PROCEDURE

The case was referred to the Court on 23 January 1995 by the European Commission of Human Rights (“the Commission“) and on 26 January 1995 by the Government of the United Kingdom of Great Britain and Northern Ireland (“the Government“), within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 19380/92) against the United Kingdom lodged with the Commission under Article 25 (art. 25) on 20 September 1991 by a British national, Mr Stephen Andrew Benham. The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government's application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5 and 6 (art. 5, art. 6) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Macdonald, Mr I. Foighel, Mr L. Wildhaber, Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

The President of the Chamber (Rule 21 para. 6), Mr Bernhardt, through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 27 July 1995 and the applicant's memorial on 7 August 1995.

In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 November 1995. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr M. Eaton, Deputy Legal Adviser, Foreign and Commonwealth Office, Agent, Mr D. Pannick QC, Mr P. Duffy, Counsel, Mr M. Collon, Lord Chancellor's Department, Adviser; (b) for the Commission Mrs J. Liddy, Delegate; (c) for the applicant Mr B. Emmerson Professor A. Bradley, Counsel, Mr J. Wadham Adviser. The Court heard addresses by Mrs Liddy, Mr Emmerson and Mr Pannick.

Following deliberations on 23 November 1995 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 para. 1).

The Grand Chamber to be constituted included ex officio Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the Court, and the other members and substitute judges (namely, Mr B. Repik, Mr F. Gölcüklü, Mr R. Pekkanen and Mr K. Jungwiert) of the Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and (b)). On 5 December 1995, in the presence of the Registrar, the President drew by lot the names of the seven additional judges called on to complete the Grand Chamber, namely Mr F. Matscher, Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr P. Jambrek (Rule 51 para. 2 (c)).

Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicant, the Grand Chamber decided on 26 January 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule 38, taken together with Rule 51 para. 6).

AS TO THE FACTS

I. CIRCUMSTANCES OF THE CASE

On 1 April 1990 Mr Benham became liable to pay a community charge of £325. Since he did not pay it, on 21 August 1990 the Poole Magistrates' Court ordered the issue of a liability order, entitling Poole Borough Council (“the charging authority“) to commence enforcement proceedings against him (see paragraph 19 below, Regulations 29 and 39 (1)).

Mr Benham did not pay the amount owed, and bailiffs visited his parents' house (where he was living), but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt.

Under Regulation 41 of the Community Charge (Administration and Enforcement) Regulations 1989 (“the Regulations“: see paragraph 19 below), if a person is found to have insufficient goods on which to levy outstanding community charge the charging authority may apply to a magistrates' court for an order committing him to prison. On such an application being made, the court must inquire in the presence of the debtor as to his present means and also whether his failure to pay which led to the liability order being made was due to wilful refusal or culpable neglect. The charging authority applied for such an order, and on 25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for the inquiry required by the Regulations. He was not assisted or represented by a lawyer, although he was eligible for “Green Form“ legal advice and assistance before the hearing (see paragraph 29 below), and the magistrates could have made an order for Assistance by Way of Representation (“ABWOR“) if they had thought it necessary (see paragraph 30 below).

The magistrates found that Mr Benham, who had 9 “O“ level General Certificates of Secondary Education, had started a Government Employment Training Scheme in September 1989, but had left it in March 1990 and had not worked since. He had applied for income support, but had been turned down because it is not payable to those who are voluntarily unemployed, and he had no personal assets or income. On the basis of this evidence, the magistrates concluded that his failure to pay the community charge was due to his culpable neglect, “as he clearly had the potential to earn money to discharge his obligation to pay“. Accordingly, they decided that he ought to be sent to prison for thirty days unless he paid what was owing. Mr Benham was taken to Dorchester prison on the same day.

On 27 March 1991 a solicitor went on the record as representing Mr Benham and lodged a notice of appeal by way of case stated (see paragraph 21 below) and an application for bail pending appeal (see paragraph 22 below). Legal aid was obtained for the appeal, but not for the bail application, because it is not available for such proceedings. In the event, the solicitor appeared without payment before the magistrates on 28 March 1991 to apply for bail, but he was unsuccessful.

On 4 April 1991 Mr Benham's solicitor lodged an application for leave to apply for judicial review and for bail in the High Court. He was obliged to ask for judicial review, despite the fact that he had already lodged an appeal by way of case stated, because otherwise he could not have applied for bail in the High Court until the magistrates had stated a case (see paragraph 22 below). Bail was granted on 5 April 1991 and Mr Benham was thus released from prison, having served eleven days.

The Divisional Court heard the appeal by way of case stated and the application for judicial review together on 7 and 8 October 1991 (Regina v. Poole Magistrates, ex parte Benham, 8 October 1991, unreported). Mr Benham was represented and legally aided. The court noted that it had been necessary to apply for judicial review in order to get bail, but that the case stated procedure was more appropriate. Accordingly no order was made on the judicial review application.

Mr Justice Potts in the Divisional Court held that the magistrates had been mistaken in concluding that Mr Benham's failure to pay the community charge had been due to culpable neglect: “In my view this finding was wrong on the evidence available to the justices. In certain circumstances a failure on the part of the debtor to work and put himself in funds to pay the community charge might constitute culpable neglect. In my judgment, however, before such a finding could be sustained, at the very least there would have to be clear evidence that gainful employment, for which he was fit, was on offer to the debtor and that he had rejected or refused that offer. There was no such evidence in this case. In my judgment, the justices' finding of culpable neglect cannot be sustained on the evidence adduced before them.“

In addition, he found that the decision to commit Mr Benham to prison would have been wrong even if there had been evidence of culpable neglect, because he did not have any means with which to pay the debt at the time of the hearing before the magistrates, and because “[s]uch an order is only to be made if payment can be made and there is no other way of inducing the [debtor] to do so“. In the circumstances it was incumbent upon them to consider the alternatives to immediate detention provided for by the Regulations: they could have suspended the term of imprisonment subject to such conditions as they thought fit, or refused to issue a warrant, since the local authority could have renewed their application at a later date if Mr Benham's circumstances had changed (see paragraph 19 below).

Mr Benham was not able to apply for compensation in respect of the time he spent in prison, because he was unable to show bad faith on the part of the magistrates, as was required by section 108 of the Courts and Legal Services Act 1990 (see paragraph 28 below).