R Liberty v Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 17 June 2019 |
| Neutral Citation | [2019] EWHC 1532 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 June 2019 |
| Docket Number | Case No: CO/4111/2018 |
[2019] EWHC 1532 (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/4111/2018
and
Mr Jamie Burton (instructed by Liberty) for the Claimant
Mr Martin Chamberlain QC and Mr Malcolm Birdling (instructed by the Government Legal Department) for the Defendant
The Interested Parties did not attend and were not represented.
Hearing date: 20 March 2019
Approved Judgment
This is the substantive hearing of a claim brought by Liberty for judicial review of the decision dated 20 July 2018 by the Director of Legal Aid Casework (“the Decision”) confirming his earlier decision dated 24 May 2018 refusing to grant civil legal aid to Ms Sarah Ward, the first interested party, to enable her to pursue her statutory application to quash prohibitions contained in a public spaces protection order made by the Borough of Poole (“the Borough”), the second interested party, on 13 March 2018 (“the PSPO”) under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).
Ms Ward is seeking to challenge the validity of the PSPO under section 66 of the 2014 Act (“the Section 66 Challenge”) on the basis that the PSPO unlawfully targets rough sleepers and therefore the Borough did not have the power to make it. Ms Ward is represented in the Section 66 Challenge by Liberty.
Permission to bring this claim was granted by Swift J, after a hearing on 15 January 2019, by his order sealed on 18 January 2019.
The issues
In the Decision, the Director refused Ms Ward's application for legal aid on the basis that:
i) legal services to support the Section 66 Challenge are not “civil legal services” described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and
ii) the application did not meet the merits criteria set out in the Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104 (“the 2013 Regulations”).
In his Summary Grounds for Contesting the Claim, the Director indicated that he did not rely on the second of the two bases set out above. I only need, therefore, to consider whether the Director was right to refuse on the first basis, which is, in essence, whether the application is within scope of civil legal aid.
It is common ground that there are two limbs to the scope issue, namely, whether:
i) the Section 66 Challenge is not “judicial review” within the meaning given to that term in para 19(10) of Part 1 of Schedule 1 to LASPO; or
ii) the proposed proceedings do not have the potential to produce a “benefit” for Ms Ward within the meaning given to that term in para 19(3) of Part 1 of Schedule 1 to LASPO.
In the Decision, the Director concluded that the Section 66 Challenge is not “judicial review” within the meaning of para 19(10) and that the Section 66 Challenge does not have the potential to produce a benefit for Ms Ward and is therefore excluded from the scope of civil legal aid by para 19(3).
Para 19(10) defines “judicial review” as follows:
“‘judicial review’ means –
(a) the procedure on an application for judicial review (see section 31 of the Senior Courts Act 1981), but not including the procedure after the application is treated under rules of court as if it were not such an application, and
(b) any procedure in which a court, tribunal or other person mentioned in Part 3 of this Schedule is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review.”
The question in this case is whether the Section 66 Challenge falls within clause (b) of the definition of “judicial review” in para 19(10). That, in turn, depends on whether section 66 of the 2014 Act is an enactment that requires the court “to make a decision applying the principles that are applied by the court on an application for judicial review”.
Accordingly, the two issues in this case may be stated as follows:
i) Does section 66 of the 2014 Act require the court to make a decision applying the principles that are applied by the court on an application for judicial review?
ii) Does the Section 66 Challenge have the potential to produce a “benefit” for Ms Ward within the meaning of para 19(3) of Part 1 of Schedule 1 to LASPO?
The factual background
The factual background is that in early 2017 the Borough proposed to make a public spaces protection order for Poole town centre that would prohibit rough sleeping. In December 2017, however, the Home Office issued revised Guidance that made it plain that such orders could not be used to target homeless people or rough sleepers.
After consultation, the Borough, notwithstanding opposition, made the PSPO, replacing the explicit prohibition of rough sleeping with prohibitions that would, in the view of Liberty and Ms Ward, have a comparable negative impact on the homeless and rough sleepers, including a prohibition on begging, leaving unattended personal belongings such as bedding or bags in a designated area or causing an obstruction in a doorway to commercial premises, public buildings, car parks or other public areas. The PSPO came into effect on 16 April 2018.
Ms Ward approached Liberty for assistance in challenging the PSPO. With the assistance of Liberty, on 9 May 2018 Ms Ward applied for legal aid to bring the Section 66 Challenge, the deadline for issuing it being 25 May 2018.
On 24 May 2018 the Director refused Ms Ward legal aid on the grounds that I have already summarised. On 30 May 2018 Ms Ward sought a review of the Director's initial refusal of legal aid. On 20 July 2018 the Director issued the Decision, confirming that refusal on the same grounds.
Notwithstanding the Director's initial refusal of her application for legal aid on 24 May 2018, Ms Ward made an application to initiate the Section 66 Challenge on 25 May 2018, in order to preserve her position.
Finally, for completeness, I note that on 30 May 2018 Ms Ward made an application for exceptional case funding (“ECF”) under section 10 of LASPO in relation to the Section 66 Challenge. Ms Ward's application for ECF was refused on 15 June 2018 and, after review, that refusal was confirmed by the Director on 20 July 2018. No issue arises as to that refusal in these proceedings.
The legal framework for civil legal aid
Before LASPO, legal aid funding in the United Kingdom was governed by the Access to Justice Act 1999 (“the 1999 Act”), which established the Legal Services Commission (“the LSC”). The LSC was charged with the creation of the Community Legal Service. Under section 6(6) of the 1999 Act, legal aid for certain types of services was excluded by reference to a list of services in Schedule 2 to the 1999 Act. Exceptional funding was possible under section 6(8)(b) of the 1999 Act in certain cases that were otherwise specifically excluded.
Under section 8 of the 1999 Act the LSC was required to prepare a code (“the Funding Code”) setting out the criteria according to which it would decide whether to fund or continue to fund legal services as part of the Community Legal Service. Section 8 also set out various factors that the LSC should consider in settling its criteria for funding and provided that, before preparing the Funding Code, the LSC should undertake such consultation on the Funding Code as appeared to it to be appropriate. Section 9 of the 1999 Act provided for approval of the Funding Code by the Lord Chancellor and for approval by Parliament via the affirmative resolution procedure, subject to a fast-track process in certain circumstances.
On 16 July 2009 the Ministry of Justice published a consultation paper, produced jointly by the Ministry and the LSC, entitled “Legal Aid: Refocusing on Priority Cases” (Consultation Paper CP 12/09, Ministry of Justice, July 2009) (“CP 12/09”), inviting comments on a range of proposals to change the legal aid funding rules for civil and criminal cases. The stated intention was to refocus limited civil and criminal legal aid resources on priority cases. After the consultation, the Lord Chancellor approved amendments to the Funding Code which came into force on 1 April 2010. The revised Funding Code included the following provision at para 7.2.4:
“ Client interest
Investigative help will be refused unless the proceedings have the potential to produce real benefits for the applicant, for the applicant's family or for the environment. However funding will not automatically be withdrawn if the applicant ceases to have a direct personal interest during the course of the proceedings.”
The revised Funding Code included an identical provision at para 7.3.4 save that the words “Investigative help” were replaced by “Full representation”.
The background to these provisions was explained in CP 12/09, in part 3 under the heading “Legal Aid for judicial review” at para 3.2 under the heading “Personal benefit from the proceedings”:
“An underlying principle of [the 1999 Act] is that the claimant has a direct interest in and will personally benefit from the action. The Act is not intended to provide funding for purely representative litigation.
Section 4.5 of the Funding Code's standard criteria sets out that ‘an application will be refused unless it is for the benefit of a client who is an individual …’ This should make clear that proceedings cannot be brought about matters to which the applicant has no connection or direct interest. However, there have been cases where applicants have sought funding about matters of principle, on behalf of other people they do not know, or with regard to decisions to...
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