Most solicitors would assume that, if someone were at risk of being sent to prison and could not afford a lawyer, legal aid would be available.

Not so.

Last week the European Court of Human Rights (ECHR), giving judgment in Benham v The UK, ruled that the unavailability of legal aid in such circumstances was a violation of the European Convention on Human Rights.Stephen Benham had left work, had no income or assets and had failed to pay his community charge.

The magistrates concluded that his failure to pay was due to his culpable neglect 'as he clearly had the potential to earn money to discharge his obligation to pay'.

He was not legally represented and was sent to prison.The committal order was subsequently quashed by the High Court, which found no evidence of 'culpable neglect'.

It found that as Mr Benham had no way of paying the charge, the decision of the magistrates to commit at that stage was wrong.In the ECHR, Mr Benham complained that although he had been unlawfully detained under art 5 of the convention, he was not entitled to compensation because the Courts and Legal Services Act 1990 removed the right tosue magistrates for compensation in such circumstances.The ECHR decided that, despite the High Court's decision, it had not been established that the original committal was unlawful and so this part of the application was dismissed.

In other similar cases pending before the ECHR, the Divisional Court has held that the committal was unlawful, making it likely that the court will rule in the applicant's favour.Mr Benham also complained that his right to a fair trial was breached because no legal aid for representation in the magistrates' court was available in such cases, even though he was at risk of losing his liberty.

Civil legal aid is not available in magistrates' courts and criminal legal aid is not available because, for the purposes of domestic law, committal proceedings are not criminal proceedings.

Green form advice and assistance is available but ABWOR is restricted to where a court grants it to a solicitor who is already in the precincts of the court.Mr Benham's argument was accepted by the court unanimously.

This is a very important judgment as it came from the plenary court consisting of 21 judges.Although committal orders by magistrates for failing to pay the community charge are now less frequent, the principle established by this case also applies in other 'non-criminal' procedures in magistrates' courts where imprisonment is regularly a sanction for default but where legal aid for representation is not available.

It would apply in council tax cases because exactly the same procedure exists.

But the principle would also surely apply to fine defaulters, immigration cases, maintenance cases, affiliation orders, and other matters.The Lord Chancellor is currently putting the finishing touches to his white paper on legal aid and I hope it recommends an extension of legal aid for these cases.I am concerned, however, that the debate following the publication of the white paper and the imminent general election may mean that there could be considerable delays before the government takes the necessary action.

Any delay will mean that further violations of the human rights convention will be a regular occurrence in magistrates' courts.

There is no reason why the necessary changes cannot be set in motion immediately and measures adopted in the interim.Solicitors who would like more advice on possible breaches of the convention can contact Liberty at 21 Tabard St, London SE1 4LA; tel 0171 403 3888.

There will be no charge.