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
		2nd June 2009

1. MR JUSTICE CRANSTON:

Introduction

The issue which arises in this case is the extent to which a Magistrates' Court can make a representation order to provide public funding for a court advocate. In March of this year District Judge Evans, sitting at City of Westminster Magistrates' Court, held that such an order was not available in respect of confiscation enforcement proceedings. The claimant in this case contends that this decision is wrong in law and that he was entitled to a representation order for an advocate as well as a solicitor.

2. There is no need to explore the procedural history of this litigation in detail. Suffice it to say that it was agreed that the Secretary of State for Justice ("the Secretary of State") should be joined to these proceedings as a properly interested party. The Secretary of State enjoys ministerial responsibility for the regulations under contention as well as the Access to Justice Act 1999 ("the 1999 Act"). The result is that the Secretary of State becomes the first interested party and the Legal Services Commission and the Revenue and Customs Prosecution Office, the second and third interested parties.

Background

3. In December 1996 the claimant was convicted of an offence of conspiracy to import a class B drug (cannabis). He was sentenced to a term of nine years' imprisonment. In that month he was also subject to a confiscation order in the sum of £633,530.45. A period of five years' imprisonment in default was fixed. He appealed to the Court of Appeal Criminal Division against sentence, the sum and the default period. On 3rd October 1996 that court reduced the term of imprisonment from nine years to seven years and six months, maintained the amount of the confiscation order but reduced the period to be served in default from five to four years.
4. Following the claimant's release in January 1998, the confiscation order was varied by the High Court to enable him to use his business to generate funds for the payment of the order within six years. By January 2003, he had paid a considerable sum so that the outstanding balance had been reduced to £258,530.47. No payment has been made since then for reasons which will shortly become obvious. Interest has accrued since that time on the outstanding balance. At the hearing it was not possible to tell us exactly by how much the four year default period has been reduced taking into account the interaction of payment made and interest accumulated.
5. In early 2003 the claimant was arrested. Ultimately in July 2004 he was convicted in relation to an offence of conspiracy to import a class A drug, cocaine. He was sentenced to a term of 20 years' imprisonment. Confiscation proceedings in that matter were concluded in late 2005 with a finding that the benefit involved was some £750,000. A nominal confiscation order was made on the basis that there were no available assets.
6. It is said on behalf of the claimant that from late 2005 he pressed Her Majesty's Revenue and Customs to take committal proceedings in relation to the default period fixed for the 1996 confiscation order. It is said that these proceedings were not listed until the middle of 2008, when Her Majesty's Revenue and Customs Prosecution Office finally took action. The matter came before a district judge in December 2008 and was adjourned for the defence to argue that the proceedings should be stayed for abuse of process.

Application for representation order

7. Enforcement proceedings having been instituted against the claimant in 2008, he applied for and was granted a representation order by the Magistrates' Court. It covered a solicitor and was for the purposes of the confiscation enforcement proceedings. Subsequently, the claimant applied to have that order extended to include representation by an advocate. The basis of the application was that the issues for determination before the Magistrates' Court were such as to require an advocate as well as a solicitor. It was said, for example, that the proceedings before the Magistrates' Court involved a complex argument about delay by the prosecution in the application for his committal. It was also said that there was an issue as to whether the default term of imprisonment should run concurrently or consecutively to the sentence that the claimant is now serving. Reference was made to issues of law relating to the European Convention on Human Rights. It was also submitted that the preparation and presentation of legal argument would require consideration of copious amounts of documentation and correspondence reflecting the conduct of the various parties. It was said that there was a considerable sifting exercise to be undertaken by solicitors and counsel to ensure that significant issues which had arisen in the proceedings were effectively presented before the court.
8. The claimant's application was refused, firstly by the Confiscation Order Unit of Her Majesty's Court Service and then subsequently on a renewed oral application by District Judge Evans. There is no transcript of the learned District Judge's decision on 20th March 2009 but the judge has prepared an acknowledgment of service where he sets out his reasoning. He refers to regulation 12 of the Criminal Defence Service (General) (Number 2) Regulations 2001, 2001 SI No 1473/2001, ("the 2001 Regulations"). The key phrase in that regulation, "proceedings before a Magistrates' Court in the case of an indictable offence" was, in his judgment, such as to deprive him of jurisdiction in this case. In his view, a construction of the Regulations led him to conclude that these proceedings were not proceedings in the case of any indictable offence. They were incidental to the criminal proceedings which the claimant faced in 1996 but, if the drafter of the regulations had intended representation orders to be made in this case, it would have been easy to have added a specific provision including confiscation enforcement proceedings. The learned district judge regarded the Article 6 European Convention on Human Rights argument, to which reference is made below, as circular.
9. In relation to the second limb of regulation 12, namely that the proceedings had to be unusually grave or difficult, the learned district judge regarded the submissions about copious amounts of correspondence, and the considerable sifting exercise to be conducted, as far too vague and rather woolly. He also adopted the view that the Article 6 European Convention arguments were not necessarily extensive or complex. In concluding, the learned district judge also took the view that on his construction of the relevant provisions any sentence to be served in default would not be consecutive to the present sentence being served by the claimant. He added that the best course in his view was for the committal to occur. Given the claimant's present position as serving a 20 year sentence, any default term would be wholly painless and it was highly unlikely that the court would consider it appropriate even to order a period in prison in default.

The statutory framework

(a) Regulation 12

10. Central to this case is regulation 12 of the 2001 Regulations, to which I have already referred:

"12(1) A representation order for the purpose of proceedings before a magistrates' court may only include representation by an advocate in the case of:

(a) any indictable offence, including an offence which is triable either way; or

(b) extradition hearings under the Extradition Act 2003

where the court is of the opinion that because of circumstances which make the proceedings unusually grave or difficult, representation by both a (litigator) and an advocate would be desirable."

11. It can be seen that there is a two stage test for assessing whether a case is suitable for a representation order for a court advocate in proceedings before the Magistrates' Court. The first stage identified in regulation 12(1)(a) is that the applicant has to show that the case is such that the applicant is eligible for such an order: the proceedings must be for an indictable offence or extradition. The second stage contemplated by the regulation is that the court must be of the opinion that because of the circumstances the proceedings are "unusually grave or difficult". Regulation 12 must be seen, however, in its wider statutory context.

(b) The confiscation legislation

12. The confiscation order in this case was imposed under legislation now repealed, the Drug Trafficking Offences Act 1986. Section 1 of that legislation enabled a person sentenced in relation to drug trafficking to be subject to a confiscation order. Under section 6 of that Act, Parliament provided that where the Crown Court ordered a confiscation payment any amount would have effect as if it were a fine imposed on a defendant by the Crown Court. In addition, section 6(2) provided in effect that any default period was to be served consecutively to the term of imprisonment imposed in relation to the index offence. Under the Power of Criminal Courts (Sentencing) Act 2000 a fine imposed by the Crown Court is for the purposes of enforcement to be treated for the purpose of enforcement as a fine imposed by the Magistrates' Court: section 140(1).

(c) Criminal defence services funding

13. Brief reference to the background provided by the European Convention on Human Rights ("the Convention") is appropriate when considering public funding of criminal defence. As is well-known, Article 6 of the Convention in effect requires that there be an equality of arms between the parties; in other words, there be a fair balance between the parties to proceedings so that they have a reasonable opportunity of presenting their case to the court under conditions which do not place them at a substantial disadvantage. There are limits, however, on what the state must do. In one of the authorities, Croissant v Germany [1993] 16 EHRR 135, the European Court of Human Rights said:

"29. It is true that Article 6(3)(c) entitled 'everyone charged with a criminal offence' to be defended by counsel of his choosing. Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered absolute. It is necessarily subject to certain limitations where free legal aid is concerned."

14. In Attorney-General's Reference (No 82a of 2000) [2002] 2 Cr.App.R 24, the then Lord Chief Justice, Lord Woolf of Barnes, addressed the issue of the principle of equality of arms. Did it mean, he asked that, if the Crown instructed leading counsel at public expense, a defendant should be entitled to leading counsel from public funds as well? Lord Woolf said:

"14. In our judgment, there is no substance in this argument. The principle of equality of arms is as readily identified in the common law as it is in the Human Rights Act. It is a principle that entitles any defendant to a fair trial. However, a fair trial does not necessarily entail representation by a Queen's Counsel merely because the Crown are represented by a Queen's Counsel. The importance is to have an advocate, whether he be a barrister or a solicitor, who can ensure that a defendant's defence is properly and adequately placed before the court."

15. It is against that background that the Access to Justice Act 1999 establishes the scheme for criminal defence funding. Section 2 establishes the Legal Services Commission. Under section 12(1) the Commission has a statutory obligation to establish, maintain and develop a Criminal Defence Service:

"12(1) The Commission shall establish, maintain and develop a service know as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require."

Section 12(2) of the Act goes on to define criminal proceedings:

"(2) In this Part 'criminal proceedings' means -

...

(b) proceedings before any court for dealing with an individual convicted of an offence (including proceedings in respect of a sentence or order).

...

(g) such other proceedings concerning an individual, before any such court or other body, as may be prescribed."

16. Under sections 13 and 14 of the 1999 Act, the Legal Services Commission may comply with the duties to provide advice and assistance, and representation, in criminal matters by entering into contracts with legal providers. (Section 18(3) of the Act imposes a statutory duty on the Commission to obtain the best possible value for money in doing so.) Section 15 of the Act deals with the selection of a representative.
17. Further details relating to the provision of representatives pursuant to the Act are set out in Schedule 3, entitled "Criminal Defence Service: Right to Representation". Paragraph 1(1) of that Schedule provides that a right to representation for the purposes of any kind of criminal proceedings before a court might be granted to an individual involved in criminal proceedings of the kind identified in section 12(2). Paragraph 2 of Schedule 3 provides for the grant of representation by the court itself:

"2(3) A court also has power to grant a right to representation for the purposes of criminal proceedings before another court in such circumstances as may be prescribed."

18. In pursuance of the powers set out in the Act, the Lord Chancellor made the 2001 Regulations. It will be recalled that section 12(2)(g) of the Act enables regulations to define proceedings for the purposes of the provision of legal representation. Regulation 3 contains a detailed list of the type of proceedings which will be regarded as criminal proceedings for the purposes of section 12(2)(g). Regulation 3(3) provides that proceedings for confiscation are to be regarded as incidental to the criminal proceedings from which they derive.
19. Pursuant to the 2001 Regulations, the Legal Services Commission has agreed the terms of a contract, entitled the Unified Contract (Crime), a contract with firms of solicitors which provide services funded by the Legal Services Commission. There is no need to traverse the details of the contract. It sets out five classes of work to which the contract applies and in clauses A1.5 and B2 provides for the payment of fees in confiscation enforcement proceedings. In addition, clause B2.2.8 relates to unassigned counsel:

"(1) You may instruct Unassigned Counsel to provide Magistrates' Court representation where a Representation Order has been granted. You must agree a fee with Counsel in writing and notify Counsel of the relevant UFN.

(2) In proceedings for which a Standard Fee is claimed, Counsel's agreed fee must also include any fees agreed in respect of Counsel's travelling and waiting time and travelling costs.

[...]

(7) The costs payable in respect of Counsel's agreed fee will only be reduced on Assessment where, and to the extent that, they exceed:

(a) the costs that would be allowed if you had conducted the case without counsel; or

(b) where a Standard Fee is payable, the total of the Standard Fee plus the travelling and waiting time of the Solicitor and Unassigned Counsel, plus Disbursements and Counsel's travelling costs.

(8) The Commission has no liability to pay Counsel in an Unassigned Counsel case. The onus is on you to agree a fee with Counsel and to make appropriate arrangements for Counsel to be paid in accordance with the Unified Contract Standard Terms.

(9) The professional relationship between you and Counsel will be the same as in a privately funded case.

[...]"

The claimant's submissions

20. In his cogent submissions on behalf of the claimant, Mr Burton advances three main points. First, he contends that the words of regulation 12(1) can be interpreted in a way which applies to confiscation enforcement proceedings before the Magistrates' Court. A representation order may be made in the case of an indictable offence. Enforcement proceedings in relation to a confiscation order following an indictable offence must be seen as part and parcel of the proceedings in relation to the original offence. In this regard he invokes in support R (on the application of Lloyd) v Bow Street Magistrates Court [2003] EWHC 2294 Admin; [2004] 1 Cr.App.R 11. In the course of that decision, Dyson LJ said:

"18. In our judgment, Ms Saunt is right to concede that Article 6.1 applies not only to the confiscation proceedings up to the making of a confiscation order, but also to any subsequent proceedings to enforce the order by the issue of a warrant of commitment to prison. As she accepts, such proceedings are part and parcel of the confiscation proceedings, which in turn are part and parcel of the original criminal proceedings. They are no more separate from the original criminal proceedings than is the application for a confiscation order itself. They are not fresh proceedings involving the determination of a criminal charge within the meaning of Article 6.1, any more than are the proceedings by which the prosecutor seeks a confiscation order. Article 6.1 applies because, as Ms Saunt rightly accepts, the enforcement proceedings are part of the criminal proceedings. Were the position to be otherwise, we do not see how Article 6.1 could apply to the enforcement proceedings at all."

21. On the back of that passage, Mr Burton submits that the phrase "in the case of ... any indictable offence" in regulation 12(1)(a) must be interpreted so that the committal proceedings are part and parcel of the original proceedings involving the indictable offence. He submits that that phrase does not indicate at what stage in the consideration of an indictable offence the line should be drawn. Consequently, the regulation should be interpreted so that is covers all stages of proceedings in relation to an indictable offence, including proceedings before the trial itself and any proceedings subsequent to that trial, such as those in relation to the enforcement of a confiscation order. In other words, the interpretation which he submits ought to be adopted of the phrase "in the case of ... any indictable offence" is such that the trial, the sentence, the confiscation proceedings and any enforcement proceedings in relation to a confiscation order are all covered by the regulation. If it were the intention of the drafter to exclude enforcement proceedings in relation to a confiscation order, that would have been done explicitly.
22. Overall, Mr Burton's submission is that there is a process "in the case of ... any indictable offence" which, subject to any submissions he has in relation to abuse of process because of lapse of time, must be seen as, in a sense, seamless. He submits, furthermore, that it would be perverse if representation by both a solicitor and a court advocate were to be denied to a defendant at a stage of the indictable proceedings where there are plainly circumstances which make the proceedings, in the words of the second stage contemplated by the regulations, "unusually grave or difficult".
23. Mr Burton's second submission relates to Article 6(1) of the Convention. In his submission, the regulations must be construed in a way which is consistent with the rights conferred by the Convention. Section 3(1) of the Human Rights Act demands that a court interpret these regulations so that they are given effect in a way which is compatible with the claimant's Article 6 rights. In his submission, Article 6 requires that in a case of this complexity, where a person might be subject to a substantial term of imprisonment in default of payment of a confiscation order, specialist counsel should be available. To provide otherwise would not be compatible with the equality of arms demanded by Article 6 jurisprudence. Thus there is an additional string to Mr Burton's bow as to how regulation 12 should be interpreted. It reinforces his submission about the need for a broad interpretation.
24. A third argument advanced by Mr Burton relates to what he described in his submissions as the second best method advanced by the Secretary of State. That is the system of non-assigned counsel contemplated by the Unified Contract (Crime). In his submission this is not good enough. The fact that it is used on a regular basis for representation in the Magistrates courts is no answer when in his submission its everyday use concerns, in the main, minor matters. In this type of case, he submits, the utilisation of non-assigned counsel would not recognise the complexity and difficulty of the matters which will be before the Magistrates' Court. Moreover, solicitors firms are limited in the extent to which they can use unassigned counsel under the contract.

Analysis

25. In my view, regulation 12 does not extend to confiscation enforcement proceedings in the Magistrates' Court, however serious the underlying events. District Judge Evans was correct to conclude that he had no jurisdiction to make a representation order in this case. The basic principle of interpretation is that a regulation such as this must be construed in context. That means that consideration must be given to this regulation in the context of the 2001 regulations themselves but also against the background legislative scheme, its scope and purpose. Confiscation enforcement proceedings are criminal proceedings for the purposes of the 1999 Act and the 2001 Regulations and fall within the scope of section 12(2)(b) of the 1999 Act. However, the confiscation legislation makes clear that enforcement of a confiscation order is deemed to be equivalent to the enforcement of a fine through the Magistrates' Court. That is far from being proceedings in the case of an indictable offence.
26. While R (on the application of Lloyd) v Bow Magistrates Court treats the enforcement proceedings of a confiscation order as part and parcel of the original proceedings for Article 6 purposes, it does not follow as a matter of statutory interpretation that the proceedings "in the case of ... any indictable offence" referred to in regulation 12(1)(a) should be construed to include enforcement proceedings in relation to confiscation orders. Regulation 12 has no application as a matter of statutory interpretation because such proceedings are not "in the case of ... an indictable offence". Rather they are, in their statutory context, quite separate proceedings: the enforcement of a confiscation order is be treated as the enforcement of a fine. In my view, the meaning of regulation 12 within its statutory context is that a representation order in the Magistrates' Court may only be extended to cover the instruction of a court advocate where the case before the court involves proceedings in the case of an indictable offence in the strict sense or extradition proceedings.
27. That reading of regulation 12 is strengthened by the design adopted by the drafters of both the 1999 Act and the 2001 Regulations, which distinguishes between particular types of proceedings in the Magistrates' Court and which distinguishes between criminal proceedings generally and specific types of ancillary criminal proceedings. That design, and the distinctions involved, are most evident in regulation 3, which contains a long list of very specific types of proceedings which are to be treated as criminal proceedings. The broad interpretation contended for by Mr Burton is at odds with the carefully drawn distinctions in the Act and the Regulations.
28. In relation to Article 6(1) of the Convention, there is no doubt that it applies in the case of enforcement proceedings of this nature. However, as the jurisprudence makes explicit, Article 6 does not require a state to write a blank cheque for the type of legal assistance to be provided. In essence, the jurisprudence establishes that in this type of case as long as a defendant is represented by a lawyer who is competent to put the case there is no breach of the equality of arms principle. That is underlined by Lord Woolf's judgment, quoted earlier. Equality of arms requires the striking of a fair balance. What must be done is to ensure that a party has someone who can ensure that a defendant's case is properly and adequately advanced before the court. The Convention jurisprudence is not prescriptive as to the procedure by which this is to be done or as to how it is to be effected in practice. In my view, there is no basis on which section 3(1) of the Human Rights Act 1998 can bite; regulation 12 cannot be interpreted to enable a court to make a representation order for the instruction of an assigned advocate, as well as a solicitor, in confiscation enforcement proceedings.
29. In coming to this conclusion, I am comforted by the possibility that a court advocate may be instructed on an unassigned basis under the Unified Contract (Crime). There is no need to spell out the mechanics and details. We were informed by Mr Watson for the Secretary of State that advocates are regularly employed on a unassigned basis involving some 100,000-odd criminal cases per annum, albeit that some of these will be of less complexity and difficulty than others. We have been assured by Mr Watson that in a really serious case where a court advocate would be required, although he or she would not be instructed on a conventional basis the equivalent would be available on an unassigned basis under the contract. Mr Watson also directed our attention to the appeal procedures which are available where a party considers that the standard of representation being provided is not adequate to the task.
30. In my judgment, for the reasons I have given, the claim must be dismissed.
31. LORD JUSTICE PILL: I agree. Are there any applications?
32. MR WATSON: There is no application for costs in relation to these proceedings.
33. LORD JUSTICE PILL: You are not applying for costs?
34. MR WATSON: No, my Lord.
35. LORD JUSTICE PILL: Thank you.