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King's Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB)

Judgment in respect of an application for exceptional funding for legal aid in order to obtain legal representation in proceedings concerning alleged contempt of court.

Neutral Citation Number: [2013] EWHC 3390 (QB)
Case No: HQ12X01303


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 7 November, 2013

Before :

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Between :

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LEGAL AID AGENCY Interested party
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Adam Tear Solicitor Advocate instructed by Duncan Lewis for the Defendant
Mr Michael Rimer employed barrister for the Interested Party

Hearing dates: 30 October 2013
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The Honourable Mr Justice Blake :

1. On the 29 March 2012 Mr Justice Foskett made an order against Patricia Bridges and persons unknown restraining them from using certain land in the area of Marshland Saint James, Wisbech for  residential use without the express grant of planning permission.  The claimant contends that the defendant was made aware of the order and is living on the land for residential purposes in breach of the order and commenced proceedings in July 2013 for contempt against her and her estranged partner. Those proceedings have been adjourned until 18 November.

2. The defendant has been endeavouring to obtain legal representation for the contempt hearing. The present application arises out of the difficulties encountered in processing such an application with the Legal Aid Agency (LAA) who has appeared before me as an interested party. In essence there was uncertainty whether the contempt proceedings should be classified as civil proceedings and an application for exceptional funding made to the Director of the Agency or criminal proceedings, where any application is to be made to the court.

3. On 24 October 2013 Mr Justice Dingemans directed that the papers be served on the agency and that they be invited to attend at the adjourned hearing of the defendant's application to assist the court. The matter was put over to 30 October.

4. On the 29 October 2013 Mr Rimer, an employed barrister and member of the legal team in the LAA head office submitted a skeleton argument that in summary indicated that the court was invited to grant a representation order to the defendant so that she may be represented at the next hearing in the committal proceedings. Mr Rimer also appeared to assist the court on 30 October.

5. At the conclusion of the hearing on 30 October 2013 I made an order granting legal representation in favour of the defendant Ms Bunning.  I now give my reasons for doing so.

6. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (The Act) came into force on 1 April 2013. There is no doubt that under the legal regime in force before that date proceedings for committal for breach of an order of the court would have been regarded as quasi-criminal in nature but a form of civil procedure for the purposes of legal aid. People seeking legal representation made an application to the Legal Services Commission that would have been considered under paragraphs 3A-048 and 3C-026 of the then Funding Code Manual along with paragraphs 3C-61. 

7. The defendant submits that it is far from clear that the position has changed  since the 1 April and observes that the most recent advice he has been given by the LAA  that an application should be made to the court using the criminal legal aid form (CRM 14)  is:-

i) not clearly set out in the terms of the Act;

ii) not forewarned by any explanatory notes to the Act or the implementing regulations;

iii) not readily accommodated within the language of some of the Regulations; and is

iv) inconsistent with the contents  and the guidance in CRM 14.

8. The LAA, by contrast, submits that the previous law was more complex in its application and the matter has now been clarified and simplified by deeming quasi-criminal proceedings (including those being brought against the defendant) as criminal for the purpose of legal aid.  In the course of his oral submissions Mr Rimer drew attention to the non statutory guidance issued by the Lord Chancellor (paragraph 3.2 given in Part B of Volume 3). This reads as follows:-

"Under Section 14 of the Act, criminal proceedings are defined to include proceedings before any court for dealing with an individual accused of an offence or for dealing with an individual convicted of an offence (include proceedings in respect of a sentence or order).  In addition, a range of other proceedings come within the definition of criminal either because they are listed in Section 14 of the Act or because they are proscribed as criminal for this purpose under the Criminal Legal Aid (General) Regulations 2013 SI2014/9 Regulation 9. Note that quasi criminal proceedings, where the applicant for funding is facing penalties that are considered as criminal penalties in ECHR terms, which previously had their own case category under the funding code have now been incorporated into criminal legal aid. "

9. I have been persuaded by the submissions of the LAA and I have made an order granting the defendant legal aid. However, as the relevant provisions are somewhat obscure, and the matter is not addressed in the current edition of the White Book and is of potential wider significance to the judiciary and users of the courts, I reserved judgment on the reasons for my conclusions.

10. As the Lord Chancellor's current guidance suggests, section 14 of the Act identifies a number of proceedings as criminal proceedings for this part of the Act. Amongst the proceedings so identified are proceedings for contempt committed, or alleged to be been committed, by an individual in the face of the court (see s.14(g)). This is not the form of contempt that this defendant faces. Mr Tear submits that if Parliament has specifically included one form of contempt of court, then the exclusion of the other form must be seen as significant.

11.  At the end of the list of sub sections there then follows section 14 (h) that also classes as criminal 'such other proceedings, before any court, tribunal or other person as may be prescribed.' The reference to 'tribunal' is sufficient to alert the informed reader that 'criminal' proceedings for this purpose were intended to be wider than is ordinarily the case, as criminal offences are not usually prosecuted before tribunals. To discover what other proceedings have been prescribed as criminal it is then necessary to examine the Criminal Legal Aid (General) Regulations 2013 SI 2013 No 9.

12.  Regulation 9 of the General Regulations sets out a long list of proceedings considered criminal for the purpose of section 14 (h) of the Act.  For example it identifies as criminal proceedings giving rise to orders under the Football Spectators Act, the Protection from Harassment Act, the Crime and Disorder Act, the Anti-Social Behaviour Act, the Sexual Offences Act, the Violent Crime Reduction Act, the Tribunal Courts and Enforcement Act and other similar measures. Despite twenty-two sub-paragraphs specifying particular kinds of proceedings, the draftsman has not identified committal proceedings for breach of an order at court as criminal proceedings.  However Regulation 9(v) reads as follows:-

"Any other proceedings that involve the determination of a criminal charge for the purpose of Article 6(1) of the European Convention on Human Rights."

13. The LAA identifies this head of the Regulations as relevant to the present case. Article 6(3) of the European Convention of Human Rights states that:

'everyone charged with a criminal offence has the following minimum rights :  …….(c) to defend himself in person through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free in the interests of justice require'. 

14. Mr Rimer refers me to a decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248 per Lord Justice Moses at [9] to the effect that at committal proceedings (in that case in the Family Division for breach of an injunction granted in the course of family proceedings) are proceedings that involve the determination of a criminal charge within the meaning of the jurisprudence of the European Court of Human Rights. In doing so the Court of Appeal approved the decision of the Family Court in Re K (contact: committal order) [2003] 1 FLR 277 at [21] p 282.

15. In these circumstances it is not necessary for this court to review the jurisprudence of the European Court of Human Rights or to reach its own independent conclusion upon how the Strasbourg Court would classify proceedings for committal for disobedience to a court order. The guiding principles have been given in Benham v United Kingdom [1996] 22 EHRR 293 at 324. It is clear that the European Court examines whether proceedings give rise to a criminal charge, independently from the way that proceedings are characterised in national law generally.

16.  I am satisfied that regulation 9(v) refers to the jurisprudence discussed in Hammerton v Hammerton and there is no material difference between committal proceedings for breach of a court order in the Family and Queens Bench Division.

17. Before moving on from them, regulation 21 Criminal Legal Aid (General) Regulations should be noted. This states that for the purpose of a determination under Section 16 of the Act making representation available to an individual for the purpose of criminal proceedings is taken to be the interests of justice when the proceedings are before the High Court.

18. Section 16(1) of the Act provides that:-

"Representation for the purpose of criminal proceedings is to be available under this path to an individual if –

a) The individual is a specified individual in relation to proceedings, and

b) The relevant authority has determined (provisionally or otherwise) that the individual qualifies such representation in accordance with this part (and has not withdrawn the determination).'

Section 16 (6) defines 'specified individual' and s. 16 (6) (b) refers to those concerned in proceedings prescribed by s. 14 (h) of the Act.

19. 'Relevant authority' is defined by Sections 18, 19 or 20.  Section 19 (1)  is head 'Determinations by court' and states that:

'Regulations may –

a) provide that a court before which criminal proceedings take place, or are to take place, is authorised to determine whether an individual qualifies under this Part for representation and for the purposes of criminal proceedings on a prescribed prescription and

b) make provision about the making and withdrawal of such determinations by a court'

Other things that regulations may do are set out in sub-sections (2) to (6).

20. The regulations to which s. 19(1) of the Act makes reference are the Criminal Legal Aid (Determination by a Court and Choice of Representative) Regulations 2013 SI 2013 No 614. Regulation 4 (2)  provides as follows:-

'An application for a determination under Section 16 of the Act ……..made to the High Court or the Court of Appeal must be made-

(a) orally to the court; or

(b) in writing to an officer of the court.' 

In respect of applications made in writing to an officer of the Court, regulation 4 (3) provides that an application 'must be made in a form specified by the Lord Chancellor.'

21. I understand that no form has been created for use for an officer of the High Court to consider a written application for legal representation in committal proceedings for breach of a court order. The defendant has been encouraged by the Agency  to apply using Form CRM14 but I accept the submissions of Mr Tear made on her behalf that that form is inappropriate as presently drafted, in particular:-

i) it makes no reference to proceedings in the High Court  in the case type box at the beginning of the form;

ii) it asks whether the offence charged is summary  only at  question 19;

iii) it seeks information about the interests of justice test in section 23, that is irrelevant to High Court proceedings;

iv) the High Court is not referred to as one of the courts for which the form may be used save in respect of appeal by way of case stated to the High Court (see section 34 of the form).

22. However, the terms of the form cannot govern how applications for criminal legal aid should be decided. I observe:

i) I have not been informed of any regulation that requires an applicant to use this form when applying in writing to an officer of the court in High Court proceedings;

ii) in any event it is clear that a written application is not mandatory and an application can be made orally to the court;

iii) there is no provision in Section 19 for regulations to restrict or cut down the duty on the Court where it is the appropriate authority to ensure that a representation order is made where the test for granting it is otherwise met.

23. More problematic is regulation 5 of the Determination Regulations taken together with regulation 7. Regulation 5 (1) provides that

'When the court makes a determination under section 16 of the Act in accordance with any of regulations 6 to 8, the court must –

(a)  issue a representation order recording that determination and

(b). Send a copy of the representation order to the individual and any provider named in the representation order.'

24. Regulation 7 is headed 'Determination by the High Court'. Regulation 7 (1) in terms applies where an individual seeks an order for the purpose of criminal proceedings before the High Court in relation to an appeal way of case stated from a decision at a magistrates court or the Crown Court.  That is not this case.  Regulation 7(2) provides:

"On the application of an individual, or its own motion, the High Court make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of proceedings before the High Court, or proceedings before the Supreme Court on appeal from the High Court, described in –

a) Section 14  (a) to (g) of the Act other than proceedings under paragraph (1): or

b) regulation 9(r) of the General Regulations."

It is this sub-regulation that has caused difficulty in the present case. The defendant is seeking representation for the purpose of proceedings before the High Court but the proceedings in which she seeks representation do not fall within either limb because her proceedings are under section 14(h) of the Act and it is regulation 9  (v) of the General Regulations that governs her application and this is excluded.

25. If the High Court when making a determination on an application made to it under regulation 4 is bound by regulation 5 to apply regulation 7(2), there is a problem in its ability to grant the order made.

26. I accept Mr Rimer's submissions on the first difficulty the defendant identified in her submissions (see [10] above).  There is a particular reason why Section 14(g) of the Act distinguished between committals in the face of the court where a judge may need to act summarily and speedily and secure for a non-party is represented for the purpose of considering whether a contempt had been committed and what the penalty should be and other committals where proceedings are extant and a person is brought before the court by civil process. However, neither his written nor oral submissions were able to satisfactorily explain to me why regulation 7 (2) is drafted in the way it is excluding regulation 9 (v) of the General Regulations.

27. I consider that the present drafting of that Regulation combined with the terms of the prescribed form CRM 14 are likely to give rise to very real difficulty within the profession in knowing how to apply for legal aid for contempt proceedings in the High Court and the judiciary in knowing how to determine such applications until the matter is clarified.  I would hope that following this judgment  thought can be given  to making  appropriate changes to both so that applicants consulting the Regulations will not also have to read this  judgement to make sense of them, assuming that it has done so.

28. Mr Rimer made further submissions on this question after the short adjournment when he had an opportunity to obtain specific instructions from the LAA. In the end he submits that Regulation 7 (whatever purpose it may serve in its present form) does not prevent the High Court determining an application made to it for legal representation in proceedings for committal other than in the face of the Court.

29. I agree.  Ultimately my reason for this conclusion is a short one.  Section 16(1) of the Act requires that representation for the purpose of criminal proceedings is to be available to the individual if they are a specified individual. The defendant is a specified individual. Regulations made under s.19 (1) of the Act are designed to facilitate the discharge of this duty rather then define or restrict it. If there were to be any conflict between the regulation and the primary statute the later would prevail.

30. Any conflict can be avoided by reading regulation 5 as requiring an order to be made when the court proceeds under regulations 6 or 7, but not preventing the court making an order in other cases where a regulation 4 application has been made. The source of the court's duty in determining other cases is the scheme of the Act itself and the provisions of the General Regulations.

31. Accordingly I am satisfied:-

i) The proceedings for which legal representation is sought are criminal proceedings within the meaning of the current legislation: see s.14 (h) of the Act and regulation 9 (v) of the General Regulations.

ii) The defendant is a specified individual within the meaning of s.16 (1) of the Act and 'representation is to be available'.

iii) The relevant authority for determining whether representation is to be granted is the High Court.

iv) An application was made to the High Court on 23 October 2013.

v) Regulation 21 of the General Regulations provides that such representation is in the public interest.

I am informed that there are no financial requirements for a High Court application for legal aid. The court therefore grants the defendant's application and names Duncan Lewis as the litigator and Adam Tear as the advocate. I do not propose to consider the issue raised in Mr Tear's supplementary written submissions as to whether the order granted should take effect from 11 September 2013 when the application was first made to the LAA.