R FF v Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 23 January 2020 |
| Neutral Citation | [2020] EWHC 95 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/449/2019 |
| Date | 23 January 2020 |
[2020] EWHC 95 (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 Murray
Case No: CO/449/2019
Mr Tom Hickman QC (instructed by Deighton Pierce Glynn) for the Claimant
Mr Malcolm Birdling (instructed by Government Legal Department) for the Defendant
Hearing date: 6 June 2019
Approved Judgment
By this claim FF, whose identity is protected by an anonymity order, challenges the decision of the Director of Legal Aid Casework (“the Director”) dated 2 November 2018 (“the Decision”) to refuse his application for legal aid in relation to judicial review proceedings that FF wishes to bring against the Secretary of State for the Home Department (“the Secretary of State”).
FF wishes to bring judicial review proceedings against the Secretary of State in order to ensure that she properly and lawfully considers FF's request that Prince Sheikh Nasser bin Hamad Al Khalifa (“the Prince”), the Commander of the Bahraini Royal Guard, be excluded from the United Kingdom. FF has been granted asylum in the United Kingdom on the grounds that he has a well-founded fear of persecution at the hands of the Bahraini authorities.
On 22 May 2019 I granted permission for judicial review of the Decision on a review of the papers. The principal issue in this case also arose in R (Liberty) v Director of Legal Aid Casework (Claim No. CO/4111/2018), which I heard on 20 March 2019 and in respect of which I reserved judgment. That case, however, concerned quite different facts. As of the date of the hearing of this claim, I had not handed down judgment in Liberty, but I expected to do so shortly. I have since done so. The neutral citation for my judgment in that case is [2019] EWHC 1532 (Admin).
The issue
The Director refused FF's application for legal aid in reliance on paragraph 19(3) (“Paragraph 19(3)”) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO”), which excludes from the scope of civil legal aid in relation to any proposed judicial review proceedings that do “not have the potential to produce a benefit for the individual, a member of the individual's family or the environment”.
The principal issue in this case, therefore, is whether the proposed judicial review proceedings that FF wishes to bring against the Secretary of State have the potential to produce a “benefit” for FF within the meaning of that term in Paragraph 19(3). It has not been suggested that the judicial review proceedings have the potential to produce a benefit to a member of FF's family in the absence of a potential for benefit to FF, so it is sufficient to consider whether there is a potential for benefit to FF. It is also not suggested that there is a potential for benefit to the environment.
The factual background
In order to assess whether the judicial review proceedings that FF wishes to bring would produce a benefit for him in the required sense, it is necessary to set out the factual background in some detail. This background is not in dispute. For the following summary I have drawn heavily on the skeleton argument prepared on behalf of FF by Mr Tom Hickman QC. The principal evidence supporting this account are the two witness statements of FF, each dated 1 February 2019, one included in the open bundle prepared for the hearing and one included in a confidential bundle, together with various documents that are in the public domain, to which reference is made below. The need for confidentiality in relation to some of the evidence should be clear from the summary of the factual background below.
FF is a Bahraini citizen. At a certain point, he arrived in the United Kingdom and was thereafter granted asylum.
On 14 February 2011 FF joined thousands of others in a peaceful pro-democracy protest at the Pearl Roundabout in Manama in Bahrain. The protest complained about the failure to implement democratic change in Bahrain. The protest was apparently inspired by the Arab Spring movement, which had resulted in democratic reform in other Arab countries.
FF, along with many others, camped at Pearl Roundabout. He was assaulted when police attacked the protesters. He was arrested and held without charge. He was detained and was abused and tortured by those detaining him. He was released, but then subsequently detained again, held in overcrowded conditions and mistreated. He was convicted by a military court for being involved in the protests.
FF was detained together with protest leaders Sheikh Al-Meqdad and Sheikh Al-Mahroos. He witnessed guards abusing and threatening Sheikh Al-Meqdad. He was eventually released, but Sheikh Al-Meqdad and Sheikh Al-Mahroos remain in detention in Bahrain.
Following his release, FF remained involved with the pro-democracy movement. Following events which threatened his life, he fled Bahrain.
In April 2011 the Prince, who is also Chairman of the Supreme Council for Youth and Sports, stated on Bahraini television that athletes involved in the protests would be punished. It was also reported that the Prince was personally involved in launching an investigation that targeted athletes, through suspension from sports, arbitrary arrests, and detention.
On 16 August 2011 the Bahrain Centre for Human Rights published a news report in which it described systemic torture and mistreatment of protesters. One passage in the report documented beatings administered by the Prince personally.
In 2011 the King of Bahrain commissioned an independent inquiry to report on events of February/March 2011. The Commission of Inquiry published a lengthy report on 23 November 2011. It confirmed the Bahraini Government's use of torture and other forms of physical and psychological abuse on detainees but did not identify any individual perpetrators.
In June 2012 both Sheikh Al-Mahroos and Sheikh Al-Meqdad, who had been convicted of crimes against the State of Bahrain linked to their political activities, gave accounts during their appeal hearings of the Prince having been personally involved in the beatings and torture to which they had been subjected.
On 5 July 2012 the European Centre for Constitutional and Human Rights (“the ECCHR”), which is based in Berlin, submitted a report to the Director of Public Prosecutions (“DPP”) containing evidence implicating the Prince in the torture of detained prisoners in April 2011 and seeking to instigate a criminal investigation in the United Kingdom of the Prince. The ECCHR report was passed by the DPP to the Counter Terrorism Command of the Metropolitan Police Service (“SO15”).
At around the time that the ECCHR report was submitted to the DPP, FF learnt that the Prince was planning to come the United Kingdom for the July 2012 Olympic Games as the head of the delegation sent by the Kingdom of Bahrain.
Through his solicitors, Deighton Pierce Glynn solicitors (“DPG”), FF wrote to the DPP seeking consent, pursuant to section 1(4A) of the Magistrates' Courts Act 1980 (as amended by section 153 of the Police Reform and Social Responsibility Act 2011), to the issue of an arrest warrant in connection with a possible private prosecution of the Prince.
In response to the requests from both the ECCHR and FF, the DPP indicated that, in his view, the Prince would enjoy immunity under international and domestic law from prosecution in this country. Following further correspondence, on 2 October 2012 the DPP set out a statement of reasons for why he contended that the Prince had immunity from prosecution.
On 19 September 2012 the Director agreed to provide FF with legal services in order to pursue judicial review proceedings challenging the DPP's reasons for contending that the Prince had immunity from prosecution.
On 23 October 2012 FF issued judicial review proceedings against the DPP. The Statement of Facts and Grounds filed by FF in respect of those proceedings recorded that FF brought them on his own behalf and in a representative capacity for Sheikh Al Meqdad and Sheikh Al-Mahroos. The documents recorded that both Sheikh Al Meqdad and Sheikh Al-Mahroos had provided information to FF and indicated to him that they wished that claim to proceed.
On 29 January 2013 Foskett J granted permission for the judicial review. On 7 May 2013 Ouseley J directed that certain redacted papers be served on the Prince as an interested party and directed that the case was suitable for a Divisional Court. Both Foskett J and Ouseley J granted certain confidentiality orders to protect the Prince, FF and third parties.
On 19 June 2013 there was a directions hearing before Laws LJ and Wilkie J. As recorded in their judgment (neutral citation: [2013] EWHC 2047 (Admin)), the Court discharged Foskett J's order granting anonymity to the Prince and maintained the order granting anonymity to FF. Redacted papers were served on the Prince, but the Prince indicated that he would not be participating in the proceedings. Subsequent events are recorded in the judgment of Laws LJ ( [2014] EWHC 3419 (Admin)), which was delivered at a hearing held on 7 October 2014, at [3]:
“The case was at length fixed for hearing on 23 October 2013 but adjourned to enable service on the interested party which it was thought would take some time. Many interlocutory steps followed. Further directions were given, not least by Lord Justice Moses and Mr Justice King on 9 May 2014 in particular with a view to protecting the identity of FF and certain third parties. Their identity remains protected by order of the court. At length, after what seems to me a lamentable lapse of time, the case was re-listed for substantive hearing on today's date 7 October 2014....
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FF v Secretary of State for the Home Department
...54 In response to these submissions the claimant draws attention in particular to the conclusions of Murray J in his decision at [2020] EWHC 95 Admin dealing with the refusal of the claimant's application for legal aid to bring this claim. In that connection Murray J concluded at paragraph......