Legal aid was not available in these proceedings and the

applicant was not represented.

B. Relevant domestic law and practice

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.

COMPLAINTS

The applicant in Application No. 26701/95 complains under

Article 6 of the Convention that in the space of one hour he was "taken

from the street", brought before a court, and sent to prison without

having been able to defend himself. Thus, he was refused legal

assistance.

The applicant in Application No. 27771/95 alleges a violation of

Article 6 of the Convention, referring generally to the case of Benham

v. the United Kingdom (Eur. Court HR, judgment of 10 June 1996).

PROCEEDINGS BEFORE THE COMMISSION

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.

On 29 November 1995 (in Application No. 27771/95) and on 15 May

1996 (in Application No. 26701/95) the Commission took partial

decisions communicating to the respondent Government the applicants'

complaints under Article 6 of the Convention and declaring 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.

On 2 July 1996 the Commission invited the respondent Government

to submit written observations on the admissibility and merits of the

applications.

The Government's written 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.

THE LAW

1. The Commission, having regard to the similarities of the

applications, finds it convenient to join them in accordance with

Rule 35 of its Rules of Procedure.

2. The applicants allege violations of Article 6 (Art. 6) of the

Convention because of the absence of legal aid before the Magistrates'

Courts.

The Government and the applicant in Application No. 27771/95

agree that based on the Court's judgment in Benham v. the United

Kingdom there has been a breach of Article 6 paras. 1 and 3

(Art. 6-1+6-3) taken together.

The applicant in Application No. 26701/95 submits, inter alia,

that if he had been legally represented he might not have gone to

prison and that it is wrong to bring someone before a court and send

him to prison while refusing legal assistance.

Having examined these complaints, the Commission finds that they

cannot be regarded as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and that no other

ground for declaring them inadmissible has been established. The

Commission considers that the determination of these complaints should

depend on an examination of the merits.

For these reasons, the Commission,

DECIDES TO JOIN APPLICATIONS Nos. 26701/95 AND 27771/95;

unanimously,

DECLARES THE REMAINDER OF THE APPLICATIONS ADMISSIBLE,

without prejudging the merits of the cases.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WOOD AND DAVY v. THE UNITED KINGDOM

WOOD AND DAVY v. THE UNITED KINGDOM

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