Benham v United Kingdom: ECHR 8 Feb 1995

Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by magistrates. The question was whether or not they had acted in excess of jurisdiction. If they had not, the detention was lawful under Article 5 (1) (b). English law distinguished between acts of a Magistrates court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset. The test for deciding whether or not magistrates acted within their jurisdiction was that laid down by the House of Lords in McC v Mullan. The third limb of that test was relevant here, namely that magistrates exceeded their jurisdiction when they made an order which had no foundation in law because of a failure to observe a statutory condition precedent.’ The proceedings for non-payment of the community charge were criminal: ‘the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, the magistrates could only exercise their power of committal to prison on a finding of wilful refusal to pay or of culpable neglect. Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months’ imprisonment, and was in fact ordered to be detained for 30 days. Having regard to these factors, the Court concludes that B was ‘charged with a criminal offence’ for the purposes of Article 6(1) and (3). Accordingly, these two paragraphs of Article 6 are applicable.’
Times 24-Jun-1996, Independent 08-Feb-1995, 19380/92, [1996] ECHR 22, [1996] 22 EHRR 293
Worldlii, Bailii
European Convention on Human Rights 6.1 6.3
CitedMcC v Mullan; In re McC (A Minor) HL 1984
A statutory condition precluded magistrates from making the order they did unless a juvenile offender who was not legally represented had been refused legal aid, or had been informed of his right to apply for it but had refused or neglected to do . .
[1985] AC 528, [1984] 3 All ER 908, [1984] 3 WLR 1227, (1984) 81 Cr App R 54

Cited by:
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
[2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113
CitedHooper v United Kingdom ECHR 16-Nov-2004
The defendant had appeared in court on a charge of assault. The magistrate considered that he might be unruly and withoutmore bound him over to keep the peace. In the absence of any surety, he was committed to custody.
Held: The proceedings . .
Times 19-Nov-04, 42317/98, [2004] ECHR 628
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
[2005] UKHL 1, Times 28-Jan-05, [2005] 1 WLR 350, [2005] 1 All ER 755, 18 BHRC 267, [2005] HRLR 8, [2005] 2 Prison LR 14
CitedGreenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
[2005] UKHL 14, Times 18-Feb-05, [2005] 1 WLR 673
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Times 09-Mar-01, [2001] 1 WLR 1084, [2001] EWCA Civ 281
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Times 21-Oct-02, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27
CitedBarnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
[2014] UKSC 26, [2014] WLR(D) 194, [2014] 2 WLR 1269, UKSC 2013/0006

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.78332