Tag Archives: scope

Some prison law cases back in scope

Following the decision of the Court of Appeal in Howard League for Penal Reform & Anor, R (On the Application of) v The Lord Chancellor [2017] EWCA Civ 244, new regulations have come into force returning some prison law cases to the scope of legal aid.

The Criminal Legal Aid (Amendment) Regulations 2017, in force on 21 February 2018, bring the following types of case back in:

  • Advice and representation for pre-tariff reviews for life and indeterminate sentence prisoners before the Parole Board;
  • Reviews of classification as a category A prisoner;
  • Placement in close supervision and separation centres within prisons.

These cases are funded as criminal legal aid, using advice and assistance and advocacy assistance. The usual means tests apply and payment is the same as for the prison law cases currently in scope. Amended criminal contracts have been issued and there are revised CRM3 and CRM18a forms on the LAA website. The LAA has said it will continue to accept old forms until 31 May 2018.

Congratulations to the Howard League and the Prisoners Advice Service, which have brought this change about following three years of litigation. It is a rare example of the scope of legal aid widening post-LASPO.

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Scope news

News of a couple of recent cases where the scope of legal aid has been an issue:

Firstly, some welcome news via the Court of Protection Handbook blog (another site supporting a LAG book, and invaluable for practitioners in that field). It is a report from Bindmans confirming that the LAA has conceded that a claim for damages under the Human Rights Act made in the Court of Protection is in scope under para 22 of Schedule 1 of LASPO. More here.

Secondly, another in the list of cases where the family courts have identified loopholes in the funding arrangements for care cases. In JC (Discharge of Care Order : Legal Aid) , Re [2015] EWFC B39, a father was refused legal aid to be represented on an application by the local authority to withdraw discharge of a care order. While such matters are in scope, they are not covered by the non-means non-merits provisions, and the father didn’t qualify on means. HHJ Hammerton said:

      In terms of the provision of legal aid it is impossible to rationalise the distinction between defending an application for a care order and defending an application for the withdrawal of permission to discharge a care order, when both applications are made by the local authority. The outcome being sought by the local authority is the same, namely the removal of the child from his parent. However the application made within original care proceedings will attract non-means tested public funding whereas the application to withdraw a discharge of a care order will not.
      The lack of legal representation inevitably causes an imbalance in the effective presentation of the cases advanced by the parties. When, as here, the subject matter is grave and emotive, the absence of representation is particularly inappropriate and unfair.

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False imprisonment claims – High Court clarifies scope

In Sisangia, R (on the Application of) v Director of Legal Aid Casework [2014] EWHC 3706 (Admin) the High Court has clarified the requirements for funding claims of false imprisonment. They are within scope by virtue of para 21  of Part 1 of Schedule 1 of LASPO, which provides:

21. Abuse of position or powers by a public authority

(1) Civil legal services provided in relation to abuse by a public authority of its position or powers.

General exclusions

(2) Sub-paragraph (1) is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs … 3 … of that Part …

Specific exclusion

(3) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence.


(4) For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission –

(a) is deliberate or dishonest, and

(b) results in harm to a person or property that was reasonably foreseeable

(5) In this paragraph –

“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services).

Para 3 of Part 2 says that claims for the torts of assault, battery or false imprisonment are out of scope, but those exclusions are dis-applied by para 21(5), meaning that those torts can be pleaded as part of a claim against a public authority for abuse of powers.

The LAA’s position was that for an application to be granted, it must be shown that the act or omission complained of was deliberate or dishonest and resulted in foreseeable harm, and that there must also be an abuse of position or power – that more than simple negligence is required. It said that both the act itself (in this case, an arrest)  and the absence of lawful authority behind that had to be deliberate or dishonest – that in the case of unlawful arrest and false imprisonment it was necessary to show that the arrest was deliberate or dishonest and so was the lack of lawful authority – that the arresting officer action deliberately or dishonestly arrested knowing there was no legal power to do so, intending to abuse his powers.

Dingemans J held that para 21(4) was a complete definition, not a minimum requirement. If its requirements are made out, then that will be enough to show that there was an abuse of position or powers. Nothing further will be required. Only the act had to be deliberate or dishonest. The arrest was deliberate, it resulted in harm and the harm was foreseeable. It need not be also shown that there was also bad faith or dishonest motivation or that the arresting officer acted knowing he had no power to do so.

This is a helpful decision and should make the granting of funding in cases under para 21 more likely in the future.

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Exceptional cases: High Court widens scope of LASPO and declares guidance unlawful

The High Court recently gave judgement in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin).

The judgement is long and detailed, but repays reading in full, and includes a detailed discussion of the scope of s10 LASPO exceptional cases and the extent to which legal aid should be available in cases outside the scope of Schedule 1. It also finds, contrary to what has been said by the MoJ and LAA to date, that refugee family reunion is in fact in scope.

s10 provides that:

“(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) … is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), 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.”

Collins J concluded that, in respect of the test in 10(3)(a),

Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent. It may for example not be necessary to grant legal aid for more than advice, particularly as the obtaining of advice from a competent solicitor may save further cost by persuading the individual that he has no case or enabling him to present his application in a way which enables the decision maker or court to deal with it expeditiously and without the cost incurred in seeing whether a litigant in person does have valid points. (para 44)

He concluded that the test of “certainty” referred to by Coulson J in M v Director of Legal Aid and Casework [2014] EWHC 1354 (Admin) was the wrong approach; what was required was a high level of probability of a breach.

Collins J went on to consider the s10(3)(b) test in the context of Article 8 ECHR immigration cases, which were the cases before the Court. He concluded that the Lord Chancellor’s Guidance on Exceptional Funding (Non-Inquests) was wrong because it set too high a threshold for the grant of funding. It failed to recognise that Article 8 applies in immigration cases, and carries with it procedural requirements that must be followed even if Article 6 is excluded. (para 51)

Collins J left for consideration in other cases whether the exceptional cases regime breached the Equality Act 2010 and whether it erected unacceptable practical obstacles.

Refusal of legal aid was quashed in all 6 cases. In some, Collins J left it to the a Director to re-consider, in others he directed that legal aid should be granted. Most interesting in the wider context was the case of B, considered at paras 98 – 114.

B is an Iranian refugee who was granted asylum in 2013. She then applied for refugee family reunion with her husband and son. Her solicitors applied for legal aid, and in the alternative exceptional funding, to cover advice and assistance with the claim.

The LAA refused legal aid on the basis that it was outside the scope of Schedule 1 LASPO, and refused exceptional funding because it would not be impossible for her to present her claim and her cousin could help her with English.

Collins J decided that refugee family reunion IS within the scope of LASPO, since para 30 of part 1 of Schedule 1 says “rights to enter and remain…arising from the Refugee Convention” are in scope. “A person who is recognised as a refugee has a right conferred by the Immigration Rules for family unity. As a matter of ordinary English, that right arises from the Convention since the Convention enabled that person to achieve the status of refugee.” (para 105). Parliament had not unequivocally decided to remove family reunion from scope, and so it is in. If this survives any appeal, it is highly significant – both in terms of of the numbers of immigration cases now back in scope, but also because of the approach which could be applied to the interpretation of other parts of Schedule 1.

This is an important judgement which will have implications beyond just immigration cases. Pink Tape has a discussion of the judgement and some thoughts on how it can be used in out of scope family cases, and there will be other areas where it may apply. However, it will almost certainly be the subject of an appeal, and it remains to be seen what the Court of Appeal will make of it.



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Domestic violence protection – extension of criminal legal aid

With effect from today, the scope of criminal legal aid is extended to include proceedings under sections 26, 27 and 29 Crime and Security Act 2010 (domestic violence protection notices and orders) by virtue of an amendment inserting a new Reg 3(2)(t) to the Criminal Defence Service (General) (No 2) Regulations 2001. As a result, Representation Orders will be available in the Magistrates Court subject to the usual requirements of means and merits. The Orders are being introduced in the pilot areas of Greater Manchester, Wiltshire and West Mercia only.

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