King's Lynn and West Norfolk Council v Michelle Paula Bunning Legal Aid Agency (Interested party)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 07 November 2013 |
| Neutral Citation | [2013] EWHC 3390 (QB) |
| Docket Number | Case No: HQ12X01303 |
| Court | Queen's Bench Division |
| Date | 07 November 2013 |
[2013] EWHC 3390 (QB)
The Honourable Mr Justice Blake
Case No: HQ12X01303
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
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
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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."
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'.
Mr Rimer refers me to a...
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Chelmsford County Court v Simon Abraham Ramet
...and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King's Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB), to which I would invite the attention of all family judges and practitioners. 34 There i......
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Coveris Flexibles UK Ltd v Mr Simon Brears
...are entitled to ‘criminal legal aid’ rather than ‘civil legal aid’. See, for example, King's Lynn and West Norfolk Council v Bunning [2015] 1 WLR 531; Brown v London Borough of Haringey [2015] EWCA Civ 483, in respect of a committal application brought in the County Court for breach of an......
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The Secretary of State for Transport v Elliott Cuciurean
...aid is governed by LASPO. The relevant provisions were considered in detail by Blake J in King's Lynn and West Norfolk BC v Bunning [2013] EWHC 3390 (QB), [2015] 1 WLR 531 (subsequently approved by this court in Haringey LBC v Brown [2015] EWCA Civ 483, [2015] 1 WLR 542). In short, the c......
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Devon County Council v Teresa Kirk
...and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King's Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB), [2014] 2 All ER 1095, 2 to which I would invite the attention of all family judges and ......