M v Director of Legal Aid Casework The Lord Chancellor (1st Interested Party) The Helen Bamber Foundation (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWHC 1354 (Admin) |
| Docket Number | Case No: CO/847/2014 |
| Date | 02 May 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 1354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: CO/847/2014
and
and
Mr Paul Bowen QC and Ms Eloise le Santo (instructed by Bindmans LLP) for the Claimant
Ms Kerry Bretherton (instructed by LAA) for the Defendant
Mr James Eadie QC (instructed by Treasury Solicitor) for the 1 st Interested Party
The 2 nd Interested Party did not appear and was not represented
Hearing dates: 14 March and 14 April 2014
INTRODUCTION
The claimant seeks permission to bring judicial review proceedings in connection with the defendant's decisions of 27 January and 3 February 2014 which refused her civil legal aid. She had sought funding in order to be represented at the hearing of a witness summons at Isleworth Crown Court in which the Crown Prosecution Service ("CPS") were seeking disclosure of her confidential counselling records. Because the dispute concerned no more than £12,000 worth of legal services, and because (as set out in Section 2) there has been a convoluted procedural history which, up to a point, does not reflect well on either side, I was initially inclined to think that this was all an unjustified waste of public money and resources. However, on analysis, the application raises a number of potentially important points.
Having set out the history in Section 2 below, and before coming on to deal with the detail of this application for legal aid, I set out in Section 3 below the general approach of the courts to applications for disclosure of medical records. In Section 4, I set out the legal aid framework and then, in Section 5, the claimant's application for legal aid and the defendant's decisions. At Section 6, I analyse the defendant's application of the merits criteria and, in Section 7, I address the absence – in this case – of an exceptional case determination. Thereafter, in the second part of this Judgment at Section 8, I deal with the separate issue involving the guidance recently issued by the Lord Chancellor ("LC") as to the interplay between Convention rights and the availability of civil legal aid in exceptional cases.
THE HISTORY
The claimant is an Afghan national who fled Afghanistan after being subjected to, or made to witness, extreme violence and abuse. She has been in the United Kingdom for about three years. She does not speak very good English. In 2012 she married a man named C. The marriage only lasted about six months but, during that time, the claimant alleged that Mr C raped her. Mr C is now facing two counts of rape and the trial is due to be heard at Isleworth Crown Court at the end of April.
The Helen Bamber Foundation ("HBF") is a charity providing support and services to victims of torture, cruelty and human rights abuses. The claimant and her family have been provided by HBF with long term support and the claimant herself has had more than twenty counselling sessions with them, some as part of family sessions, and some one-to-one. It appears that a small part of those counselling sessions (the notes of which apparently run to about three or four pages) deal with, or touch on, the claimant's abuse at the hands of her husband.
On 20 December 2013, the Crown Prosecution Service ("CPS") notified the claimant that they were seeking a witness summons in the crown court proceedings so as to gain access to her counselling notes. The summons was general in its nature and sought the notes on the basis that the material therein "might undermine the Crown's case or may support the defence case". The claimant opposed the disclosure of her notes, claiming confidentiality. Accordingly, on 10 January 2014, her solicitors made an urgent application for civil legal aid in order that she could be represented by counsel at the hearing of the summons. That application for exceptional case funding and the defendant's decision(s) to refuse that application are dealt with in greater detail in Section 5 below.
The summons was due to be heard at Isleworth Crown Court on 6 February 2014. Because the claimant's legal aid application was not thought to have been finally resolved by that date, it was adjourned to 14 March 2014.
The defendant's second refusal of civil legal aid was dated 3 February 2014. These judicial review proceedings, challenging the refusal of legal aid, were not issued until 25 February 2014. Although Ms Bretherton sought to criticise the claimant for this delay in commencing proceedings, I do not consider that such criticisms are entirely fair, particularly given the difficult situation in which she and her lawyers found themselves following the refusal of funding. But the lack of speed at the outset certainly made everything very tight. A timetable was set by the Administrative Court in the hope of resolving this claim before the adjourned hearing of the crown court summons on 14 March 2014. Ironically, the Administrative Court hearing (a rolled-up hearing, to deal with both permission and, if granted, the substantive dispute) was fixed for that very day. However, on 14 March 2014, everyone was agreed that this coincidence of timing did not render these judicial review proceedings redundant because, if the defendant's refusal was quashed, funding could still be granted retrospectively. The defendant has now hardened his stance on that issue, a point to which I return at paragraph 54 below.
The Administrative Court hearing on 14 March 2014 was also complicated by the fact that the claimant wished to amend her grounds so as to join the LC as a defendant. My initial view was that this was unnecessary in view of the relatively narrow compass of the defendant's original decision and the challenge to it, but I eventually concluded that, although the LC did not need to be anything other than an Interested Party, potentially important issues had been raised as to his guidance on exceptional case funding (which was said to be "incorrect"), and it seemed sensible and cost effective to deal with those matters as part of the overall dispute between the parties. It was for that reason that, on 14 March 2014, having heard full argument on most of the points arising out of the original application, I adjourned the balance of the hearing until after the LC had had an opportunity to respond to the amended grounds. The second part of the hearing therefore took place, with the LC represented by Mr Eadie QC, on 14 April 2014.
As it happens, the hearing in the crown court on 14 March 2014 was also inconclusive. HHJ Parker QC ruled that four pages of the counselling notes should be disclosed to the CPS but then went on to say that the witness summons could not be executed before 4:00pm on Friday 21 March 2014 and that the claimant could, in the interim, seek an order for non-disclosure of the documents on the grounds of public interest immunity. This was a slightly unusual procedure to adopt: paragraph 8–12 of Archbold 2014 makes clear that a party in the position of the claimant in these proceedings (i.e. a recipient of the summons) is entitled to resist disclosure on public interest immunity grounds without having to issue her own application.
Be that as it may, the claimant made the application for public interest immunity within the prescribed time period. There was then a third hearing, on 3 April, before HHJ Moore, again at Isleworth. The judge looked at the four pages of counselling notes and reviewed the legal authorities. He concluded that the counselling notes were not material evidence because there was nothing in them that would "remotely undermine the prosecution case or strengthen the defendant's case". He therefore found that there was no disclosable material. He went on to find that, if he was wrong about that, the claimant was entitled to claim public interest immunity anyway: that it was not in the public interest to disclose the counselling notes and that to do so would be a disproportionate interference with the claimant's Article 8 rights.
At the hearings on 14 March and 3 April 2014, the claimant was represented by counsel, appearing pro bono, who had also drafted all the necessary paperwork (including skeleton arguments and the application for PII). It is open to debate whether the claimant would have been able properly to participate in that process without that representation.
APPLICATIONS FOR DISCLOSURE OF MEDICAL RECORDS
It is becoming increasingly common for the CPS to issue witness summonses of this kind, seeking medical and other such records concerning a complainant in an assault or sex case. In my experience, these applications are often made somewhat lazily, in the belief that, if there are some records which may have some relevance, the CPS is fulfilling its obligations to the defendant, and to the administration of justice, by issuing the witness summons and then putting the burden of resolving the issues raised onto others (namely the defendant, the complainant and the judge). In my view, considerably greater analysis is required before any such summons is issued. As a general rule it is not good enough, as this witness summons seeks to do, merely to require the documents on the general basis that they might undermine the prosecution or help the defence.
Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 provides as follows:
" Issue of witness summons...
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