England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 July 2005

1. LADY JUSTICE SMITH: Mr Justice Simon will give the first judgment.
2. MR JUSTICE SIMON: This is an application for judicial review of the decision of the Brent Magistrates' Court refusing to grant legal aid to the claimant so that he can be legally represented at a forthcoming trial. The application for legal aid was refused on the basis that it was not in the interests of justice.
3. The criminal proceedings arise out of an incident that took place at approximately 2.00 am on 18 September 2004. The claimant was driving on Neasden Lane in London with a friend, when he was stopped by two police officers on suspicion of driving under the influence of alcohol. The police asked the claimant to take a roadside breath test but on three occasions he failed to provide a sample, after which he was arrested for an offence of failing to provide a roadside specimen. He was cautioned and taken to Wembley Police Station. While there he was asked by a police officer to provide two further breath samples. No satisfactory sample was given; and the claimant was further arrested and cautioned for an offence of failing to provide an evidential specimen contrary to section 7 of the Road Traffic Act 1988.
4. The MG DD/A form records that in answer to the question "Are there any medical reasons why you have not provided two specimens of breath?" the claimant replied "I don't understand you." The claimant was not offered the assistance of an interpreter since the police officer concluded that, although it was apparent that the claimant's first language was not English, his command of the English language was "sufficient and competent to provide all the details."
5. The claimant's case is that he was born in what is now known as the Democratic Republic of Congo ("DRC") and that his first languages are French and a native DRC dialect. Although he has leave to remain in the United Kingdom and has been here for ten years, his wife and the majority of his social circle are from the DRC with the consequence that while he speaks some English he is far from being fluent. It is the defence case that, due to his poor language skills, the claimant did not understand what was required of him in relation to the breath tests; and therefore he had a reasonable excuse amounting to a defence for not providing the samples as charged.
6. There is other evidence, upon which the prosecution will doubtless rely, that the claimant was heavily intoxicated, which may explain either an unwillingness or inability to provide the necessary samples. The determination of that issue will be for the trial.
7. On 23 September 2004 the claimant entered a plea of not guilty and the trial was set for November. On the same date a written application was made for legal aid. The application was made on a form which addresses the statutory criteria for the grant of legal aid.
8. Paragraph 5 of Schedule 3 of the Access to Justice Act 1999 ("AJA 1999") provides:

"Any question as to whether a right to representation should be granted shall be determined according to the interests of justice."

Paragraph 5(2) sets out the relevant factors that must be taken into account in the determination of the requirements of the interests of justice in relation to any individual, namely:

"(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;

(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

(c) whether the individual may be unable to understand the proceedings or to state his own case;

(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual; and

(e) whether it is in the interests of another person that the individual be represented."

9. The application for legal aid was made on a standard form. This form contains various boxes in which the applicant can set out his or her reasons for wanting representation. In the present case these details were filled in by his solicitor. There is then a box which is filled in by the court in response to the points made by the applicant. The court filled in the response on 11 October. In the present case the boxes were filled in following the statutory criteria: 5a: "It is likely that I will lose my liberty", the applicant's details were: "I am at risk of losing my liberty to drive." Reasons given by the court: "Not accepted. No aggravating feature identified." Under 5d: "It is likely that I will suffer serious damage to my reputation." The applicant's details were: "I am of good character." The court's response was: "Not serious damage." Under 5e: "A substantial question of law is involved." The applicant responded:

"I do not properly understand English and certainly would not have been capable of understanding the required warning. Given that I did not understand the warning I should not be convicted and require legal representation".

The court's response was: "Not a 'substantial' question of law." Then under 5t:

"I shall be unable to understand the court proceedings or state my own case because my understanding of English is inadequate."

Details were provided by the applicant:

"I do not fully understand English and on the last occasion the court formed the opinion that I was in need of an interpreter."

10. The court inserted these reasons for the refusal of legal aid in relation to this point: "Interpreter will be provided."
11. The court's decision on the "interests of justice" test was "no undue complexity or substantial legal issue."
12. The application was renewed before the District Judge pursuant to the Criminal Defence Service (Representation Order Appeals) Regulations 2001/1168. The renewed application was refused on 28 October on the same grounds as before.
13. Thereafter a written advice from counsel, Miss Sareeta Ashraph, was obtained in which she advised that legal representation for the claimant was necessary in the interest of justice as, for among other reasons, he was likely to receive a short custodial sentence if convicted. She also set out her assessment of his English at a conference: it was sufficiently poor to raise a serious issue.
14. This advice was submitted to the court and the application was renewed orally before the court on 24 January 2005. This application was refused on the grounds that there was no risk of serious damage to the claimant's reputation; there was no substantial or complex issue of law involved in the case and that an interpreter was to be provided. In other words substantially the same grounds as had been given in the boxes to which I have referred.
15. Before this court Miss Whitaker submits that the refusal of the court in the face of the written advice of Miss Ashraph was unreasonable. She submits that for the reasons advanced by Miss Ashraph the case meets at least three relevant criteria: first, whether the claimant is likely to lose his liberty or livelihood; secondly, whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law; and thirdly, whether the individual may be unable to understand the proceedings or state his own case.
16. So far as this last point is concerned, she submits that counsel instructed for the criminal proceedings was of the opinion, after meeting the claimant in conference, that he had such a limited knowledge of the English language that his language abilities would be completely inadequate for him to act in his own defence at trial. She submits that the only way the claimant could seek to be acquitted was by demonstrating to the court that he was wholly unable to understand any of the relevant procedures that had been explained to him. She submits that even the most skilled advocate acting on his own behalf would struggle to obtain a fair trial in such circumstances. She further submits that the grant of an interpreter does not negate the need for legal representation, and that the court was acting irrationally in considering it to be a reason for refusing legal aid in the circumstances.
17. The requirement that the proceedings be in a language that a defendant understands is merely one aspect of the requirement that a person must be able to effectively participate in criminal proceedings against them pursuant to the guarantee of a fair trial under Article 6 of the ECHR, and does not of itself negate the need for legal representation. We note that in her skeleton argument before us Miss Whitaker advanced an argument based on a fourth criteria - a need to cross-examine the police witnesses. It is unnecessary for us to address this point since it was not raised by Miss Ashraph in her advice and was not considered by the defendant court. Furthermore, the suggested line of cross-examination would need to be considered very carefully before being embarked upon.
18. While not wishing to express a concluded view as to whether all the criteria were made out to the necessary standard, I am satisfied that at least one of the criteria is met, which makes the refusal of legal aid unreasonable to a degree which entitles this court to intervene. It is important not to lose sight of the fact that the test is a test of "the interests of justice". Whatever the basis of the application for legal aid before Miss Ashraph's advice was tendered, the contents of that advice raised a compelling and unanswered argument that it was in the interest of justice that the claimant should be granted legal aid. The availability of an interpreter does not meet the point that it is the claimant's case that he was unable to understand what was being said at the time of his arrest. This is a point which lies at the heart of his defence. It goes to his ability to state his own case and the overall fairness of the trial.
19. I would therefore quash the decision refusing legal aid to the claimant and remit the case to a differently constituted Bench for reconsideration in the light of the statutory criteria, and in particular those which I have sought to identify.
20. LADY JUSTICE SMITH: I agree.

(Appeal allowed; case remitted to a differently constituted Bench; community legal funding assessment).