England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Claim No. 3 EC 02367
HHJ David Mitchell (Judgment and Order dated 27.11.2014)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th May 2015

Lord Justice McCombe:

(A) Introduction

1. The present appeal once again raises questions of the availability of publicly funded legal representation in proceedings for the committal to prison of individuals said to be in contempt of court in failing to comply with court orders and, if such representation is available, as to the authority or court that is competent to order the representation to be provided.
2. After lengthy consideration of tortuous statutory and regulatory provisions, in his judgment of 7 November 2013, Blake J in King's Lynn and West Norfolk Council v Bunning and anor. [2013] EWHC 3390 (QB); [2015] 1 WLR 531 (hereafter "Bunning") decided that, in the contempt proceedings before him, the High Court had power to make an order for public funded representation. In the course of giving judgment in that case, the learned judge made the following observation:

"I consider that the present drafting of that regulation [i.e. regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013] combined with the terms of the prescribed form CRM14 are likely to give rise to very real difficulty within the 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. I would hope that following this judgment thought can be given to making appropriate changes to both so that applicants consulting the Regulations will not have to read this judgment to make sense of them, assuming that it has done so."

Sadly, the judge's hope has not been fulfilled.

3. The judgment in Bunning now enables a suitably informed and legally qualified adviser (as opposed to a lay person), equipped with the statute, the regulations and the judgment, to resolve the conundrum that arises in High Court contempt proceedings. That is not so, however, in County Court proceedings. The question of the availability of legal aid in such proceedings needs to be clear to lawyer and layman alike. It is not. The legislation is disgracefully complex. For this reason, in my judgment, the appellant's entitlement to legal aid in this matter was never properly understood and determined by the legal aid authorities and, in consequence, the proceedings in the court below went wrong.

(B) This Appeal

4. By Appellant's Notice issued on 16 April 2015 Mr Ronald Brown applied to this court for permission to appeal out of time against the order of 27 November 2014 of HH Judge Mitchell, sitting in the County Court at Central London, whereby Mr Brown was committed to prison for a total of 18 months for contempt of court for breaches of injunctions granted in the action on 22 May and 10 June 2014.
5. An appeal lies as of right to this court in respect of an order for committal for contempt. However, a proposed appellant still requires permission to appeal out of time, if he fails to comply with the time limits for bringing such an appeal. The relevant time is 21 days from the making of the order and, however that period falls to be calculated in this case, the Appellant's Notice was at least 4 months out of time by the time it was issued. On Mr Brown's application for an extension of time, the London Borough of Haringey ("the respondent") adopted a neutral position and, at the hearing, Mr Grundy who appeared for the respondent did not oppose the grant of the necessary extension. It seemed to us that, in the interests of justice an extension should be granted. We so ordered at the beginning of the hearing. In the remainder of this judgment I call Mr Brown "the appellant".
6. The appellant also applied to us for a representation order to give him public funding for representation on this appeal. In the absence of such an order, Mr Bridge and his instructing solicitors were acting at risk in the appeal proceedings and I, and I am sure my Lords also, are grateful to them for doing so. I deal with the statutory provisions relating to applications for a representation order in this court later in this judgment. At the beginning of the hearing, however, since we were satisfied that we had jurisdiction in the matter and that it was proper to do so, we granted the appellant a representation order for solicitors and counsel for the appeal, including for the necessary preparation for it.
7. At the conclusion of the hearing, we announced to the parties that, for reasons to be given in writing, the appeal was allowed and that the committal order and the factual findings upon which it was based were quashed. We ordered that the appellant be discharged from custody forthwith. We decided against remitting the case to the County Court, having regard to the fact that Mr Brown had already served over 5 months in custody and counsel for the respondent accepted that it was most unlikely that the respondent would wish to pursue the matter further in the circumstances.
8. The following are my reasons for concurring in the making of those orders.

(C) The Proceedings in the County Court

9. It is not necessary to dwell at length upon the history of the proceedings leading to the making of the orders of 22 May and 10 June 2014. The brief background, however, is as follows.
10. The appellant is now aged 80. His partner (Ms Halina Wilson) was a secure tenant of property at 87 Dukes Avenue, Muswell Hill, London N10. The appellant and Ms Wilson resided at that property until shortly before execution of an order for possession made against them on 10 June 2014^[1] at the suit of the respondent. As that order recites, it was made on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, namely non-payment of rent and of nuisance and annoyance to persons in the locality.
11. In advance of that order, on 22 May 2014, HH Judge Mitchell had already granted an injunction restraining the appellant and Ms Wilson from committing various acts of nuisance and anti-social behaviour, including filming or taking photographs of neighbours, using or threatening to use violence, making excessive noise, using foul or abusive language and other kindred acts. The order was continued, as slightly varied, at the time of the making of the possession order on 10 June 2014. The order included a power of arrest.
12. In the period between May and September 2014, the respondent continued to receive reports of anti-social behaviour on the part of the appellant and Ms Wilson and by Application Notice issued on 2 October 2014 the respondent applied to commit both to prison for breach of the orders. By order of HH Judge Freeland QC of 31 October 2014, made on an occasion when the appellant appeared before him in custody having been arrested under the arrest power in the earlier orders, the application for committal was fixed for hearing on 26 November 2014 and directions were given for the service of written evidence.
13. The judge records, in the judgment under appeal (paragraph 69), that the appellant left the Muswell Hill property on 31 October 2014, followed by Ms Wilson on 24 November 2014, the date appointed for execution of the possession order.
14. The underlying problem raised by this appeal is, as I have already said, the position with regard to the funding of the appellant's representation for the committal application which came before Judge Mitchell on 26 November 2014. Before dealing with the background to that I will continue my summary of the course of the committal proceedings themselves.
15. We have a transcript of the hearing. On the first morning (26 November), the appellant attended in person, albeit arriving late at court. Prior to his arrival there had been an unseemly incident in which a member of the public sought to address the court on behalf of Ms Wilson. The judge declined to hear him. Just as the appellant was entering court, the judge was being told by counsel then appearing for the respondent (not Mr Grundy) that the respondent had received a letter from new solicitors for the appellant and Ms Wilson stating that they had been instructed to represent them both and (quoting counsel),

"Applications to the Legal Aid Agency were submitted on 11^th November and they asked the hearing to be adjourned to 17^th December. We refused. We had received a letter from [the]…solicitors, saying we are not in funds, legal aid is pending, we have written to the court requesting we are taken off the record…".

(It is not clear whether or not those solicitors were in fact on the record at any stage.) No questions were asked of the appellant as to what the position was with regard to legal aid or whether he wished to be represented or to have assistance during the hearing, save for the following brief exchange a short time after the passage quoted above:

"JUDGE: ...Mr Brown, have you got any representation?

MR BROWN: I have not, your Honour, no.

JUDGE: Right. These are committal proceedings and the position is that there are a number of witnesses who are going to be called to give evidence. You know about that because you were here for a period in May when I dealt with this case. If you need anybody to assist in cross-examining the witness, I will do that for you…

MR BROWN: I am capable of doing that…"

16. The appellant told the judge that he had, that morning, taken Ms Wilson to hospital. In the circumstances, the respondent's counsel stated that her client wished to proceed on that day against the appellant alone, given Ms Wilson's absence and the fact that the most serious of the allegations in the case concerned the appellant. The judge adjourned generally the application against Ms Wilson but decided that the application against the appellant should proceed.
17. It should be mentioned at this point that, while the appellant questioned how the proceedings could go on against him in Ms Wilson's absence, he did not apply to have the proceedings adjourned for that reason or for further attempts to be made to obtain public funding for representation. To be fair to him on this point, for reasons which will appear shortly, he may have been under the impression that such funding could not be provided for him in any event from any quarter under the relevant rules.
18. The hearing proceeded. Witnesses for the respondent were called and were cross-examined by the appellant. At the end of the proceedings on that day, as appears from the transcript, it was envisaged that the appellant would have his opportunity to give oral evidence, if he so wished, when the court resumed on the following morning at 10.30 a.m. However, when proceedings opened on that second morning the appellant was absent. The same member of the public, to whose involvement on the first day I have already referred, told the judge that, "you [the judge] have given Mr Brown a heart attack". Again, the judge declined to hear this member of the public and directed him to the public seating as before. Counsel for the respondent informed the court that a message had been received, apparently for some unexplained reason via the Administrative Court office, that "…Mr Brown will not be attending court today, he is at University College Hospital with heart pains". The judge was told that counsel had asked that investigations be undertaken to see what the position was in this respect, both in relation to the appellant and Ms Wilson. After a short inquiry about Ms Wilson (but not about the appellant), the judge said,

"I think we will get on with it, quite frankly. All this has been done so many times. The tragedy is that occasionally it is true, but having had allegations that they are terribly ill made on more than one occasion I am afraid that the time has come when we are dealing with it…"

19. The judge then proceeded to hear one witness for the respondent, who had to be recalled. Thereafter, in the absence of the appellant, the judge heard final submissions from counsel for the respondent.
20. After those submissions, the judge gave an ex tempore judgment in which he found a large number of breaches of the injunctions proved. It is right to record that the series of breaches of the orders, which the judge found proved on the evidence before him, would clearly have constituted very bad behaviour indeed by the appellant towards his neighbours. The judge proceeded to pass the sentence to which I have referred, obviously this was done without the benefit of any mitigation on the part of the appellant and it was done without any further consideration of whether the proceedings should be adjourned before sentence was passed.
21. The principal grounds of appeal (and I will revert to the grounds more fully later) complain that the proceedings were conducted without any legal representation for the appellant. The complaint (in ground 2) is that attempts were made on his behalf to obtain public funding and it is submitted that the Legal Aid Agency ("LAA") was wrong in declining to grant a representation order. Reliance is placed upon Bunning. There are no grounds advanced challenging the judge's conclusions of fact on the evidence that was before him. It is said rather that there were breaches of the appellant's rights under the European Convention on Human Rights ("ECHR") amounting to "a serious procedural or other irregularity in the proceedings in the lower court".
22. To assess this, it is necessary, therefore, to summarise what was done in an effort to obtain funding for representation and the results. It is also necessary to try to understand the legislation relating to publicly funded representation in committal proceedings in the County Court.

(D) Attempts to obtain Public Funding for Representation

23. It seems that in November 2014 the appellant consulted his present solicitors for the first time and they enquired of the LAA by telephone about the availability of funding. We are told (as it turns out probably correctly) that they were informed by the LAA that this was a criminal case and that application should be made under the firm's criminal contract. As a result, on 11 November 2014, application was sent to the Westminster Magistrates Court, to whom (as we are told) solicitors in the relevant area of London are required to submit legal aid applications in criminal proceedings. By letter dated 12 November 2014 (marked as received by the solicitors on 14 November) the court returned the application and stated, "Sent to Westminster Magistrates' Court in error. This is a civil matter". In light of this response, legal aid was again sought on that day from the LAA at its Nottingham office. We are told that, in the absence of any reply, a further telephone call was made to the LAA office and the solicitors were told that no decision had been made.
24. The result was that the appellant attended before Judge Mitchell on 26 November 2014 with no representation and no information that funding for it would be forthcoming. As I have already said, it appears from the transcript of proceedings that no enquiry was made of the defendant by the judge about the availability of public funding or attempts to obtain it. In his sentencing judgment, however, the judge said that he had been told by the appellant (perhaps during the earlier stages of the action) that he could not get legal aid and the judge expressed some sympathy for the appellant in this respect.
25. Strangely, a document called a "Contribution Notice" dated 26/11/14 addressed to the appellant at an address in London EC1 is in the papers before us. It emanates from the Legal Aid Agency and HM Courts and Tribunals Service "Court Name: City of Westminster", stating,

"You have made an application for Legal Aid.

From the information you have supplied us, you will not have to make a contribution towards your defence costs.

Your defence costs will be paid in full by the legal aid fund…".

This letter came into the hands of the appellant's solicitors on a date in January 2015, by which time the appellant was in prison, having been arrested on 3 December 2014. By letter of 9 January 2015 the solicitors asked the Westminster Magistrates Court for a copy of the representation order, a request to which (as we are told) no reply has ever been received.

(E) The relevant Legal Aid Legislation

26. As mentioned above, the attempts by the appellant's solicitors to obtain legal aid for the appellant for the pending contempt application had been rebuffed by the authorities dealing with civil and criminal legal aid respectively. It is clear to me, after considering the legislation, and with gratitude to the analysis by Blake J in Bunning (with which I respectfully agree), that the relevant provisions are to be found in the legislation relating to criminal legal aid.
27. The relevant Act is the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). Section 14 of that Act provides that,

"In this Part "criminal proceedings" means-…

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

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

28. Clearly, the application here was not "for contempt committed, or alleged to have been committed, by an individual in the face of the court". In Bunning the omission of reference to any other form of contempt proceedings gave rise to a question as to whether they were "criminal proceedings" at all for these purposes. However, as Blake J noted in that case, regulation 9 of the Criminal Legal Aid (General) Regulations 2013 provides that,

"The following are criminal proceedings for the purposes of section 14(h) of the Act (criminal proceedings) -…

(a)…

(u)… "

and finally,

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

29. In Bunning Blake J decided, and I respectfully agree with him, that this provision in regulation 9(v) covered proceedings for committal in the High Court. Clearly, it must also cover such proceedings in the County Court for the same reasons. But who qualifies and to whom must an application for representation be addressed?
30. Section 16(1) of LASPO provides that,

"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 had not withdrawn the determination)".

31. Unhelpfully, "specified individual" for our purposes is defined by section 16(6) as

" "specified individual" means –

(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".

The paper chase continues to regulation 10 of the 2013 Regulations which provides that,

"An individual who is or may be brought before a court or tribunal in proceedings specified in regulation 9 is a specified individual for the purposes of section 16(6) of the Act (representation for criminal proceedings)".

So an alleged contemnor, covered by regulation 9(v) is covered.

32. The "relevant authority" is defined in section 16(6) of LASPO as,

" "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;…".

33. The next question then is which authority was the "relevant authority" for the purposes of these proceedings. Section 18 deals with determinations by the Director (i.e. the Director of the LAA); section 19 provides for "Determination by court" (sic); and section 20 relates to "Provisional determinations".
34. Section 18 provides that the Director is authorised to make determinations,

"…except in circumstances in which a court is authorised to make the determination under regulations under section 19…".

Section 19(1) states that,

"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 withdrawals of such determinations by a court".

Regulations 6, 7 and 8 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 provide that the Crown Court, the High Court and the Court of Appeal (respectively) are authorised to make determinations under section 16 of LASPO as to whether an individual qualifies for representation for the purposes of criminal proceedings before those courts, and in the case of the Court of Appeal it may make determinations in respect of qualification in such proceedings before the Supreme Court on appeal from it.

35. It was pursuant to regulation 8 of these last mentioned regulations that we found that we had power to make the representation order in respect of the appeal before us. However, it seems to me that there is no authorisation conferred upon a County Court to make such a determination. (The previous useful power conferred on the County Court by section 29 of the Legal Aid Act 1988 to grant representation in contempt proceedings has now gone and seems not to have been replaced.) Therefore, in my judgment, by virtue of section 18 of LASPO it was for the Director to make the determination in the present case. Clearly, that should have been done either internally or (if such is the arrangement made by the LAA for criminal proceedings) it should have been done through the Westminster Magistrates Court which was wrong to tell the appellant's solicitors (as it did on 12 November 2014) that this was a civil matter.
36. Unfortunately, although nothing could be simpler, there is no clear legislative provision providing in straightforward terms that applications for publicly funded representation for committal proceedings in the County Court are to be made to the Director.
37. There seems to be no doubt that the appellant in this case was a person entitled to a representation order for the proceedings before Judge Mitchell.

(F) The Grounds of Appeal and my Conclusions

38. As already mentioned, the grounds of appeal are based principally upon the submission that the lack of the legal representation for the appellant before Judge Mitchell, to which it seems clear he was entitled, constituted a serious procedural flaw leading to a failure to hold a fair trial. It is also pointed out in the grounds that the appellant is 80 years old and suffers from a number of age related health concerns. It is said that he was "convicted" and sentenced in his absence. There were no medical reports and no mitigation was advanced.
39. Clearly, the right to a fair trial at common law and under the ECHR is squarely engaged on any application to commit an individual to prison for contempt of court. It is highly desirable that such an individual should be legally represented, if he or she so wishes. As emerges from Bunning it seems clear that the ultimate (if obscure) meaning of the legislation considered in that case, and of relevance in this one, is that a qualifying individual should receive public funding for legal representation on committal applications. There was a power reposed in the Director of the LAA to grant such representation. However, in this case, the appellant's solicitors were sent "from pillar to post" in the weeks before the hearing by the civil and criminal legal aid authorities respectively, and as a result whatever right he might have had to public funding was lost for all practical purposes. There seems to be little doubt that, from a financial point of view, the appellant would have qualified for assistance.
40. In such circumstances, Mr Bridge argues that the judge should have adjourned the proceedings on the first day in the absence of proper exploration as to the appellant's entitlement to public funding and as to whether he truly wished to represent himself or whether he wanted representation, if it was available. Mr Bridge submits that the position became worse on the second day: first, when the judge failed to await the fruits of the investigations that he was told by the respondent's counsel were being made about the appellant's attendance at a hospital; and secondly, when he proceeded immediately to pass sentence on that day without considering whether sentence should be adjourned (a) so that the appellant's attendance could be secured (if necessary by Bench warrant), (b) so that a fuller explanation of his circumstances and medical history could be ascertained, and (c) so that an opportunity for mitigation could be afforded to him, hopefully with the benefit of representation at least for that purpose.
41. It seems to me that there is force in each of these submissions. One must have sympathy with the judge who was confronted with a litigant who, in the earlier parts of the proceedings before him had not behaved well and who had displayed from time to time a tendency to extreme truculence. However, when it came to the committal application, the proceedings had moved to an entirely different phase. They were no longer civil proceedings, but had obtained a quasi-criminal character; the appellant's liberty was at risk. It was necessary to isolate the quasi-criminal application before the court from what had passed before and to make full enquiry (a) as to whether the appellant wanted legal representation and (b) whether he had applied for the necessary funding to do so and with what results. For my part, I do not think that the judge's short enquiry about representation, which I have quoted above, went nearly far enough in this respect.
42. The appellant had left the premises that had been the subject of the possession proceedings and there could have been no prejudice to the putative victims of the contempt alleged if the case had been adjourned for full enquiries to be made about the legal aid position and about the appellant's true wishes concerning representation.
43. Mr Grundy said to us in argument that, having studied the transcript of the hearing below, he could not be satisfied (using the terms of the criminal law) "that the convictions were safe". I consider that he was right to make that concession.
44. The situation then deteriorated, in my judgment, when the judge failed to adjourn the hearing pending enquiries about the appellant's hospitalisation on the second day and again when he failed to consider whether to adjourn the case for sentence to take place in the appellant's presence. I fully understand that the appellant and Ms Wilson had sought on previous occasions to bring about delay by visits to hospital, more or less genuine in nature. However, the judge was told on this occasion enquiries were being made about the position, but did not await their outcome. As for sentence, it seems to me that before passing a sentence, and certainly before passing a sentence of this severity on a man of the appellant's age, the judge should have considered whether to adjourn the case to secure the appellant's attendance and to make further enquiries about the availability of representation at the adjourned hearing. He did not do these things.
45. For these reasons, I considered that the grounds of appeal advanced by Mr Bridge were made out and that we should make the orders that we did on 6 May 2015.

(G) Postscript

46. At least until some improvement is made to the drafting of the legislation (which, like Blake J, I hope will not be long delayed), it seems to me that it is important that all involved in committal proceedings in the County Courts should be aware of the route to be taken in applying for legal aid in such proceedings. For my part, I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are. It may be that, as Mr Bridge submitted here, consideration should be given to the promulgation of standard directions on the subject, either on the application notice itself and/or in any preliminary order regulating the procedure in an individual case.

Note 1   Following circulation of a draft of this judgment we were informed by Mr Grundy (counsel for the respondent) that his understanding is that the possession order was made on 22 May 2014, and not 10 June 2014 as stated here. I have, however, retained the date as 10 June 2014 because the copy order in the bundles before us (at pp.156-8) states on its face that the order was made on that date. The precise date of this order has no material bearing upon the issues in the appeal and I have, therefore, adhered to the original date in my draft as it accords (as I see it) with the copy order before the court.     [Back]