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The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness. (Emphasis in original)The position on grant of ECF to avoid ‘obvious unfairness’ is intended to be reflected in the new para 20 which states:
' … the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the 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). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.'In Muscat v Malta (2012) (App No 24197/10) the European Court made a similar point:
' … In discharging its obligation to provide parties… with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6.' (Emphasis added)The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court jurisprudence (see eg para  summarised above) is omitted from the Guidance in paras 19/20, and elsewhere. Does the Guidance comply with what the Court of Appeal said made it non-compliant with European Convention 1950? Can it be said that the approach of the new Guidance consistent with the duties of the Lord Chancellor under the European Convention 1950 as perceived by the recent Court of Appeal decisions in Gudanaviciene and the earlier JG decision?
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' In considering whether it is necessary to make civil legal services available, caseworkers should ask themselves whether a failure to do so would be a breach of Convention rights or enforceable EU rights by reference to the principles identified in this Guidance and in any relevant case law (emphasis supplied in the text) [citation of Gudanaviciene at  here].'The threshold for consideration of grant (assuming an applicant is financially eligible) is ‘that it is necessary to make [civil legal aid] available to’ the applicant, because failure to do so would be a breach of his/her Convention rights; or the case worker fears there might be such a breach (LASPO s 10(3)). Do the above paragraphs of the Guidance translate the s 10(3) necessity into a ‘diligent’ approach to grant of legal aid (see Steel & Morris and Muscat (above))? Is the new Guidance by which case-workers assess ECF applications compliant with HRA 1998?
' … In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [citation of Gudanaviciene at ], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.'
Right to a fair trialIn Airey v Ireland (1979) 2 EHHR 533 the European Court recognised that where the nature of the proceedings demanded it, a denial of legal aid might, in itself, be a denial of a fair trial contrary to Art 6(1) (Airey and the following case law is considered in Gudanaviciene at  to ). The complexity of law or procedure may not guarantee that a fair trial will be denied, but it is a factor legal aid authorities must have in mind, as explained by the European Court in Steel and Morris v UK(2005) 41 EHRR 22:
(1) In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
' The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.'However once a state has determined that a person’s means justify legal aid, that their civil rights are in issue and that their right to a trial risks real and obvious unfairness by a lack of legal advice and representation then, said the European Court in Muscat v Malta (above): ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (at )).
'Where caseworkers conclude that legal aid is required to be provided under section 10, this should be limited to the minimum services required to meet the obligation under ECHR or EU law. For example, it could be through providing assistance in the form of specific levels of service, or through limitations placed on funding certificates.'Under the capability of the applicant to present their case effectively paras 23 and 24 state:
'Caseworkers should consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. When considering this factor, caseworkers will need to bear in mind their assessment of case complexity, as this may affect the weight that needs to be given to some of the matters listed below.'These two paragraphs (amongst a number) do not paint the LAA as a supportive department over-imbued with ‘diligence…to secure’ that services are provided. Para 36 does not present them in a forgiving light (bad losers, perhaps?) once they have accepted that the necessity threshold has been achieved.
' What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.'There is no reason why the scheme for ECF grant should be any different. Yet, on present drafting of the Guidance, the ECF scheme seems still not HRA-compliant.