England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		28 April 2006

MR JUSTICE KEITH:

Introduction

1. This is a claim for judicial review of the refusal by a magistrates' court to grant a representation order in favour of a client of the claimant, Sonn MacMillan, a firm of solicitors ("the firm"), in connection with criminal proceedings brought against him by the Crown Prosecution Service. I shall refer to the firm's client as the defendant. The magistrates' court had also refused to grant the defendant a defendant's costs order. But permission to proceed with a claim against that refusal was not granted. Permission to proceed with the claim against the refusal of the representation order was granted by Collins J on 22 August 2005.

The facts

2. On 7 September 2004, the defendant, who was 18 years old at the time and had no significant previous convictions, was stopped driving a motor vehicle on the A13 in Basildon, Essex, as the police noticed that he was not wearing a seat belt. The police asked him to provide his name and address, whereupon he gave the name of his brother. A police check revealed that his brother was recorded as being "disqualified until test passed". The defendant was therefore arrested on suspicion of driving whilst disqualified. He was taken to Basildon Police Station and processed in the usual way. He continued to give his brother's name when asked for his details on arrival at the station, as well as when he was interviewed and when he was charged. He was charged with driving whilst disqualified contrary to section 103 of the Road Traffic Act 1988, and using a motor vehicle without insurance contrary to section 143 of the Road Traffic Act 1988. He was bailed to appear at Basildon Magistrates' Court, but failed to do so and a warrant for his arrest was issued.
3. On 9 November 2004, the defendant was arrested on that warrant. By then, the police knew the defendant's correct name, so when he appeared at Basildon Magistrates' Court later that day, the case was adjourned to enable the prosecution to decide how they were going to proceed. The defendant was bailed to appear at Grays Magistrates' Court on 29 November 2004.
4. The firm was instructed to represent him on this occasion. Their consultant, Mr Neil Corre, who was then a solicitor advocate, appeared on his behalf. At the hearing the prosecution withdrew the charge of driving whilst disqualified against the defendant. The charge would have been inappropriate as against both him and his brother since neither of them had in fact been disqualified from driving on 7 September 2004. The defendant's brother had had his licence revoked pursuant to section 3 of the Road Traffic (New Drivers) Act 1995, the effect of which is that a person who drives after the revocation of a licence and before a further licence has been obtained commits the offence of driving otherwise than in accordance with a driving licence contrary to section 87(1) of the Road Traffic Act 1988.
5. After withdrawing the charge of driving whilst disqualified against the defendant, the prosecution laid a charge of obstructing a police officer in the execution of his duty contrary to section 89 of the Police Act 1996. The charge was intended to reflect the defendant's conduct in misleading the police about his identity. Mr Corre then asked for an adjournment in order to enable disclosure concerning the new charge to be made. That application was refused, but the case was put back until later in the day. Mr Corre was permitted to peruse the prosecutor's file, and having done so he tendered appropriate advice to the defendant.
6. An application for a representation order was completed by the defendant in respect of the charge of obstructing a police officer in the execution of his duty, and that application form was submitted before the defendant's pleas were taken. The defendant then pleaded guilty to obstructing a police officer in the execution of his duty, and to failing without reasonable cause to surrender to the custody of the court contrary to section 1 of the Bail Act 1976. He was fined for the offence of obstructing a police officer in the execution of his duty, but no separate penalty was imposed for the offence of failing to surrender. Mr Corre then asked about the application for a representation order. He was told that it had been refused by an officer of the court. The application was then renewed before the deputy district judge, who similarly refused it.

The relevant statutory provisions

7. The relevant legislation is the Access to Justice Act 1999 ("the Act"). Under the Act, there is a contracting regime through which a solicitor who has a contract with the Legal Services Commission can grant himself advocacy assistance for initial and limited purposes. Thereafter, or in the absence of a contract, a representation order -- or, to be accurate, an order giving a defendant a right to representation -- is needed. That is what the defendant applied for.
8. Paragraph 2(1) of Schedule 3 to the Act empowers a court at trial to grant a defendant a right to representation. The determination of an application for a right to representation is governed by paragraph 5 of Schedule 3. Paragraphs 5(1) and 5(2) provide:

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

(2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account -

(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 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."

The application for a representation order

9. The application for a representation order in this case was made on the basis of paragraph 5(2)(a), namely that the defendant was likely to lose his liberty. The only details which the application form gave related to the offence of obstructing a police officer in the execution of his duty, and why it was said that it was likely that the defendant would lose his liberty. What the application form said was:

"This is a serious case of its kind. It is alleged that I gave false particulars to police when stopped whilst driving."

In R(on the application of Sonn and Co) v West London Magistrates' Court (CO/1451/98), the Divisional Court endorsed the guidance given by the Lord Chancellor's Department that legal aid should normally be granted under paragraph 5(2)(a) "where there is a real and practical (as opposed to a theoretical) risk of imprisonment or other form of deprivation of liberty". The officer of the court who initially refused the application for a representation order did so because he thought that it was "unlikely" that the defendant would receive a custodial sentence. That, at any rate, was what he endorsed on the application form which the defendant completed. The deputy district judge, who refused the application when it was renewed to him, says that the officer refused it because "the Magistrates' Guidelines entry point for these offences is a community based penalty". As for why the deputy district judge refused the application himself when it was renewed to him, he says that he did so because "there was no prospect of a custodial sentence".

10. Mr Corre, who is now a barrister, has represented the claimant on the hearing of this claim. If the cases referred to by him are anything to go by, he seems to have cornered the market in this recondite area of the law. He argues that the defendant's conduct should have been regarded as placing him at real risk of a custodial sentence in view of his deliberate and sustained attempts to mislead the police. His behaviour could well have resulted in a charge of perverting the course of justice, and he was fortunate to be charged only with obstructing a police officer in the execution of his duty. Mr Corre says that the offence of failing to surrender was aggravated by the defendant's conduct in giving false particulars.
11. The critical question is whether it was open to the deputy district judge to conclude that the defendant was not at risk of a custodial sentence. I have concluded that it was open to the deputy district judge to reach that conclusion. This was a young man with what Mr Corre described as no significant previous convictions, and although he might have been charged with a more serious offence, the fact is that he was not. In view of the many statutory initiatives designed to keep young offenders out of custody, the chance that the defendant might have received a sentence of detention in a young offender institution was so remote that it was open to the deputy district judge to conclude that it could be discounted for all practical purposes. The offence was of some gravity, but the deputy district judge was entitled to conclude that it was certainly not of the seriousness to make the defendant at real risk of the imposition of a custodial sentence, bearing in mind, as Mr Corre accepts, that he was to be treated for sentencing purposes as someone of good character who had never been in custody before. It may well have been very different if he was an older man who had significant previous convictions.
12. The offence of failing to surrender did not actually have to be considered by the deputy district judge in the context of the application for a representation order because it was not referred to in the written application. But even if he was considering whether a representation order should be granted for representation for both offences, it was still open to him to conclude that there was not a real risk of the defendant being sentenced to detention in a young offender institution for the offences. I have not overlooked the statement in para I.13.5 of the Practice Direction (Bail: Failure to Surrender) [2004] 1 WLR 589 that "the sentence for the breach of bail ... should usually be custodial and consecutive to any other custodial sentence". But the sentence for an offence of failing to surrender to one's bail will often be custodial only where the defendant is being sentenced to a custodial sentence for another offence at the same time. The deputy district judge would have been entitled to consider that there was no real risk of that in this case.
13. Of course, by the time the deputy district judge was being asked to consider the application for a representation order, he had already sentenced the defendant. It is plain that it would not have been appropriate for the deputy district judge to take into account the sentence which he had actually passed on the defendant. He had to consider what the risk of the custodial sentence had been when Mr Corre was advising the defendant whether to apply for a representation order. As Sedley LJ said in R(on the application of Punatar & Co) v Horseferry Road Magistrates' Court [2002] EWHC 1196 (Admin) at [18]:

"The right time to look at this question, it seems to me, is the time when solicitors are deciding either that there is no real risk of imprisonment and so no reason to expect a right of representation to be granted, in which case they will tell clients that they are on their own, or that there is such a risk and that the expenditure of time and effort and costs in applying for the grant will be justified, whether or not it is ultimately successful."

14. Mr Corre submits that the deputy district judge fell into the error of taking the sentence which he had imposed into account. That was because, when Mr Corre told the deputy district judge that he wished to renew his application for a defendant's costs order in respect of the withdrawn charge of driving whilst disqualified, the deputy district judge referred to the fact that the defendant "had got off lightly". A flippant remark made in that context does not seem to me to be any real basis for saying that the deputy district judge took account of the sentence which he had imposed when deciding the application for a representation order. And in any event the deputy district judge could simply have meant that he had fined the defendant rather than considered him for a community rehabilitation order or a community punishment order. But even if the deputy district judge had taken account of the sentence he had imposed when deciding the application for a representation order, it is inevitable, I think, that the deputy district judge would have reached the same conclusion if he had not taken that into account.

Conclusion

15. For these reasons, this claim for judicial review must be dismissed.