ARTICLE

Committal, representation and legal aid

Blake J felt compelled to say in King’s Lynn and West Norfolk BC v Bunning [2013] EWHC 3390 (QB); [2015] 1 WLR 531 at [27] that the drafting of the current legal aid regulations is “likely to give rise to very real difficulty within the [legal] profession in knowing how to apply for legal aid for contempt proceedings in the High Court and the judiciary in knowing how to determine such applications until the matter is clarified.” McCombe LJ in Brown v LB Haringey [2015] EWCA Civ 483 noted that Blake J’s hope had not been fulfilled 1½ years later and stated that the “legislation is disgracefully complex.”

Committal proceedings, i.e. proceedings to commit a person for contempt of court, are quasi-criminal – they may be conducted in civil courts in order to enforce civil orders but involve the criminal standard of proof and criminal sanctions, namely fines or imprisonment. The Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248; [2007] 2 FLR 1133 at [9(ii) and 23] set out the following principles:-

1. Committal proceedings constitute a criminal charge for the purposes of Article 6 of the European Convention on Human Rights.
2. Therefore, a defendant to committal has the right in Art.6(3)(c) “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
3. Where deprivation of liberty is at stake, the interests of justice in principle call for legal representation: Benham v UK (1996) 22 EHRR 293.
4. However, this is not an unlimited right to representation, e.g. if a defendant unreasonably fails to co-operate with whatever legal assistance is offered or refuses it.
5. Absent such unreasonable behavior or circumstances of extreme urgency, if a defendant is unrepresented, an adjournment should be granted to allow representation to be obtained.
6. It will rarely be possible to argue that representation would have made no difference – even in a case where breaches are admitted, representation will be needed so as to assist the judge in considering the appropriate disposal. In Bank of Ireland v Shah and Dubash [2015] EWCA Civ 1018 the Court of Appeal held that the failure of the High Court to invite mitigation or enquire as to the possibility of representation on mitigation weighed in the balance when considering whether to reduce sentence on appeal.

The provision of legal aid to pay for representation in civil and criminal proceedings is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Prior to LASPO, committal proceedings were regarded as a form of civil procedure for the purposes of legal aid. However, under LASPO, they have now been incorporated into criminal legal aid (Lord Chancellor’s Guidance under LASPO s.4, paragraph 3.2).

 “Civil legal services” are defined in LASPO section 8(3) as 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 which govern criminal legal aid.

“Criminal proceedings” are defined in section 14, including—

(g)             proceedings for contempt committed, or alleged to have been committed, by an individual in the face of a court, and

(h)            such other proceedings, before any court, tribunal or other person, as may be prescribed.

Committal proceedings would commonly not come within sub-section (g). For example, in Bunning, the alleged contempt was breach of an injunction against using certain land for residential purposes contrary to planning requirements. Therefore, it is necessary to look at sub-section (h). Reg.9 of the Criminal Legal Aid (General) Regulations 2013 provides for a long list of proceedings which are prescribed as criminal proceedings for the purposes of s.14(h), including:-

(v)             any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.

Applying Hammerton v Hammerton, committal proceedings come within reg.9(v). In Bunning, Blake J held this applied in the High Court. In Brown, the Court of Appeal held it applies equally in the county court.

Under LASPO s.16 representation is to be available to an individual in such proceedings, subject to a determination by the “relevant authority” that they qualify. Under ss.18 and 19, the relevant authority is the Legal Aid Agency, unless the court is authorised to make the determination under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013. Regs.6-8 provide for the Crown Court, High Court and Court of Appeal to make a determination but not the county court. Therefore, in relation to the county court, the Legal Aid Agency should make the determination (cf. Brown where they refused to do so).

Under reg.4 of the Determinations Regulations an application to the High Court or the Court of Appeal for a determination under s.16 must be made orally to the court or in writing to an officer of the court in a form specified by the Lord Chancellor. Unfortunately, no such form has been created. Fortunately, in Bunning Blake J held that the terms of a form cannot govern how applications should be decided and, in any event, a written application is not mandatory given that an application may also be made orally.

There is a greater problem with the Determinations Regulations in relation to the High Court. Reg.5 says that, when the court makes a determination under s.16, it must issue a representation order recording this but that is subject to regs.6-8. However, reg.7(2) says that the High Court may make a determination for the purposes of proceedings in the High Court only under s.14(a) to (g) or reg.9(r) of the General Regulations, i.e. s.14(h) and reg.9(v) are not included. Blake J held in Bunning that the regulations cannot restrict the power in the Act to make a determination and, in the event of a conflict, the statute prevails. In this case, reg.7(2) does not limit the court’s power under s.16.

In summary, a defendant in committal proceedings should be represented. If they are not, the court should enquire as to why not. Unless it is the defendant’s own lack of co-operation which has resulted in the lack of representation or the circumstances are urgent, proceedings should be adjourned for an opportunity to get representation. This is the case even where the alleged contempt is clear or admitted or mitigation is the only remaining issue. Legal aid should be available, particularly if there is any possibility of imprisonment. If the matter is in the High Court or the Court of Appeal, the court itself determines any application for legal aid. If it is in the county court, the application should be made to the Legal Aid Agency.