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17 DEC 2014

Gudanaviciene: legal aid guidance not compatible with a right to a fair trial

David Burrows

Solicitor Advocate


Gudanaviciene: legal aid guidance not compatible with a right to a fair trial
See also David Burrows' article, Lord Chancellor’s Guidance on Exceptional Case Funding, published 15 June 2015.

Exceptional case determination: Convention breach

R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 affects all applicants for legal aid for any form of civil proceedings, with family proceedings very much included. It was a very careful judgment of the full court (Lord Dyson MR, Richards and Sullivan LJJ). The issue takes an applicant (or his/her adviser) immediately into the murky ‘quasi-legislation jungle’ (per Wade and Forsyth, Administrative Law (11th edn, 2014), at p 732) of statutory guidance. And it reminds the lawyer that every piece of delegated and – as here – semi-delegated legislation must be tested for lawfulness against its primary statutory source.

In Gudanaviciene that statutory source is Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) s 10, which is the get-out-of-gaol-free card for any civil proceedings litigant who can claim that s 10(3) justifies an ‘exceptional case determination’ (ECD), namely a determination by the Legal Aid Agency (LAA) as follows:

(a) that it is necessary to make [civil legal aid] available to the individual under this Part because failure to do so would be a breach of –

(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

Thus s 10(3) explains when an ECD should be made; and that it becomes exceptional not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As Gudanaviciene says bluntly: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. And of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual's Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual's ability to have effective access to justice in relation to it….

If the ‘Director’ – the LAA decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

LAA Guidance

In any decision-making, the LAA case-worker must ‘have regard to guidance given by the Lord Chancellor about the carrying out of those functions’ (LASPO, s 4(2)). The Lord Chancellor has issued guidance to LAA decision-makers in relation to s 10, namely Exceptional Funding Guidance (Non-Inquests) (the Guidance). It is the way case-worker approached that guidance which had enabled Collins J below ( Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin)) to find it unlawful and to direct, as a result, that four legal aid applications should have been granted, and that two should be reconsidered.

But what if the Guidance says something different from the statute? This is where anyone – applicant, lawyer, decision-maker – concerned with the decision made in reliance on the Guidance to check the original statutory power. Don’t worry about the small print, is the message. Read the big print. Go back to the statutory source of the decision-making power.

Gudanaviciene quotes extensively from the Guidance (at paras [11] to [23]), and states the general issues on appeal (as distinct from immigration issues with which the specific appeals were primarily concerned) as: (1) how properly LASPO, s 10(3) should be interpreted; and (2) whether the Guidance is compatible with European Convention 1950 Art 6 and EU Charter of Fundamental Rights Art 47 (the differences between Arts 6 and 47 for purposes of the case were not distinguishable: para [58] and [59]).

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‘Obvious unfairness’

The court’s conclusion on (1) is as set out concerning s 10(3) above; but what of the critical issue of whether the Guidance properly guided applicants and decision-makers when it came to compatibility with Art 6? This said the Court was a matter of attention to Strasbourg jurisprudence. ‘Obvious unfairness’ to an applicant was ‘wide enough to capture the guidance given in the jurisprudence’ (para [42]) which it summarised (at para [46]) – surely a checklist for applicants and decision-makers? – as follows:

(1) The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey v Ireland (1979) 2 EHHR 533, at para 24; Steel and Morris (2005) 41 EHRR 22, at para 59);

(2) The question is whether the applicant's appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey (above) at [24]; McVicar v UK (2002) 35 EHRR 22, at para 48; and Steel and Morris (above), at para 59);

(3) It is relevant whether the proceedings taken as a whole were fair (McVicar (above), at para 50; P, C and S v UK (2002) at para 91);

(4) The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P, C and S (above), at para 91); and

(5) Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005), at para 62).

Case presentation by a party: ‘effectively and without obvious unfairness’

In the final analysis the ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para [56]). Crucial factors include that the greater the procedural complexity or ‘substantive legal issues’:

'… the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).'

Article 6(1) does not require civil legal aid in most, or even many, cases said the judges. It all depends on the circumstances. Although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person.

'[56] … It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand [it is not the law] that legal services are required only in such extreme cases.'

Individual cases

These will require judgments subjective to the individual case and the applicant involved: the procedural and substantive law features of the case; the issues at stake in the case. Most important, surely, is the individual concerned. For example, Ms Gudanaviciene was a parent faced with extradition and effective loss of contact with her small child. Her grasp of English language was slight. She could not expect the tribunal before which she was to appear to marshall the evidence she needed to produce to defend herself. The Court agreed with Collins J that she must have legal aid (as must four of the six appellants).

The Guidance, said the court was not compatible with Arts 6(1) and 74: it wrongly ‘sends a clear signal’ that s 10(3) rarely applies: that ‘the refusal of legal aid will amount to a [Convention] breach only in rare and extreme cases’.
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