CEDH · CASELAW;REPORTS;ENG — 29 novembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 19380/92                        Stephen Andrew Benham                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 29 November 1994)                          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. 17-38) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-29). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 30-38). . . . . . . . . . . . . . . . . . .5     III. OPINION OF THE COMMISSION      (paras. 39-80) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaints declared admissible           (para. 39). . . . . . . . . . . . . . . . . . . . .8        B.    Points at issue           (para. 40). . . . . . . . . . . . . . . . . . . . .8        C.    As regards Article 5 para. 1 of the Convention           (paras. 41-52). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 52). . . . . . . . . . . . . . . . . . . . 10        D.    As regards Article 5 para. 5 of the Convention           (paras. 53-58). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 58). . . . . . . . . . . . . . . . . . . . 11        E.    As regards Article 6 of the Convention           (paras. 59-77). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 77). . . . . . . . . . . . . . . . . . . . 13        F.    Recapitulation           (paras. 78-80). . . . . . . . . . . . . . . . . . 14                          TABLE OF CONTENTS                                                             Page   CONCURRING OPINION OF Mr. N. BRATZA . . . . . . . . . . . . 15   PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF Mr. H. G. SCHERMERS. . . . . . . . . . . . . . . 19   PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF Mrs. G. H. THUNE joined by Mr. I. CABRAL BARETTO.. . . . . . . . . . . . . . 20   PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF Mr. B. MARXER. . . . . . . . . . . . . . . . . . 21   DISSENTING OPINION OF Mr. F. MARTINEZ . . . . . . . . . . . 22   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 24   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 26   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 applicant is a United Kingdom citizen, born in 1966.   He lives in Wimborne in Dorset, and was represented before the Commission by Mr. J. Wadham, the Legal Director of Liberty.   3.    The application is directed against the United Kingdom.   The respondent Government were represented initially by Mrs. A.F. Glover, of the Foreign and Commonwealth Office, London, and latterly by Mr. M. R. Eaton, of the same office.   4.    The case concerns the applicant's detention for failure to pay community charge (poll tax) and the related proceedings.   The applicant invokes Articles 5 and 6 of the Convention.   B.    The proceedings   5.    The application was introduced on 20 September 1991 and registered on 21 January 1992.   6.    On 12 October 1992 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 17 February 1993. The applicant replied on 13 May 1993.   On 8 April 1993 the Commission granted the applicant legal aid for the representation of his case.   8.    On 30 August 1993 the Commission decided to hold a hearing of the parties.   The hearing was held on 13 January 1994.   The Government were represented by Mrs. A.F. Glover, Agent, Mr. D. Pannick, Q.C., Counsel, and Ms. A. Jenkins and Ms. E. Hutchinson, Advisers, of the Lord Chancellor's Department.   The applicant was represented by Mr. J. Wadham, of Liberty, and Mr. B. Emmerson, Counsel.   9.    On 13 January 1994 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 26 January 1994 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   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 in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:        MM.   C.A. NØRGAARD, President           A. WEITZEL           F. ERMACORA           E. BUSUTTIL           G. JÖRUNDSSON           H.G. SCHERMERS           H. DANELIUS      Mrs. G.H. THUNE      MM.   F. MARTINEZ           C.L. ROZAKIS      Mrs. J. LIDDY      MM.   J.-C. GEUS           B. MARXER           G.B. REFFI           M.A. NOWICKI           I. CABRAL BARRETO           N. BRATZA           E. KONSTANTINOV   13.   The text of this Report was adopted on 29 November 1994 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.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   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   17.   On 31 March 1990 the applicant became subject to the community charge (poll tax).   On 21 August 1990 the Poole Magistrates' Court ordered the issue of a liability order in respect of the applicant's unpaid community charge.   The liability order was for £355.00, including £20.00 costs.   18.   On 25 March 1991, in answer to a summons, the applicant appeared at the Poole Magistrates' Court for an inquiry to be made into his means and the reasons for his failure to pay the community charge.   The magistrates found, inter alia,:        (a) that the applicant, who had 9 "O" level GCSE certificates,      had had employment in early 1990, but had left voluntarily in      March 1990 after being asked to undertake work he did not like;        (b) that he had not had gainful employment since early 1990;        (c) that he had applied for income support but had been refused;        (d) that he stated that he had no personal assets or income;        (e) that he had failed to pay anything towards the community      charge from the first demand up to the making of the liability      order; and          (f) that he had had a motor vehicle during the relevant part of      1990 and it had been taxed and insured.   19.   The magistrates concluded that the applicant's 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".   They considered that his conduct "over the many months from the time the obligation to pay arose until the making of the liability order on 21 August 1990 was blameworthy, there being an obvious want of attention to what ought to have been done".   They issued a warrant committing the applicant to prison for 30 days.   The applicant was not represented.   20.   On 27 March 1991 a solicitor went on the record as representing the applicant and submitted a written application to the court requesting the magistrates to state a case and to grant bail.   An emergency (civil) legal aid certificate was obtained for the request for a stated case.   Legal aid was not available for the application for bail.   The bail application was refused on 28 March 1991.   21.   On 4 April 1991 an application for leave to apply for judicial review and for bail was lodged in the High Court.   Bail was granted on 5 April 1991 and the application for leave was adjourned, to be granted on 16 April.   22.   The magistrates stated a case on 3 July 1991.   It set out the facts, summarised the evidence, gave the magistrates' conclusions, and put the following three questions:        "(1) Whether the following findings of fact can be supported by      the evidence before us, namely that the appellant's failure to      pay which led to the liability order being made was due to his      culpable neglect.        (2) Whether, before issuing the said warrant, we conducted an      adequate inquiry into the appellant's means.        (3) Whether we acted reasonably in exercising our discretion to      issue the said warrant."   23.   The Divisional Court heard the appeal by way of case stated and the application for judicial review on 7 and 8 October 1991.   The applicant was represented and had legal aid.   24.   Mr. Justice Potts, giving the Divisional Court's judgment of 8 October 1991, stated that the Court considered it right to proceed with the appeal by way of case stated rather than the judicial review application.   He found that the justices had had to determine two issues.   One concerned the issue of culpable neglect, the second concerned the applicant's inability to pay the community charge.   25.   As to culpable neglect in the applicant's not paying the charge between April 1990 and August 1990, Mr. Justice Potts noted that on the evidence before the justices the applicant at the relevant time was not working, had no income and no personal assets.   He continued:        "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' findings of culpable neglect cannot      be sustained on the evidence adduced before them. ..."   26.   As to the applicant's inability to pay, Mr. Justice Potts found that the decision to commit was wrong.   The justices had found that the applicant was without means, and it had been established in cases under the General Rate Act 1967 that a committal order should be made only where the ratepayer could pay and there was no other way of inducing payment.   Mr. Justice Potts recalled that Regulation 42 (3) of the Community Charges (Administration and Enforcement) Regulations 1989 made clear that there were alternatives to prison, and considered that it was incumbent on the justices to consider those alternatives. Specifically, he referred to the possibility of fixing a term of imprisonment and postponing the issue of a warrant until such time and on such conditions as the court thought fit, and refusing to issue a warrant and letting the authority renew their application at a later date on the ground that the debtor's financial circumstances had changed.   27.   Mr. Justice Potts answered each of the magistrates' three questions in the negative.   28.   Lord Justice Nolan, agreeing with Mr. Justice Potts, added that the applicant had been required to pursue both an appeal by way of case stated and an application for judicial review because he could otherwise not have made a bail application to the High Court until the magistrates had stated their case.   He expressed understanding for the applicant's position, and stated that the "wasteful duplication of expense and effort [was] plainly unsatisfactory".   He continued "[an] inquiry into the best means of avoiding it in future cases is called for, and we shall ask for it to be carried out as a matter of urgency".   29.   The Order made on the case stated provides that the "adjudication of the Dorset Justices be set aside".   No order was made on the judicial review application, and legal aid taxation was ordered for both avenues of appeal.   B.    Relevant domestic law and practice   (a)   Community Charge Regulations   30.   Regulation 41 of the Community Charges (Administration and Enforcement) Regulations 1989 ("the 1989 Regulations") provides as follows:        "(1) Where a charging authority had sought to levy an amount by      distress under Regulation 39, the debtor is an individual, and      it appears to the authority that no (or insufficient) goods of      the debtor can be found on which to levy the amount, the      authority may apply to a Magistrates' Court for the issue of a      warrant committing the debtor to prison.        (2)   On such application being made, the court shall (in the      debtor's presence) inquire as to his means and inquire whether      the failure to pay which led to the liability order concerned      being made against him was due to his wilful refusal or culpable      neglect.        (3)   If (and only if) the court is of the opinion that his      failure was due to his wilful refusal or culpable neglect it may      if it thinks fit - (a) issue a warrant of commitment against the      debtor, or (b) fix a term of imprisonment and postpone the issue      of a warrant until such time and on such conditions (if any) as      the court thinks just.        (7)   The order in the warrant shall be that the debtor be      imprisoned for a time specified in the warrant which shall not      exceed 3 months ..."   (b)   Review of administrative decisions and decisions of inferior      courts   31.   In McC v. Mullan the House of Lords held that magistrates acted without jurisdiction or in excess of jurisdiction and would be liable in damages where an individual could show that the magistrates had no jurisdiction over the cause at all, that they exercised their powers in a procedural manner that involved a gross and obvious irregularity, or that the order of the court was not based on any proper foundation of law because of failure to observe a statutory condition precedent ([1985] AC 528).   32.   McC v. Mullan was a Northern Irish case in which magistrates had made an order sending the juvenile defendant to a training school as he had failed to attend an attendance centre.   The defendant was not represented and the magistrates did not inform him of his right to apply for legal aid.   Article 15 (1) of the Treatment of Offenders (Northern Ireland) Order 1976 provided that magistrates were not to pass a sentence of imprisonment or detention on an unrepresented juvenile defendant unless inter alia he had been informed of his right to apply for legal aid and had had the opportunity to do so, and had refused or failed to apply.   The House of Lords found that although the magistrates had jurisdiction to try and convict the defendant and to order his detention, the omission to inform him of his right to legal aid amounted to a failure to fulfil a statutory condition precedent to the making of the training school order.   Accordingly, the magistrates acted "without jurisdiction or in excess of jurisdiction" within the meaning of Section 15 of the Magistrates Courts (Northern Ireland) Act 1964 and so were liable in a civil action for damages.   33.   In a case concerning rates, the predecessor to the community charge (R. v. Manchester City Magistrates Court, ex parte Davies [1989] 1 All ER 30), the Court of Appeal found that as the magistrates there had failed to make proper inquiry as to whether the ratepayer's failure to pay rates was due to wilful refusal or culpable neglect, they had failed to observe a statutory condition precedent, even though some inquiry as to the applicant's finances was made (p. 98 c).   The magistrates therefore acted outside or in excess of their jurisdiction and so were not protected by Sections 44 and 55 of the Justices of the Peace Act 1979.   The magistrates were liable in damages for the applicant's unlawful imprisonment.   Lord Justice Neill, in his judgment, referred to the third category of cases mentioned in McC v. Mullan.   He said that in "this third category are cases where, though the justices have 'jurisdiction of the cause' and may have conducted the trial impeccably, they may nevertheless be liable in damages on the ground of acting in excess of jurisdiction if their conviction of the defendant or other determination does not provide a proper foundation in law for the sentence or order made against him" (p. 97 c).   34.   By virtue of Section 111 of the Magistrates' Court Act 1980 a party to proceedings before a Magistrates' Court may "question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...".   (d)   Magistrates' liability for damages for false imprisonment   35.   Prior to 1 January 1991, Sections 44 and 45 of the Justices of the Peace Act 1979 (provisions which were formerly contained in the Justices Protection Act 1848) protected a magistrate for acts done by him in the execution of his duty with respect to any matter within his jurisdiction unless it was proved that the act was done maliciously and without reasonable and probable cause.   The protection was withdrawn for acts done outside or in excess of jurisdiction by Section 45.   36.   On 1 January 1991 Section 108 of the Courts and Legal Services Act 1990 entered into force.   Replacing Sections 44 and 45 of the Justices of the Peace Act 1979, it provides, inter alia, that an action lies against a Justice of the Peace (Magistrate) who acts beyond jurisdiction if, and only if, it is proved that he acted in bad faith.   (c)   Legal aid   37.   Neither the civil nor the criminal legal aid scheme provides for full representation before magistrates for proceedings for commitment to prison for non-payment of the community charge.   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.   38.   Assistance by way of Representation ("ABWOR") enables the court, in certain 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. Regulation 7 (1) (b) of the Legal Advice and Assistance (Scope) Regulations 1989 provides that ABWOR applies:        "at a hearing in any proceedings in a magistrates' court to a      party who is not receiving and has not been refused      representation in connection with those proceedings, where the      court -      (i)   is satisfied that the hearing should proceed on the same           day;      (ii) is satisfied that that party would not otherwise be           represented; and      (iii)requests a solicitor who is within the precincts of           the court for purposes other than the provision of           ABWOR in accordance with this sub-paragraph, or           approves a proposal from such a solicitor, that he           provides that party with ABWOR ..."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   39.   The Commission has declared admissible the applicant's complaints concerning his detention for failure to pay the community charge, his inability to bring an action for damages in respect of that detention, and the absence of legal aid before the magistrates.   B.    Points at issue   40.   The following are the points at issue in the present application:   -     whether there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention;   -     if so, whether there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention; and   -     whether there has been a violation of Article 6 (Art. 6) of the Convention.   C.    As regards Article 5 para. 1 (Art. 5-1) of the Convention   41.   Article 5 para. 1 (Art. 5-1) of the Convention provides, so far as relevant, as follows:        "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; ..."   42.   The applicant considers that his detention was neither "in accordance with a procedure prescribed by law" within the first paragraph of Article 5 para. 1 (Art. 5-1) nor "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) or (b) (Art. 5-1-b).   He submits that the High Court expressly found that the procedure followed by the magistrates was not "prescribed by law", and considers that the decision of the High Court is in any event - in the absence of any mechanism for bringing proceedings for unlawful detention - in substance a finding that the detention was not lawful.   He has submitted two opinions in support of his contentions, from Professor A.W. Bradley and from Mr. R. Gordon, an author and practising barrister.   The opinions are in agreement that the magistrates in the present case acted outside their jurisdiction, and that the applicant's detention was unlawful.   43.   The Government submit that the detention was "in accordance with a procedure prescribed by law" in that the procedure was set out in Regulation 41 of the 1989 Regulations, and that it was "lawful" in that the magistrates had power to send the applicant to prison if they were of the opinion that his failure to pay was due to culpable neglect, and the only complaint is that the statutory criteria were wrongly applied. They add that the decision of the Divisional Court does not indicate that the detention was unlawful in domestic law, considering that the magistrates' order was valid unless and until set aside; that it is not clear in domestic law whether the setting aside of an order as invalid will result in the acts done prior to the setting aside becoming unlawful, and that the Divisional Court in the present case did not make any order on the judicial review application.   They contend that if the applicant were to be correct on the alleged unlawfulness then detention subsequent to any first instance decision would be unlawful whenever the decision was overturned on appeal.   44.   The main issue to be decided in connection with this complaint is whether the applicant's detention from 25 March 1991 to 5 April 1991 was "lawful".   45.   The Commission notes that it is a peculiarity of the domestic law of the United Kingdom that appeals against the decisions of inferior courts and administrative bodies and tribunals have developed in a way which frequently combines the question of whether the decision was right in law with the question whether the body had jurisdiction to take that decision.   Thus in the case of McC v. Mullan the House of Lords found that the magistrates' failure to inform the juvenile defendant of his right to have, or at least to apply for, legal aid was a breach of a statutory condition precedent to jurisdiction to send him to a training school.   The magistrates were liable in damages. Similarly, in R v. Manchester City Magistrates' Court ex parte Davies, the Court of Appeal found that a proper inquiry as to whether the ratepayer's failure to pay his rates was due to "wilful refusal or culpable neglect" was a statutory condition precedent to the issue of a committal warrant for non-payment of rates.   The magistrates were again liable in damages.   46.   In the present case the applicant initially made his appeal by way of case stated, and made an application for leave for judicial review only in order to be able to put his bail application before the High Court as soon as possible.   This approach was vindicated by the Divisional Court which commented on the unsatisfactory nature of the bail procedure, and dealt only with the appeal by way of case stated. The principles which can be drawn from the cases referred to above remain relevant for the present case, as Section 111 of the Magistrates' Court Act 1980 provides that a case may be stated where allegations are made that the decision was "wrong in law or is in excess of jurisdiction".   47.   If detention is to be lawful, including the observance of a procedure prescribed by law, it must essentially comply with national law and the substantive and procedural rules thereof (see, in the context of Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 21, para. 63; similar criteria were applied to detention within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 22, para. 41).   48.   Although the domestic courts in the present case did not make a formal finding that the applicant's detention was in excess of jurisdiction and therefore unlawful - indeed, in the light of the restriction on actions against magistrates brought about by Section 108 of the Courts and Legal Services Act 1989 there was no scope for such a determination - the Commission finds that the weight of argument before it tends to the view that, in domestic law, the applicant's detention was not lawful.   49.   Finally in this respect, the Commission recalls that the Convention imposes requirements over and above the substantive and procedural rules of national law in ascertaining the compatibility of deprivation of liberty with Article 5 (Art. 5), namely that the individual must be protected from arbitrariness (cf, in the context of detention under Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court H.R., van der Leer judgment of 21 February 1990, Series A no. 170, p. 12, para. 22 with further references).   In the present case, notwithstanding the requirements of the 1989 Regulations, the magistrates failed to conduct an adequate inquiry into whether the applicant's failure to pay his community charge was due to culpable neglect, and so an important condition precedent to the power to make a committal warrant was lacking.   50.   The Commission therefore finds that the applicant's detention was not "lawful" within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention. 51.   In these circumstances, the Commission does not find it necessary to determine under which head of Article 5 para. 1 (Art. 5-1), if any, the applicant's detention fell.        CONCLUSION   52.   The Commission concludes, by 12 votes to 6, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.   D.    As regards Article 5 para. 5 (Art. 5-5) of the Convention   53.   Article 5 para. 5 (Art. 5-5) of the Convention provides as follows:        "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."   54.   The applicant considers that the effect of the Divisional Court's judgment in the present case is to amount to a decision that his detention was unlawful, and that Section 108 of the Courts and Legal Services Act 1989 deprived him of a right to sue for unlawful imprisonment in respect thereof.   55.   The Government's primary submission in this respect is that there was no violation of Article 5 para. 1 (Art. 5-1) as the detention was not unlawful, such that Article 5 para. 5 (Art. 5-5) does not require a right to compensation in respect thereof.   They also submit that the intention of Section 108 of the Courts and Legal Services Act is to put magistrates in the same position as judges of the superior courts, namely that they are immune from actions for damages done in their judicial capacity in good faith, even though they act mistakenly or in excess of their powers.   56.   The Commission is not called on in the present case to consider the merits of judicial immunity from suit.   Rather, the question under Article 5 para. 5 (Art. 5-5) of the Convention arises because of the finding of a violation of Article 5 para. 1 (Art. 5-1).   57.   It is not suggested in the present case that the applicant was or is able to bring any proceedings in which he can make an enforceable claim for compensation.   Accordingly, given the Commission's finding that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention, there has also been a violation of Article 5 para. 5 (Art. 5-5).        CONCLUSION   58.   The Commission concludes, by 17 votes to 1, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention.   E.    As regards Article 6 (Art. 6) of the Convention     59.   Article 6 (Art. 6) of the Convention provides, so far as relevant, 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 and public 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 ..."   60.   The applicant submits that the absence of legal aid before the magistrates in making the warrant for the applicant's committal to prison for 30 days was in violation of Article 6 (Art. 6).   He considers that, given the nature of the proceedings and the "penalty" at stake, the proceedings were in fact criminal in character, such that Article 6 para. 3 (c) (Art. 6-3-c) required legal aid to be available. He further considers that, even if the proceedings are not criminal but are civil in character, their complexity and importance call for legal aid to be afforded under Article 6 para. 1 (art. 6-1) of the Convention.   He points out that assistance by way of representation is purely discretionary and requires an initiative by the court rather than the person concerned, and that the Green Form scheme does not provide for representation in court at all.   61.   The Government submit that the proceedings were not "criminal" within the meaning of Article 6 para. 1 (art. 6-1).   They point out that the detention was for failure to comply with a civil liability order, and that such detention does not lead to a criminal record. They consider that the applicant's detention was justified under Article 5 para. 1 (b) (Art. 5-1-b) of the Convention, which recognises the possibility of non-criminal detention, rather than Article 5 para. 1 (a) (Art. 5-1-a).   The Government refer to the case of R v. Highbury Court Magistrates ex parte Watkins, where Mr.   Justice Henry explained that "the proceedings under Regulation 41 are plainly legal proceedings other than criminal proceedings.   They are proceedings for the recovery of an unpaid tax.   Answers to the inquiry as to means and as to why the debtor has not paid her tax do not expose her to proceedings for 'an offence' because it is no crime not to pay your poll tax: that is not a criminal offence any more than non-payment of rates ... was in its time any offence ... .    While imprisonment is punishment, and so in that sense penal, the meaning of 'penalty' in the statute and rule is quite clear from the authorities and is something in the nature of a fine provided for by statute ..."   62.   The Government further submit that, although the liability order made against the applicant on 21 August 1990 determined his civil rights and obligations, the proceedings on 25 March 1991 were simply to enforce that obligation.   63.   The Government consider that, even if the proceedings were "criminal" or "civil" within the meaning of Article 6 (Art. 6), the availability of Green Form assistance and assistance by way of representation together meet the requirements of whichever part of Article 6 (Art. 6) is found to apply.   64.   The Commission recalls that the guarantees of Article 6 para. 3 (c) (Art. 6-3-c) apply only to a person "charged with a criminal offence".   The case law relating to the phrase "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention establishes that the offence need not be one known to domestic law, as the phrase has a meaning autonomous of the intentions of the contracting States (see, for example, Eur. Court H.R., Engel judgment of 8 June 1979, Series A no. 22, pp. 34 - 35, paras. 81 - 82; von Sydow v. Sweden, No. 11464/85, Dec. 12.5.87, D.R. 53, p. 85; Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177, pp. 17 - 18, paras. 30 - 35).   65.   A first criterion is the nature of the matter in domestic law. In the present case, domestic law appears not to regard the inquiry stage of proceedings to enforce a liability order as criminal because, as Mr. Justice Henry said in the case of ex parte Watkins, "it is no crime not to pay your poll tax".   66.   A second criterion is the nature of the offence.   The "offence" in the present case, if it is an offence, is failure to pay the community charge.   The community charge was a form of tax on occupation, and failure to pay it is a matter which can be pursued by the authorities, in this case the local authority.   Tax enforcement proceedings with a punitive element have been considered by the Convention organs as falling within the meaning of a "criminal charge" for the purposes of Article 6 (Art. 6) (Eur. Court H.R., Bendenoun judgment of 24 February 1994, Series A no. 284, paras. 45 - 47).   67.   A third criterion is the severity of the penalty imposable and imposed.   The magistrates had power to order the applicant's committal for up to three months, and did order his committal for 30 days.   The Commission considers that this alone would be sufficiently important to warrant classifying the "offence" with which the applicant was charged as a criminal one under the Convention.   68.   Accordingly, Article 6 para. 3 (c) (Art. 6-3-c) is applicable in this case.   69.   It has not been suggested that the applicant had "sufficient means to pay for legal assistance"; the sole issue under this paragraph is therefore whether the "interests of justice" required that he be given such assistance free.   70.   The Commission notes that there exist in England and Wales two forms of assistance for persons in the applicant's position.   First, the Green Form scheme provides for a limited amount of advice from a solicitor, but does not permit representation before a tribunal.   The Commission finds that such assistance, whilst it may be a help in certain circumstances, cannot constitute the assistance required of Article 6 para. 3 (c) (Art. 6-3-c), which by its very nature requires assistance in court at least.   71.   Secondly, assistance by way of representation ("ABWOR") enables a solicitor who happens to be in court to be called on to assist a party to proceedings before magistrates provided the solicitor was not in court for that very purpose, provided the magistrates consider that the proceedings should proceed the same day, and provided the magistrates consider that they wish to have the assistance of a solicitor under the ABWOR scheme.   The Commission notes that the purpose of ABWOR is to enable magistrates to call on a solicitor who happens to be in court if they feel they need his assistance.   It is not for a defendant to request representation under ABWOR, and an unrepresented defendant will not generally be told of the existence of the scheme.   The applicant was not so told.   A solicitor who represents under the ABWOR scheme is not aware of the background to the case, and may not be familiar with the law involved.   The Commission finds that, although the Commission cannot exclude that where ABWOR is granted it could satisfy the requirements of Article 6 para. 3 (c) (art. 6-3-c), in the present case the mere existence of the scheme cannot satisfy those requirements.   72.   The applicant did not, then, have the benefit or the possibility of free legal assistance before the magistrates on 25 March 1991.   The question remains whether the "interests of justice" required such assistance.   73.   The Commission notes, as the Government submit, that the only issues before the magistrates were the applicant's means and the reasons for his inability to pay.   However, whilst the question of his means may have been a relatively straightforward matter of fact, the question of the reasons for his inability to pay was not.   Questions of what constituted wilful refusal or culpable neglect were far from simple, as can be seen from the case of Davies.   Indeed, the magistrates themselves erred in the present case, as the Divisional Court later held.   Moreover, as the Commission has found above, the finding of wilful refusal or culpable neglect had a crucial bearing on the magistrates' ability to order a warrant for committal.   74.   The Commission further considers that where immediate deprivation of liberty is at stake in criminal proceedings, the interests of justice in principle call for legal representation. The Commission notes that, although legal aid was only available at subsequent stages of the proceedings, the committal warrant had immediate effect: if the order had been suspended pending the outcome of any appeal, considerably less would have been at stake.   The Commission attaches little weight to the fact that at the bail application on 28 March 1991 the applicant was represented, as once the magistrates had made their order it was not likely that they would change their minds on a bail application.   75.   To sum up, on 25 March 1991, the magistrates had before them legal questions of considerable complexity, and an immediate order of imprisonment was at stake and was made.   76.   In these circumstances, the Commission finds that the interests of justice required legal assistance to be afforded to the applicant.        CONCLUSION   77.   The Commission concludes, by 15 votes to 3, that there has been a violation of Article 6 para. 3 (c) (art. 6-3-c) of the Convention.   F.    Recapitulation   78.   The Commission concludes, by 12 votes to 6, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 52).   79.   The Commission concludes, by 17 votes to 1, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 58).   80.   The Commission concludes, by 15 votes to 3, that there has been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention (para. 77).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                    (Or. English)                 CONCURRING OPINION OF MR. N. BRATZA        With some hesitation I have voted in favour of the Commission's conclusion that there has been a violation of Article 5 para. 1 of the Convention in the present case.   My doubts have related to the issue of whether the detention of the applicant was "in accordance with a procedure prescribed by law" and "lawful" within the meaning of para. 1(a) or 1(b) or Article 5.   (I share the view of the Commission that it is unnecessary to decide which of the two sub-paragraphs is relevant to the applicant's detention in the present case, although I tend to the view that para. 1 (b) is the more relevant paragraph, the detention being imposed either for non-compliance with the lawful order of a court, namely the liability order made against the applicant by Poole Magistrates' Court on 21 August 1990, or more probably to secure the fulfilment of the applicant's legal obligation to pay the community charge.)        It is well established that the words "lawful" and "prescribed by law" in Article 5 essentially refer back to domestic law and require that the deprivation of liberty complies with both the substantive and procedural requirements of that law.   It is also, however, clear that the fact that a conviction resulting in the imposition of a custodial sentence is quashed on appeal does not of itself deprive the detention of its "lawful" character for the purposes of para.