It is surprising, in an age of sophisticated search engines, that the question of how to get legal aid could still be a problem.

Such a problem faced the solicitors consulted by Ronald Brown, following his arrest for breach of an anti-social behaviour order as explained by the Court of Appeal in Brown v The London Borough of Haringey [2015] EWCA Civ 483.

The facts of the case were relatively straightforward. Mr Brown had been arrested for breach of an anti-social behaviour order. A hearing date was fixed to hear the committal application and Mr Brown was advised to obtain representation. This he duly did, but his solicitors then encountered significant problems in securing legal aid.

Their initial enquiry to the Legal Aid Agency (LAA) resulted in their being advised to apply to the magistrates’ court. Their application was then returned by Westminster Magistrates’ Court (pictured) with a terse reply: ‘Sent to Westminster Magistrates’ Court in error. This is a civil matter.’ The solicitors’ next step was to refer the application to the LAA, which unfortunately meant that by the time of the appointed hearing the application had not been determined.

Mr Brown could not afford to pay for representation so he duly presented himself as a litigant in person. The judge appears to have been informed of the solicitors’ difficulty and request for an adjournment, but Mr Brown appears to have assumed that he would not get legal aid and therefore confidently said he was ready to proceed. At the beginning of the second day of the evidence, the court was informed that Mr Brown was in hospital and could not attend. The report suggests this excuse had been given to facilitate absences at earlier stages in the litigation, so the judge decided to proceed. Findings were made and a sentence of 18 months’ imprisonment imposed in his absence.

A few months later Mr Brown received a letter from the LAA, advising that he did not have to make a contribution for his legal aid. This prompted the appeal by his solicitors.

The Court of Appeal considered a number of issues in relation to the findings made by the court as well as the sentence imposed, but what was at the forefront of the appeal was the lack of representation at the initial hearing occasioned by the apparent unavailability of legal aid.

Lord Justice McCombe quoted with approval the remarks made by Mr Justice Blake in Kings Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) where his lordship had undertaken a similar exercise in establishing the availability of legal aid for committal proceedings in the High Court.

Mr Justice Blake had invited the authorities to make relevant changes to avoid the tortuous consideration of the regulations he had had to undertake. While the judgment in Bunning provided a clear answer as to the power to make legal aid available in the High Court, it sadly did not provide an answer to the power to grant legal aid in the county court. The Court of Appeal was thus forced to undertake its own tortuous journey.

Section 29 of the Legal Aid Act 1988 had given the court the express power to grant legal aid, but its repeal by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed such power without expressly providing an alternative. Lord Justice McCombe’s judgment takes you on a journey through various sections of LASPO and the Criminal Legal Aid (General) Regulations 2013 (the regulations).

He concluded that a committal hearing was within the scope of section 9(v) of the regulations for the same reason as found in Bunning. He went on to consider who should receive and consider the application, which involved deeper examination of LASPO and the regulations. The judgment reveals where the power lies to grant legal aid in the Court of Appeal and also in the county court.

It is the director of the LAA who had such power by virtue of section 18 of LASPO. That power could be exercised by the director or through the local magistrates’ court as the director might determine. So the first advice to the solicitors was correct after all.

The court, with a tone of disapproval, described how the solicitors ‘were sent from pillar to post’ trying to find who had the power to grant representation instead of preparing to represent their elderly client. The court was satisfied it represented a serious procedural flaw leading to a failure to hold a fair trial. It amounted to a breach of both the common law and the rights under the European Convention on Human Rights. Although Mr Brown served five months in prison before his release, the court did not send the case back to be redetermined.

The court expressed the firm opinion that all members of the profession, judges, the LAA and the court service should be aware of the right to have legal aid granted in committal applications and to whom such applications should be made. The decision is worthy of reading in full so that should the need arise then ‘chapter and verse’ may be quoted in support.

This case illustrates the importance of representation and the danger of a significant miscarriage of justice occurring when there is a failure to provide such assistance. There is clearly a need on the part of the parliamentary draftsman when preparing legislation to have at the forefront of their mind an express provision to provide for the cost of representation in those quasi-criminal proceedings such as committal applications.

The cost of keeping Mr Brown in prison for five months together with the costs of the appeal must surely dwarf the costs of his representation in the county court.

It is to be hoped that common sense will in future prevail but for now, reminding the LAA of these two authorities may be the only sure way to secure representation.

District Judge Vokes sits at Bow County Court

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