R (Gudanaviciene and Others) -v- The Director of Legal Aid Casework and The Lord Chancellor  EWCA Civ 1622, 15 December 2014
The Court of Appeal in this case has decided that the Lord Chancellor’s Guidance on Exceptional Case Funding (ECF) is unlawful. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012, section 10 provides for ECF for certain cases that would otherwise be outside scope for Legal Aid in order to avoid, amongst other things, a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing). The Gudanaviciene case involved five Claimants who had immigration cases and who were refused exceptional funding to assist them in the court action they were involved in.
LASPOA 2012 section 10 states:-
(3)…an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Master of the Rolls gave the leading judgment of the Court of Appeal. Dealing with the proper interpretation of LASPOA 2012 section 10 he stated:-
In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination…..The Director may conclude that he cannot decide whether there would be a breach of the individual’s Convention or EU rights. In that event, he is not required by section 10 (3) (a) to make a determination. He must then go on to consider whether it is appropriate to make a determination under section 10 (3) (b). In making that decision, he should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination (para 32).
The Master of the Rolls then looked at whether the guidance is compatible with Article 6 of the European Convention. The Master of the Rolls looked at the leading European Court of Human Rights (ECtHR) judgments on Article 6 and at the Lord Chancellor’s Guidance. He started by analysing the Guidance as follows:-
Para 7 states that section 10 (3) (b) of LASPO should be used ‘in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach’. The only example given of a case where funding may be appropriate is where the case law is uncertain ‘owing, for example, to conflicting judgments’. In our view, this misinterprets section 10 (3) (b). The discretion conferred by this provision is not so severely circumscribed. There is no basis for saying that it may only be exercised in such rare circumstances. The extreme nature of the single example that is given shows how rarely the Guidance contemplates that it will be appropriate to make an exceptional case determination under section 10 (3) (b). Para 9 states that the ECtHR has recognised that there are ‘very limited’ circumstances in which the failure to provide legal aid may amount to a breach of Convention rights. Para 10 states that the threshold for a breach of an applicant’s rights under article 6 (1) is ‘very high’. Para 12 states that in certain ‘very limited’ circumstances, legal aid may be required in order to guarantee right of access to a court in civil proceedings. Para 18 states that the….test is a ‘very high threshold’.
In our judgment, the cumulative effect of these passages is to misstate the effect of the ECtHR jurisprudence. As we have seen, the Guidance correctly identifies many of the particular factors that should be taken into account in deciding whether to make an exceptional case determination, but their effect is substantially neutralised by the strong steer given in the passages that we have highlighted. These passages send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of article 6 (1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal….
The general principles established by the ECtHR are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of article 6 (1) in proceedings which had already taken place. We accept the following summary of the relevant case-law given by Mr Drabble [who represented two of the Claimants]: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts…; (ii) the question is whether the applicants’ appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily….; (iii) it is relevant whether the proceedings taken as a whole were fair…(iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair….; and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent….(paras 44 to 46).
The Master of the Rolls went on to look at whether the Guidance was compatible with Article 8 of the European Convention (the right to respect for private and family life and home). He stated:-
It is not in dispute that in non-immigration cases there are procedural requirements inherent in article 8. In W v UK (1998) 10 EHRR 29, the ECtHR said at para 64:-
‘In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8’ (para 65).
He continued as follows:-
It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6 (1) (whether there has been effective access to court). The article 8 test is broader than the article 6 (1) test, but in practice we doubt whether there is any real difference between the two formulations in the context with which we are concerned. There is nothing in the Strasbourg jurisprudence to which our attention has been drawn which suggests that the ECtHR considers that there is any such difference (para 70).
He went on to state:-
Whether legal aid is required will depend on the particular facts and circumstances of each case, including (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity…. First, we do not accept, that it would normally only be in circumstances “closely analogous” to Airey and P, C and S [two of the leading cases on the question of article 6] that failure to provide legal aid would amount to a breach of article 8. There is no support for this statement in the Strasbourg jurisprudence which has repeatedly applied the test stated in W v UK (paras 72 and 74).
The Government are only appealing one of the five cases and, therefore, it is incumbent on the Director of Legal Aid Casework and the Lord Chancellor to ensure that the Guidance is changed accordingly and that the threshold for the grant of exceptional case funding is brought down to a reasonable level rather than the current threshold which is clearly far too high given the fact that the vast majority of applications for exceptional case funding made since it was brought into force in April 2013 have been refused.