The All England Lawn Tennis Club (Championships) Ltd v Luke McKay
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 15 November 2019 |
| Neutral Citation | [2019] EWHC 3065 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-002461 |
| Date | 15 November 2019 |
[2019] EWHC 3065 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: QB-2019-002461
Edward Rowntree (instructed by Kerman & Co.) for the Claimants
Michael Rimer for the Legal Aid Agency
The Defendant appeared as a litigant in person
Hearing date: 8 November 2019
Approved Judgment 2 of 2
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In a judgment handed down on 30 October 2019 (neutral citation: [2019] EWHC 2973 (QB)), I drew attention to an issue about the correct procedure for determining applications for legal aid by those facing applications in the High Court to commit them to prison for contempt because they have failed to comply with an order. As I indicated in that judgment, there is no real doubt that such individuals are entitled to legal aid. The question is who has power to grant it. The Legal Aid Agency (‘LAA’) says that it is the Director of Legal Aid Casework (‘the Director’), but this is contrary to what was said by Blake J in King's Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531, a decision that has been followed or at least assumed to be correct in subsequent decisions of the High Court and Court of Appeal. I indicated at [28] of my earlier judgment that this ‘ lack of clarity’ as to who has power to grant legal aid ‘ creates a real problem for individuals like the Defendant who seek legal representation and for courts dealing with civil contempt cases’. I noted that the issue needed to be determined and invited the LAA to make submissions.
Mr Michael Rimer of the LAA filed helpful written submissions and also appeared on 8 November 2019 to make brief oral submissions. I accepted Mr Rimer's assurance that Mr McKay is entitled to legal aid without the need for any assessment of his means or of the merits of his case; and that applications of this kind were normally determined within 48 hours. At the conclusion of the argument, I declined to make a representation order. I indicated, however, that I would set out my reasons in a reserved judgment. My reasons are as follows.
The statutory framework
The availability of legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘ LASPO’). That distinguishes between civil legal aid (which is provided for in ss. 8–12) and criminal legal aid (which is provided for in ss. 13–20). ‘Civil legal services’ are ‘ any legal services other than the types of advice, assistance and representation that are required to be made available under sections 13, 15 and 16 (criminal legal aid)’. Criminal legal aid is available in ‘criminal proceedings’ as defined in paragraphs (a)-(h) of s. 14. Among the types of proceedings there set out are some that might not in other circumstances be regarded as criminal. In particular, paragraph (g) covers ‘ proceedings for contempt committed, or alleged to have been committed, by an individual in the face of the court’ (not the kind of contempt at issue in these proceedings) and paragraph (h) covers ‘ such other proceedings, before any court, tribunal or other person, as may be prescribed’.
Regulation 9 of the Criminal Legal Aid (General) Regulations 2013 (SI 2013/9: ‘the General Regulations’) prescribes a long list of proceedings as criminal for the purposes of s. 14(h) of LASPO. At the end of this list, there is a catch-all provision in paragraph (v): ‘ any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention of Human Rights’. This provision was presumably regarded as necessary to ensure compliance with the UK's international obligations, given that under Article 6 ECHR certain procedural guarantees apply whenever a ‘criminal charge’ is being determined; that ‘criminal charge' for these purposes has a meaning autonomous of the classification given by domestic law; and that committal proceedings, because their potential consequences include imprisonment, fall within that meaning: Hammerton v Hammerton [2007] 2 FLR 1133, [9] (Moses LJ).
Representation for criminal proceedings is governed by s. 16 of LASPO. That provides, insofar as material, as follows:
‘(1) Representation for the purposes of criminal proceedings is to be available under this Part to an individual if—
(a) the individual is a specified individual in relation to the proceedings, and
(b) the relevant authority has determined (provisionally or otherwise) that the individual qualifies for such representation in accordance with this Part and has not withdrawn the determination).
…
(6) In this section—
“the relevant authority”, in relation to a specified individual and criminal proceedings, means the person who is authorised by or under section 18, 19 or 20 to determine (provisionally or otherwise) whether the individual qualifies under this Part for representation for the purposes of the proceedings;
“specified individual” means—
(a) in relation to criminal proceedings mentioned in any of paragraphs (a) to (g) of section 14, an individual mentioned in that paragraph in relation to those proceedings, and
(b) in relation to criminal proceedings prescribed by regulations under section 14(h), a description of individual specified in the regulations in relation to those proceedings.’
Section 17(1) of LASPO explains how the ‘relevant authority’ is to determine eligibility for legal aid. There are two tests that must be satisfied – the ‘means’ test (set out in s. 21 and regulations made under it) and the ‘interests of justice’ test. Both tests, however, may be deemed by regulations to be satisfied in certain categories of case: in relation to means, see s. 21(3); in relation to the ‘interests of justice’, see s. 17(4). In criminal proceedings other than those in the magistrates’ court or Crown Court, the relevant authority must make a determination that the individual's financial resources are such that he or she is eligible: see reg. 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471: ‘the Financial Resources Regulations’). So, the means test is automatically satisfied. Making representation available to an individual for the purposes of criminal proceedings is taken to be in the interests of justice when the proceedings are before the High Court (among other courts): see reg. 21 of the General Regulations. So, the ‘interests of justice’ test is also automatically satisfied.
Section 18 of LASPO deals with determinations by the Director, who is authorised by s. 18(1) to determine ‘ whether an individual qualifies under this Part for representation for the purposes of criminal proceedings, except in circumstances in which a court is authorised to make a determination under regulations under section 19’.
Section 19 of LASPO deals with determinations by a court. It provides insofar as material as follows:
‘(1) 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 for the purposes of criminal proceedings of a prescribed description, and
(b) make provision about the making and withdrawal of such determinations by a court.’
The combined effect of ss. 18 and 19 of LASPO is twofold. First, the Director has power to make a determination only where no court has such a power. Second, a court has power to make a determination only where authorised to do so by regulations made under s. 19.
The power conferred by s. 19(1) of LASPO has been exercised to make the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013/614: ‘the Determinations Regulations’). Part 2 of the Determinations Regulations deals with determinations by a court under s. 16 of LASPO. Regulation 4 provides as follows:
‘4.—Applications
(1) An application for a determination under section 16 of the Act (representation for criminal proceedings) made to the Crown Court must be made orally to the court.
(2) 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.
(3) An application for a determination made in accordance with paragraph (2)(b) must be made in a form specified by the Lord Chancellor.’
Regulation 5 provides as follows:
‘ 5.—General
(1) 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.
(2) Where these Regulations provide that a court is authorised to make a determination under section 16 of the Act, the power to make a determination may be exercised by the court or an officer of the court.’
Regulation 6 deals with determinations by the Crown Court. Regulations 7 and 8 deal with determinations by the High Court and Court of Appeal respectively. They provide as follows:
‘ 7.—Determinations by the High Court
(1) On the application of an individual, the High Court may make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of criminal proceedings before the High Court in relation to an appeal by way of case stated from a decision of the magistrates' court or the Crown...
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