M v Director of Legal Aid Casework & Ors

INTRODUCTION

The claimant seeks permission to bring judicial review proceedings in connection with the defendant’s decisions of 27 January and 3 February 2014 which refused her civil legal aid. She had sought funding in order to be represented at the hearing of a witness summons at Isleworth Crown Court in which the Crown Prosecution Service (“CPS”) were seeking disclosure of her confidential counselling records. Because the dispute concerned no more than £12,000 worth of legal services, and because (as set out in Section 2) there has been a convoluted procedural history which, up to a point, does not reflect well on either side, I was initially inclined to think that this was all an unjustified waste of public money and resources. However, on analysis, the application raises a number of potentially important points.

Having set out the history in Section 2 below, and before coming on to deal with the detail of this application for legal aid, I set out in Section 3 below the general approach of the courts to applications for disclosure of medical records. In Section 4, I set out the legal aid framework and then, in Section 5, the claimant’s application for legal aid and the defendant’s decisions. At Section 6, I analyse the defendant’s application of the merits criteria and, in Section 7, I address the absence – in this case – of an exceptional case determination. Thereafter, in the second part of this Judgment at Section 8, I deal with the separate issue involving the guidance recently issued by the Lord Chancellor (“LC”) as to the interplay between Convention rights and the availability of civil legal aid in exceptional cases.

THE HISTORY

The claimant is an Afghan national who fled Afghanistan after being subjected to, or made to witness, extreme violence and abuse. She has been in the United Kingdom for about three years. She does not speak very good English. In 2012 she married a man named C. The marriage only lasted about six months but, during that time, the claimant alleged that Mr C raped her. Mr C is now facing two counts of rape and the trial is due to be heard at Isleworth Crown Court at the end of April.

The Helen Bamber Foundation (“HBF”) is a charity providing support and services to victims of torture, cruelty and human rights abuses. The claimant and her family have been provided by HBF with long term support and the claimant herself has had more than twenty counselling sessions with them, some as part of family sessions, and some one-to-one. It appears that a small part of those counselling sessions (the notes of which apparently run to about three or four pages) deal with, or touch on, the claimant’s abuse at the hands of her husband.

On 20 December 2013, the Crown Prosecution Service (“CPS”) notified the claimant that they were seeking a witness summons in the crown court proceedings so as to gain access to her counselling notes. The summons was general in its nature and sought the notes on the basis that the material therein “might undermine the Crown’s case or may support the defence case”. The claimant opposed the disclosure of her notes, claiming confidentiality. Accordingly, on 10 January 2014, her solicitors made an urgent application for civil legal aid in order that she could be represented by counsel at the hearing of the summons. That application for exceptional case funding and the defendant’s decision(s) to refuse that application are dealt with in greater detail in Section 5 below.

The summons was due to be heard at Isleworth Crown Court on 6 February 2014. Because the claimant’s legal aid application was not thought to have been finally resolved by that date, it was adjourned to 14 March 2014.

The defendant’s second refusal of civil legal aid was dated 3 February 2014. These judicial review proceedings, challenging the refusal of legal aid, were not issued until 25 February 2014. Although Ms Bretherton sought to criticise the claimant for this delay in commencing proceedings, I do not consider that such criticisms are entirely fair, particularly given the difficult situation in which she and her lawyers found themselves following the refusal of funding. But the lack of speed at the outset certainly made everything very tight. A timetable was set by the Administrative Court in the hope of resolving this claim before the adjourned hearing of the crown court summons on 14 March 2014. Ironically, the Administrative Court hearing (a rolled-up hearing, to deal with both permission and, if granted, the substantive dispute) was fixed for that very day. However, on 14 March 2014, everyone was agreed that this coincidence of timing did not render these judicial review proceedings redundant because, if the defendant’s refusal was quashed, funding could still be granted retrospectively. The defendant has now hardened his stance on that issue, a point to which I return at paragraph 54 below.

The Administrative Court hearing on 14 March 2014 was also complicated by the fact that the claimant wished to amend her grounds so as to join the LC as a defendant. My initial view was that this was unnecessary in view of the relatively narrow compass of the defendant’s original decision and the challenge to it, but I eventually concluded that, although the LC did not need to be anything other than an Interested Party, potentially important issues had been raised as to his guidance on exceptional case funding (which was said to be “incorrect”), and it seemed sensible and cost effective to deal with those matters as part of the overall dispute between the parties. It was for that reason that, on 14 March 2014, having heard full argument on most of the points arising out of the original application, I adjourned the balance of the hearing until after the LC had had an opportunity to respond to the amended grounds. The second part of the hearing therefore took place, with the LC represented by Mr Eadie QC, on 14 April 2014.

As it happens, the hearing in the crown court on 14 March 2014 was also inconclusive. HHJ Parker QC ruled that four pages of the counselling notes should be disclosed to the CPS but then went on to say that the witness summons could not be executed before 4:00pm on Friday 21 March 2014 and that the claimant could, in the interim, seek an order for non-disclosure of the documents on the grounds of public interest immunity. This was a slightly unusual procedure to adopt: paragraph 8-12 of Archbold 2014 makes clear that a party in the position of the claimant in these proceedings (i.e. a recipient of the summons) is entitled to resist disclosure on public interest immunity grounds without having to issue her own application.

Be that as it may, the claimant made the application for public interest immunity within the prescribed time period. There was then a third hearing, on 3 April, before HHJ Moore, again at Isleworth. The judge looked at the four pages of counselling notes and reviewed the legal authorities. He concluded that the counselling notes were not material evidence because there was nothing in them that would “remotely undermine the prosecution case or strengthen the defendant’s case”. He therefore found that there was no disclosable material. He went on to find that, if he was wrong about that, the claimant was entitled to claim public interest immunity anyway: that it was not in the public interest to disclose the counselling notes and that to do so would be a disproportionate interference with the claimant’s Article 8 rights.

At the hearings on 14 March and 3 April 2014, the claimant was represented by counsel, appearing pro bono, who had also drafted all the necessary paperwork (including skeleton arguments and the application for PII). It is open to debate whether the claimant would have been able properly to participate in that process without that representation.

APPLICATIONS FOR DISCLOSURE OF MEDICAL RECORDS

It is becoming increasingly common for the CPS to issue witness summonses of this kind, seeking medical and other such records concerning a complainant in an assault or sex case. In my experience, these applications are often made somewhat lazily, in the belief that, if there are some records which may have some relevance, the CPS is fulfilling its obligations to the defendant, and to the administration of justice, by issuing the witness summons and then putting the burden of resolving the issues raised onto others (namely the defendant, the complainant and the judge). In my view, considerably greater analysis is required before any such summons is issued. As a general rule it is not good enough, as this witness summons seeks to do, merely to require the documents on the general basis that they might undermine the prosecution or help the defence.

Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 provides as follows:

“Issue of witness summons on application to Crown Court

2.―

(1)

This section applies where the Crown Court is satisfied that—

(a)

a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and

(b)

it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or thing.

(2)

In such a case the Crown Court shall, subject to the following provisions of this section, issue a summons (a witness summons) directed to the person concerned and requiring him to—

(a)

attend before the Crown Court at the time and place stated in the summons, and

(b)

give the evidence or produce the document or thing.”

The section stipulates that the evidence must be “material”. It must therefore be both relevant and admissible. A summons requiring the production of material which is not prima facie admissible is liable to be set aside: see R v Cheltenham Justices, ex parte LC for Trade [1977] 1 WLR 95. And in R v Derby Magistrates’ Court ex parte B [1996] AC 487, where the legislation in question also talked about a document “likely to be material evidence”, the House of Lords held that this contemplated the production of documents which were immediately admissible per se, without more. It could not be used to obtain disclosure of documents which might, or might not, prove to be admissible depending on the course of the trial. A good example is a document which contains a statement which, depending on the witness’s oral evidence, might be put in cross examination as a previous inconsistent statement. Such a document was held in Derby not to be admissible per se, so it failed the “material evidence” test.

The rights and obligations of an individual who is the subject of such medical notes are clearly set out in the decision of the Divisional Court in R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin). In that case, May LJ set out in detail how and why a complainant was entitled to have the summons served on him or her, and was entitled to make representations about their disclosure. Relevant extracts from his judgment are as follows:

“6.

The application in the present case requested a summons directed to the NHS trust to produce medical records. It is a fundamental principle that a person’s medical records are confidential…

19.

The confidentiality of a patient’s medical records belongs to the patient. For the particular importance of confidentiality in psychiatric medical notes, see Ashworth Hospital Authority v MGN Ltd   [2002] 1 WLR 2033, para 63.

20.

If, therefore, the court was to consider ordering disclosure in breach of confidentiality of B’s medical records, it could only do so if this was proportionate, in accordance with the law and necessary, I suppose, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In simple terms, it required a balance between B’s rights of privacy and confidentiality and W’s right to have his defence informed of the content of her medical records.

21.

For reasons which follow, I do not need to address submissions, made in this court by Mr Lock for the NHS trust, that the medical records would not have been admissible at W’s trial, intended as they were only to challenge B’s credibility in cross-examination. That may or may not be correct, but the antecedent procedural deficiencies, to which I now turn, and which in article 8 terms were substantive considerations, make a decision on this point unnecessary. I do however accept Mr Lock’s general submission that it would be wrong to have the mind set which supposes that applications for disclosure of medical records of a prosecution witness will usually succeed even in the face of article 8 objections.

…

25.

In my judgment, procedural fairness in the light of article 8 undoubtedly required in the present case that B should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant. B was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention rights. This in substance is what the requested declarations seek and I would grant them.

26.

Mr Fordham, B’s counsel, explains that the first draft declaration was framed with a view to a right to make oral representations; for that is what the person to whom the summons will be directed, if he seeks to be heard, is entitled to under the present rules. In the light of the present rules, that seems to me to be correct in the present case.

27.

I would firmly reject the suggestion that it would have been sufficient for the interest of B to be represented only by the NHS trust. The confidence is hers, not theirs. Their interests are different. They have a wider public interest in patient confidentiality generally and may have particular interests relating to her care which could conflict with hers. Mr Lock submits that the trust should be able to advance these wider public interest submissions against disclosure without having the role cast on it of acting also as an advocate for the patient's confidentiality. I agree. I agree also that the trust should not be saddled with the heavy burden of making inquiries of the patient, finding reasons why he or she might object and putting those reasons before the court. Further, there may be material in the notes which the trust can legitimately withhold from the patient under section 7 of the Data Protection Act 1998 as modified by the Data Protection (Subject Access Modifications) (Health) Order 2000 (SI 2000/413).

…

35.

I end by reiterating that my decision is limited to the facts of this case. It would not be right to pre-empt the more general decisions that the Rule Committee may make. I am quite clear, however, that in the present case B should have been given notice of the application and given the opportunity to make representations, orally if she had wished. It was not sufficient for the court to delegate her representation to the NHS trust alone. In fact, her independent views were not received in any form before the order was made. There was an oral hearing, but she was not given the opportunity to attend it.”

As a result of the decision in Stafford, the Criminal Procedure Rules were changed so as to accommodate the rights identified by May LJ. Rule 28.5 now provides as follows:

“Application for summons to produce a document, etc.: special rules

28.5.

―

(1)

This rule applies to an application under rule 28.3 for a witness summons requiring the proposed witness—

(a)

to produce in evidence a document or thing; or

(b)

to give evidence about information apparently held in confidence, that relates to another person.

(2)

The application must be in writing in the form required by rule 28.4.

(3)

The party applying must serve the application—

(a)

on the proposed witness, unless the court otherwise directs; and

(b)

on one or more of the following, if the court so directs—

(i)

a person to whom the proposed evidence relates,

(ii)

another party.

(4)

The court must not issue a witness summons where this rule applies unless—

(a)

everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b)

the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.”

Accordingly, the claimant’s application for exceptional case funding must be seen against a background where she has a clear and unequivocal entitlement to be heard on a witness summons which seeks to go behind the confidentiality of her medical records. It was in order to assert that right that she sought civil legal aid funding on 10 January 2014.

THE LEGAL AID FRAMEWORK

The first part of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”) is concerned with the provision of civil legal aid. Section 1 sets out the LC’s functions, whilst Section 4 deals with the position of the Director of Legal Aid Casework. Section 4(3) makes plain that the Director must comply with directions given by the LC and must have regard to guidance given by the LC. But Section 4(4) makes plain that the LC “must not give a direction or guidance about the carrying out of those functions in relation to an individual case”.

Section 9 of LASPO deals with those cases for which civil legal aid will generally be available. It is in these terms:

“9.

General cases

(1)

Civil legal services are to be available to an individual under this Part if—

(a)

they are civil legal services described in Part 1 of Schedule 1, and

(b)

the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).”

Part 1 of Schedule 1 sets out those types of cases for which civil legal aid is available. They are the cases which Parliament has identified as being those where there is the greatest need of civil legal aid. They include cases concerning the care, supervision, and protection of children, cases about special education needs and the like. The reference to whether or not the individual “qualifies” for the services is a reference to both the means and the merits criteria, which are dealt with in greater detail below.

Section 10 of LASPO deals with the provision of legal aid in those cases falling outside Part 1 of Schedule 1. It is in these terms:

“10.

Exceptional cases

(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) or (4) 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…”

In this way, civil legal aid may be provided for in an exceptional case (that is to say, a case other than those described in Part 1 of Schedule 1) in two instances. The first is where it is necessary to provide legal aid because the failure to provide it would be a breach of the individual’s Convention rights. That is, on any view, a very high test. The second is where it is appropriate to do so, having regard to any risk that failure to provide civil legal aid would be a breach of the individual’s Convention rights. This is plainly a lower threshold because it envisages a risk, rather than a certainty, of a breach of Convention rights: how much lower was the principal subject of the debate in the second part of this case.

Section 10(2) makes plain that, for civil legal aid to be available in exceptional cases, the applicant must demonstrate, not only that it is necessary or appropriate to grant civil legal aid in the circumstances set out in 10(3), but that, in addition, both the usual means and merits criteria referred to in Section 9have also been met. That explains the reference in 10(2)(b) to determining that the individual “qualifies” for the service.

The means criteria does not need to be considered further here, it being accepted that the claimant meets the financial test for civil legal aid. The merits criteria are set out in the Civil Legal Aid (Merits Criteria) Regulations 2013. Since this was an application for full representation, the governing regulation was Regulation 41. That provides:

“Criteria for determinations for full representation

41.

An individual may qualify for full representation only if the Director is satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) and the following criteria are met—–

(a)

the cost benefit criteria in regulation 42;

(b)

the prospects of success criterion in regulation 43; and

(c)

if the individual’s claim forms part of a multi-party action and is primarily a claim for damages or other sum of money in which the likely damages do not exceed £5,000, the multi-party action damages criterion in regulation 44.”

Accordingly, there are three individual criteria that had to be met in this case and which can conveniently together be called ‘the means criteria’: the standard criteria (Regulation 39); the costs benefit criteria (Regulation 42); and the prospects of success criteria (Regulation 43).

(a) Regulation 39 provides as follows:

“Standard criteria for determinations for legal representation

39.

An individual may qualify for legal representation only if the Director is satisfied that the following criteria are met—

(a)

the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;

(b)

the case is unsuitable for a conditional fee agreement;

(c)

there is no person other than the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings;

(d)

the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;

(e)

there is a need for representation in all the circumstances of the case including—

(i)

the nature and complexity of the issues;

(ii)

the existence of other proceedings; and

(iii)

the interests of other parties to the proceedings; and

(f)

the proceedings are not likely to be allocated to the small claims track.”

The Regulations contain nothing of relevance in respect of Sections 10(2)(a) and 10(3) of LASPO, in connection with an exceptional case determination. However, the LC has recently provided guidance in respect of these Sections. The guidance is contained in a lengthy document entitled ‘Lord Chancellor’s Exceptional Funding Guidance’. For present purposes, it is necessary to set out only some of the early paragraphs of that document, which appear to comprise some kind of introductory or general section (although there is no heading, and the general structure and sequence of the document is not easy to discern).

The guidance begins in this way:

“1.

This guidance is issued by the Lord Chancellor to the Director of Legal Aid Casework under section 4(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘the Act’). The Director must have regard to this guidance in determining whether civil legal services are to be made available under section 10(2) and (3) of the Act. As, in practice, applications will be considered by caseworkers on the Director’s behalf, this guidance is addressed to caseworkers.

…

Section 10(3)(b)

6.

Section 10(3)(b) does not provide a general power to fund cases that fall outside the scope of legal aid. It is to be used for rare cases and provides that an exceptional case determination may be made where the risk of the breach of the rights set out in section 10(3)(a) is such that it is appropriate to fund.

7.

The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).”

The emphasis above, which is mine, highlights the particular passage about which the claimant complains, and with which I deal in greater detail in Section 8 below.

The guidance also contains a good deal of detail about Article 6, Article 8 and other Legal Aid Regulations. No issue arose before me in respect of any of those later paragraphs.

THE APPLICATION AND THE DECISIONS

The application issued on behalf of the claimant and dated 10 January 2014 was for exceptional public funding to allow the claimant to be represented at Isleworth Crown Court to resist the application for a summons requiring disclosure of her counselling records. The application stated that the ground for opposition was based on the confidentiality of the records. It made a number of points about Articles 6 and 8 of the ECHR. The value of the legal services was said to amount to £12,166.60.

The defendant refused funding in a written decision dated 27 January 2014. The main part of the decision was in the following terms:

“This is not a case for damages. The benefit to your client is to retain her privacy and confidential relationship with the counselling service she has entrusted with her private and sensitive matters. However, as your client is a victim in case of rape and sexual assault against her husband and will therefore be expected to give evidence at the trial of those criminal charges, it is unclear what the benefit to your client is in respect of the three pages relating to the two individual sessions she had in which she did discloser ill-treatment by her Husband. I do not agree that those notes would not be relevant to the criminal proceedings given their content. In so far as those three pages of note are concerned therefore I am not satisfied that the “reasonable private paying test” is met.

You have assessed the prospects of success as good. And indeed in your further email dated 23rd January 2014 you state they believe the prospects of success to be 80%. I am of the view that the prospects of success in relation to those notes relating to matters not associated with the rape and sexual assault charges the husband are facing is good to very good as this would not amount to material evidence. However, in you submissions to the court you concede (in your conclusion) that the court may require disclosure of limited counselling notes (the three pages of notes relating to the ill treatment she suffered at the hands of her husband). Given the disclosure test to be applied, I am of the view that the prospects of successfully defending the disclosure of those limited notes are poor. As stated above, I am of the view those notes would be relevant to the criminal proceedings relating to rape and sexual abuse by her husband given their content and the duty of disclosure.

In their email dated 23rd January 2014 you state “Helen Bamber Foundation is supporting Ms M’s claim and refuses to disclose and is considering representation at the hearing” and further state in your submissions (at paragraph 1) to the court on behalf of your client that “The Respondent HBF supports Ms M’s position, supplies relevant evidence relating to its own involvement in this matter, and has asked those acting for Ms M to communicate its wish to reserve the right to appear in these proceedings in due course should it deem it necessary to do so”. As HBF is the organisation served with and therefore the Respondent to, the summons and given the above, I am not satisfied that Regulation 39(c) is satisfied. HBF could reasonably be expected to respond to these proceedings on behalf of the foundation and your client.”

It is right to note that the letter suggests that Legal Help might be available for the claimant. At the hearing on 14 March, Ms Bretherton sought to persuade me that, if this offer had been accepted, much of the work that has actually been done on behalf of the claimant, such as the lengthy submissions provided to the crown court, could have been undertaken pursuant to that provision. I reject that submission. It is quite clear that, in the context of the decision letter itself, Legal Help was designed to help the claimant with the formalities of agreeing that some parts of the notes would or should be disclosed, even if other parts were not. The detailed written submissions and the other material prepared by Mr Adam Sandell of counsel, provided pro bono on behalf of the claimant in the crown court proceedings, would not have been within the scope of the Legal Help offered in this letter.

That point can be made good by reference to what actually happened. Ultimately, there were three hearings in the crown court in connection with these records. At the last hearing, because of the procedure adopted by HHJ Parker QC, the burden was on the claimant to demonstrate how and why the records were covered by public interest immunity. It is simply wrong to suggest, with hindsight, that the vague reference to Legal Help in the defendant’s letter of 27 January 2014 would have funded the preparation of counsel’s submissions or any of the other work done on the claimant’s behalf.

On 29 January, the claimant’s solicitors wrote a letter before claim which took a number of points, and included a specific reference to the Stafford case noted above. On 3 February 2014, the defendant maintained the refusal of funding, and on the same grounds. It is common ground that in neither of these decision letters did the defendant ever consider or embark upon an exceptional case determination under Section 10(2)(a) above. The application was refused under Section 10(2)(b) (the means criteria). In consequence, the defendant considered that it was unnecessary to make an exceptional case determination as well. I deal with that issue in Section 7 below.

THE APPLICATION OF THE MERITS CRITERIA

The first reason that funding was refused was because the defendant concluded that the claimant had failed to establish the standard criteria under Section 39. It was said that there was another person (HBF) who would benefit from the proceedings. The defendant’s argument in the decision letter was that, “as HBF is the organisation served with and therefore respondent to the summons…I am not satisfied that regulation 39(c) is satisfied. HBF could reasonably be expected to respond to these proceedings on behalf of the Foundation and your client.”

I am no doubt that this view was wrong in principle. The Stafford case makes clear that the individual whose records are the subject of an application has different rights to the organisation that retains those records and that it was wrong in principle to argue that their rights were the same. The Stafford case was expressly drawn to the defendant’s attention but it seems to have been ignored.

At the second hearing before me, on 14 April 2014, Ms Bretherton argued on behalf of the defendant that it was not said that the interests of HBF and the claimant were precisely identical, but that they were similar. She appeared to rely on this distinction as a justification for the original decision. I reject that submission. First, I think on any fair reading of the decision letter, the defendant was saying that the interests of the claimant and HBF were the same, and Ms Bretherton made that very submission orally on 14 March 2014. But in any event, I consider that the defendant was wrong to rely on any similarity argument for the reasons noted in the Stafford case: in law, the interests of HBF and the claimant were different. Accordingly, in my view, the finding decision was flawed for that reason alone.

The defendant concluded that the chances of successfully defending the disclosure of the limited notes were “poor”, because the notes were relevant to the criminal proceedings. Again it appears from the letters that the test that was applied was that the notes were relevant because they might undermine the prosecution or support the defence. Without any proper consideration of how or why these notes would be relevant in these criminal proceedings, I consider that the defendant’s stated reasoning was insufficient.

But the more significant problem with this part of the decision letter is that relevance is not the applicable test. The notes would only be disclosable under the Criminal Procedure Rules if they amounted to “material evidence”, and that it was in “the interests of justice” for the documents to be produced. Whilst relevance is a part of that consideration, it not the only factor: see paragraphs 12 to 17 above. The decision letter fails to deal with questions of admissibility at all.

In particular, there seems to have been no consideration of the confidentiality/public interest immunity issue which, in the event, loomed so large in the crown court proceedings. Again, given the clear reference to Stafford in the application letter, it is not at all clear why this element of the application was ignored by the defendant. Of course, the PII aspect of the case relates back to admissibility, which the defendant failed to consider. I accept, up to a point, Ms Bretherton’s argument that this omission may partly be explained by the fact that the application letter emphasised only the issue of relevance. But in my view, since the “material evidence” test is identified in the application, questions of admissibility should have been considered by the defendant. They were not.

I consider that if they had been, the defendant would not have concluded that the prospects of success were poor. Indeed, in my view, the fact that the application related to ‘material’ evidence, and therefore involved a consideration of questions of admissibility as well as relevance, meant that the prospects of successfully opposing the application were always quite good. The proof of that pudding has been in the eating: after an exchange of detailed submissions and counter-submissions in the crown court, HHJ Moore ruled that the documents were irrelevant and that, if he was wrong about that, they were covered by public interest immunity anyway, because they were confidential. In essence, everything which the claimant wished to assert at the hearing of the summons has ultimately been successful.

During her submissions on 14 April 2014, Ms Bretherton maintained that the opposite was the case. She said that HHJ Parker QC had ruled that the documents were relevant and that a PII application had to be made in order to prevent their disclosure, which was not an application envisaged by the claimant’s original application for exceptional case funding. With great respect to Ms Bretherton, I consider that argument to fail at every level. The original application for exceptional case funding was based on the claimant’s desire to protect the confidentiality in her notes. The assertion of that right has been vindicated. The fact that the result was obtained following the unusual procedure set out by HHJ Parker QC (which put the onus of claiming PII on the claimant) is nothing to the point. The claimant’s solicitors could not have envisaged that precise course of events when they made their original application for exceptional case funding in January. In the result, the claimant has been entirely successful, a result which, in my view, was likely from the outset.

Accordingly, this seems to me to be a further reason why the defendant’s decision letters were flawed. They applied the wrong test and therefore reached the wrong conclusion as to the claimant’s chances of success.

The third reason why the application was rejected was because the defendant found that the claimant did not satisfy the test of reasonable private paying individual. That does not seem to me to add anything further because, on the facts of this case, the reason why that test was said not to have been met was because of the prospects of success, a point on which the defendant’s approach was fundamentally flawed.

In my view, the decisions of 27 January 2014 and February 2014 were flawed. They relied heavily on the presence of HBF, which was illegitimate; they failed to consider the issue of the relevance of the notes in any detail or the issue of admissibility at all; and they applied the wrong test so as to arrive at an erroneous conclusion about the prospects of success. For those reasons, I grant permission to bring judicial review proceedings and, on the substantive application, I quash the decisions of 27 January and 3 February 2014 as being irrational and unreasonable in law.

On one view, it is therefore unnecessary for me to go on to consider the remaining parts of the claimant’s application. However, it seems to me sensible that I do so, partly because the issues were argued out in detail before me; and partly because this application for exceptional case funding will now have to be reconsidered. The claimant always maintained that there should have been an exceptional case determination here and that, had there been one, the protection afforded by Article 6 and 8 would have led the defendant to grant legal aid. Those issues may have some bearing on the redetermination. I therefore consider first the question of sequence and then go on to consider the requirement relating to exceptional case determination.

SEQUENCE

As already noted, the defendant did not undertake an exceptional case determination in this case. It was said that this was unnecessary in view of the fact that the defendant considered that the standard criteria had not been met. Originally, the claimant maintained that the failure to undertake an exceptional case determination (“ECD”) was itself an error of law which vitiated the decisions of 27 January and 3 February 2014. However, at the subsequent hearing on 14 April 2014, Mr Bowen QC expressly rode back from that submission, although he still maintained that there should have been an ECD on the facts of this case.

I can see that, where it is necessary for a claimant to demonstrate that a number of different criteria have been satisfied (means, merits, exceptional case), it may be unwieldy, expensive and unnecessarily onerous to expect the defendant to address each criteria on each application, once it has become apparent to the defendant that at least one of the criteria simply cannot be met. On the other hand, Section 10(2) has been drafted on the basis that the ECD at sub-section (a) arises before the ‘usual’ means and merit determinations at sub-section (b). There is some sense in that: for example, if an ECD results in a view favourable to the application, it may be that this would shape the defendant’s approach to the merits criteria. That seems to me to be the only possible explanation for the drafting of Section 10(2) LASPO which puts the ECD first.

As a matter of generality, therefore, I consider that, in a claim for exceptional case funding, the defendant will usually be required to consider the ECD first. Although that did not happen here, Mr Bowen QC concedes that this was not, of itself, an error of law. What he does say, however, is that when an ECD is undertaken, it should not be done by reference to the LC’s guidance which, he argues, is incorrect.

ECDs UNDER SECTION 10 OF LASPO

I propose to deal with the issues that arose in this way. Having set out Articles 6 and 8, and the general position as to the claimant’s right to legal aid, I then go on to address, first, the level of risk required to trigger Section 10(3)(b), and second, the terms of the LC’s guidance in connection with that risk.

There are two caveats which lead me to be (I hope understandably) cautious about this last part of the Judgment. First, since there was no ECD here as a matter of fact, these observations are strictly obiter. Second, I am told that the Divisional Court will be dealing with a range of cases in May 2014 which will consider various aspects of LASPO dealing with legal aid. Although I do not know what points will arise in that hearing, there may be an overlap between those cases and this aspect of the current case. I am anxious to leave to the Divisional Court all guidance on any matters which do overlap.

Article 6 and 8 of the ECHR provide as follows:

“Article 6 – Right to a fair trial

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

…

Article 8 – Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The first issue is whether, in connection with the disclosure of her counselling notes, the claimant has a civil right at all (because a claim for legal aid on the basis that a failure to provide it would be a breach of Article 6 could only be advanced if the claimant had an underlying civil right in the first place). Although the defendant and, more faintly, the LC both suggested that the claimant’s claim to confidentiality was not a civil right requiring determination, and therefore Article 6 was not engaged, in my view that argument is erroneous. Indeed, I consider that there are three separate ways in which the claimant can show a clear civil right to prevent the disclosure of her confidential counselling records.

First, she has such a right under the domestic law: see, for example, Campbell v MGN [2004] UKHL 22. Secondly, she has an equivalent right under the Data Protection Act 1998. And thirdly, I consider that she has such a right under Article 8. In MS v Sweden [1999] 28 EHRR 313, the ECHR concluded that the right to confidentiality in medical records under Article 8 was a civil right albeit, on the facts of that case, one to which Article 6(1) was not applicable because of other statutory provisions which were applicable to the applicant’s records in Sweden. Those provisions do not apply here. In addition, at paragraph 41 of the Judgment, I note that the ECHR confirmed that “the protection of personal data, particularly medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention.”

For these reasons I conclude that the claimant does have a civil right for the purposes of Article 6. It was of course the nature, scope and ultimate vindication of that right which was in issue in the crown court proceedings.

At one point Ms Bretherton suggested that, even if there was a civil right, the point was entirely academic now because of the ruling of HHJ Moore. It takes a certain amount of chutzpah to say to the claimant: “Well, you did not have a civil right to assert confidentiality in your counselling records but, if you did, the position is now academic because you have successfully asserted that right, despite our refusal of civil legal aid”. I do not accept the submission. The lawyers acting for the claimant in the crown court were acting pro bono. If it is subsequently decided by the defendant that the claimant is entitled to legal aid after all, then that can be backdated pursuant to Regulation 68(1) of the Civil Legal Aid (Procedure) Regulations 2012, to cover the work which has so far been done. The point is therefore far from academic.

The next issue is whether the claimant had any kind of general entitlement to legal aid in order to assert that civil right of confidentiality. The answer is obviously in the negative. There is no mandatory entitlement to civil legal aid, save in exceptional cases: see paragraph 47 of R (Howard League) v Lord Chancellor [2014] EWHC 709 (Admin/DC). Whether Articles 6 or 8 of the ECHR require legal aid to be provided in a civil case is a question to be determined on the particular facts and circumstances of the individual case: see Steel and Morris v United Kingdom [2005] 41 EHRR 22 at paragraph 61. In particular, what matters is the importance of what is at stake, the complexity of the law and procedure, and the vulnerability of the applicant and/or the applicant’s ability to represent him or herself. As Mr Bowen QC said, for there to be a breach of Article 6 or 8 in this case, the absence of civil legal aid must “impair the very essence of the [claimant’s] right”.

In addition, it has been repeatedly stressed that States have a “free choice of the means to be used in guaranteeing litigants the [Article 6] rights”: see paragraph 60 of Steel and Morris v United Kingdom. A legislative regime, such as that provided by LASPO, setting out both a merits and a means test, has been held to be an appropriate way for the provision of civil legal aid to be regulated by Member States (paragraph 62 of Steel and Morris).

Accordingly, I conclude that the claimant in the present case has a relevant civil right which is not academic, but she has no general entitlement to civil legal aid in order to assert that right. The remaining issue is whether she may be able to demonstrate an entitlement to civil legal aid pursuant to Section 10 of LASPO. The remaining paragraphs of this Judgment are concerned only with general considerations relating to any subsequent ECD in this case.

There was some debate before me as to what is meant by an “exceptional case” in Section 10 of LASPO. The defendant and the LC suggested that this meant not only a case that was outside Part 1 of Schedule 1 of LASPO, but also a case that was exceptional in its wider meaning, namely a case that was highly unusual or very much out of the ordinary. I do not accept that submission. It seems to me that, as a matter of statutory interpretation, Section 10 of LASPO is dealing with those cases which fall outside Part 1 of Schedule 1 of the Act. They are therefore exceptional, in that they are an exception to the general regime of the Act, which is that civil legal aid is only available for those cases falling within Part 1 of Schedule 1. In my view, there is no wider meaning (and certainly no magic) in the term “exceptional case”.

These are the cases where it is necessary to provide civil legal aid because a failure to do so would be a breach of the applicant’s Convention rights. It was, I think, common ground that such cases would be extremely rare. They would require the defendant to be able to identify, in advance, a case where the non-provision of civil legal aid would, without qualification, be a breach of the applicant’s Convention rights. That requires complete certainty on the part of the defendant at the outset and therefore requires a very high threshold.

Although at one point in his submissions, Mr Bowen QC suggested that the claimant was in that category. I do not believe that that is a realistic assessment of her application. There is nothing in the application for funding which would have indicated to the defendant that a failure to provide civil legal aid would definitely, and without qualification, be a breach of the claimant’s Convention rights. By the same token, I do not accept the related submission that, because the Divisional Court in Stafford said that it was unlawful not to give an individual the opportunity to make representations about the disclosure of their own medical notes, it was automatically unlawful not to provide them with funding to allow lawyers to make those representations on their behalf. There is no corollary between the common law right of access to a court and the provision of legal aid (see paragraph 47 of Howard League). Whether such funding will be provided or not will always depend on the facts of the individual case and the operation of LASPO.

This alternative provision is much more likely to arise in practice. These are the cases where complete certainty is impossible but where, instead, the defendant has to weigh up the risk that a failure to provide legal aid would be a breach of the individual’s Convention rights. That is plainly a lower test than that required by Section 10(3)(a). But the issue between the parties was: how low was that threshold? On behalf of the claimant, Mr Bowen QC said that the threshold was not higher than “a real risk” of a breach, or “a real possibility” of a breach. He said there was in practice no difference between those two formulations. Although Mr Eadie QC did not formulate a precise test, he said that the threshold was considerably higher than that.

Mr Bowen QC relied on two strands of authority in support of his postulated test of “real risk” or “real possibility”: the Strasbourg jurisprudence concerned with third party removals and the risk of a breach of Article 3; and the domestic case law dealing with challenges to government policy on the basis that it was or might be unlawful.

It is unnecessary to set out of all of the relevant Strasbourg jurisprudence dealing with removals. It is sufficient for these purposes simply to refer to the decision of the Supreme Court in R (EM Eritrea) v Secretary of State for the Home Department [2014] UKSC 12. This was a case under Article 3 concerned with the risk of inhuman or degrading treatment following removal. Lord Kerr, who gave the leading judgment, said that the matter needed to be remitted to the Administrative Court “to determine whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention.” I should add that the ECHR cases use “a real risk” and “a real possibility” interchangeably, indicating that there is no meaningful distinction between the two. For further support for the proposition that they mean the same thing, see Re Medicaments [2001]1 WLR 700 where, at paragraph 85, Lord Phillips said that “a real possibility” and “a real danger” were “the same”.

As to the domestic case law, Mr Bowen QC relied on a number of authorities. In R (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin), Silber J indicated that various exceptions introduced by a policy document in 2010 “should be declared unlawful if there was an unacceptable risk or “a serious possibility that the right of access to justice of those subject to them will be always curtailed.” Amongst others, I was also referred to the decision of Foskett J in MK v Secretary of State for the Home Department [2012] EWHC 1896, which was again concerned with lawfulness of policy, where the judge applied the words of Lord Hope in Munjaz v Merseyside NHS Trust [2006] 2 AC 148:

“80.

I would approach this issue therefore by asking myself whether [the hospital] gives rise to a significant risk of ill-treatment of the kind that falls within the scope of the article…

81.

The risk which must be considered is whether a patient might suffer ill-treatment of the required level of severity as a result of being kept in seclusion under [the hospital’s] Policy for longer than would have been the case under the Code.”

I do not accept Mr Bowen QC’s submissions that the test in Section 10(3)(b) is as low as merely a “real risk” or a “real possibility” of a breach of the claimant’s Convention rights. There are three reasons for that. First, I do not consider that the Strasbourg removal cases are of any direct relevance. It seems to me self-evident that the unqualified rights under Article 3 in respect of torture and degrading or inhuman treatment require a different (and lower) test for risk than the entitlement or otherwise to civil legal aid. Convention breaches in respect of the former are generally much more significant, with much graver consequences, than the latter. Thus, when considering the amount of risk required, the former will inevitably require a lower threshold than the latter.

Secondly, as to the domestic law on which Mr Bowen QC relied, I am wary of transposing tests from one sort of public law case to another. That is particularly so given that the precise test to be applied in challenges to lawfulness of policy is not entirely settled. In this regard I refer in particular to the recent decision of Cranston J in R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2013] EWHC 2492 (Admin), where he identified three possible ways in which a court may conclude that government policy was unlawful. The first was where the policy would, if followed, lead to unlawful acts of decisions: see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The second was the “significant risk” test identified in Munjaz (above). And the third, as set out in R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, justified judicial intervention “to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decision and inheres in the system itself.” The judge adopted this third (and very stringent) test. But whether they are taken together or separately, it might be said that all three of these approaches require a much higher test than the one for which Mr Bowen QC contends in the present case.

That view is confirmed in paragraphs 51 and 52 of the judgment of Cranston J where he said:

“50.

My conclusion is that what I have termed the wider test - a policy giving rise to an unacceptable risk of unlawful decision-making - should be avoided. It did not have the support of the Court of Appeal in Medical Justice. Foskett J’s decision in MK is firmly based on Munjaz. What the authorities demand is that the policy must lead to unlawful action, or that there be a very high risk or an inevitability of that occurring: see Gillick and the Court of Appeal in Medical Justice. To put it another way there must be a proven risk of unlawfulness, going beyond the aberrant and inhering in the system itself: see Refugee Law Centre. In Article 3 cases there need only be a significant risk of unlawfulness flowing from the policy: see Munjaz. The lower threshold where a policy raises Article 3 issues is justified because of the unqualified nature of the right that article confers.

52.

In my view these high thresholds are justified, first, for evidential reasons…Secondly, there are institutional and constitutional limits to what the courts should determine…For a court to strike down a policy because the risk of unlawfulness is “unacceptable” risks, in my view, going over the line. Especially with social and economic policies it has long being recognized that government is entitled to a wide margin of appreciation. The high thresholds I have identified in the case law recognise this.”

I note that the decision in Tabbakh is currently on appeal, but this seems to me (with respect) to be a sensible and balanced summary of the cases where the degree of risk has been considered by the courts in connection with a potentially unlawful policy, and I adopt a similar approach here.

Thirdly, by reference to a different area of civil law, I conclude that the tests put forward by Mr Bowen QC, with their emphasis on a real risk or a real possibility of breach, set too low a threshold in the context of the LASPO regime. As is well known, a party in civil ligation is entitled to summary judgment if, pursuant to CPR 24.2(a)(ii) the defendant has no real prospect of successfully defending the claim. The authorities demonstrate that a “real prospect” is a relatively low threshold. It just means “more than fanciful”: see Swain v Hillman [2001] All ER 91. ED & F Mann Liquid Products Ltd v Patel [2003] EWCA Civ. 472 is authority for the proposition that a case can be held to have a real prospect of success even if it is improbable, just as long as it is better than being “merely arguable”. That approach was summarised by Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England (No. 3) [2001] 2 All ER 513 where he said that “the criterion which the judge has to apply under CPR Part 24 is not one of probability; it is absence of reality.”

At paragraph 18 of his final written submissions, Mr Bowen QC appears to accept that his formulation achieves a threshold as low as the CPR Part 24 test, because he says that “provided there is something more than a minor or minimal risk of a breach”, an ECD must be made.

I consider that it would be an unjustified interpretation of Section 10(3)(b) of LASPO to suggest that, although Parliament has strictly limited the cases in which civil legal aid is generally available to those listed in Part 1 of Schedule 1 of LASPO, every case outside those clear definitions could also be the subject of civil legal aid, if the refusal of such legal aid would give rise to a claim for a breach of Article 6 or Article 8 which was “more than fanciful”. That would, in my view, cut across the whole basis for these sections of LASPO.

In my judgment, Mr Eadie QC was right to say that the test for “risk” required by Section 10(3)(b) must be considered by reference to the aim and purpose of LASPO itself. LASPO aims to make civil legal aid available in the particular cases identified in Part 1 of Schedule 1, and not otherwise, unless the provision of legal aid is necessary or appropriate within the definitions at Section 10(3). Those exceptional cases will therefore be limited; in my view, they can only arise either where it could definitely be said that a refusal of legal aid would give rise to a breach of the Convention; or where there was a significant risk or a very high risk of such a breach. However it is expressed, it must be a “very high threshold”: see paragraph 44 of the judgment of the Divisional Court in Howard League (above). Any lesser test would, in my judgment, be contrary to the purpose and scheme of LASPO because, instead of the specific and defined cases in Part 1 of Schedule 1, it would create an almost limitless category of ‘exceptional cases’.

I consider that my conclusion that the test applicable to the risk of a breach must be high is, in truth, inherent in the claimant’s own case. She argues, at paragraph 9 of the Amended Grounds, that “for there to be a breach of Article 6, the refusal of civil legal aid must “impair the very essence of the right”. In general, I consider that the refusal of civil legal aid will not often impair the very essence of a claimant’s rights under the Convention.

I have set out the relevant part of the guidance in paragraph 26 above. Although in his submissions in reply, Mr Bowen QC suggested that he was not saying that the guidance was unlawful, it was my clear impression that he was, and Mr Eadie QC shared the same view. There is no substantial difference between asserting that the guidance is incorrect (and should not be followed), and saying that it is unlawful. In any event, I should deal with the criticisms made of paragraphs 6 and 7 of the guidance, although I note at the outset that those paragraphs are consistent with the later, longer sections of the guidance, in respect of which no criticisms were advanced.

Mr Bowen QC criticised the reference to “rare cases” in paragraph 6 and its repetition in paragraph 7, saying that there was no statistical analysis on which that statement had been based. In my view, there is nothing in this point. In this case, a relatively thorough trawl of the European and United Kingdom authorities has demonstrated that there are very few in which it has been said that, for particular kinds of civil cases, there is a Convention right to civil legal aid. Moreover, those have tended to be cases on extreme facts or where the subject matter of the proceedings was directly concerned with Article 8, such as Steel and Morris (above), Airey v Ireland (1979-1980) 2 EHRR 305 and A, K and L v Croatia (ECHR, 8.1.13). To that extent I regard the references in the guidance to “rare cases” as being broadly accurate.

The other criticism is, of course, the LC’s reference to the risk of breach being “so substantial” that it is appropriate to provide civil legal aid. Mr Bowen QC’s criticism of that was that it set the bar too high. But that was based on his test of a “real risk” or a “real possibility”. For the reasons set out above, I have rejected that formulation and consider that, in the context of the LASPO regime, the test must be higher than that: something like “a significant risk” or “a very high risk” of breach. Therefore, I am wholly unable to say that the reference to “so substantial” is wrong or unlawful: on the contrary, it broadly chimes with my interpretation of Section 10(3)(b).

For those reasons, therefore, I accept Mr Eadie QC’s submission that there is nothing in the particular criticisms made of the introductory sections of the LC’s guidance.

SUMMARY

It follows that, for the reasons set out in the first part of this Judgment, this decision will have to be remitted to the defendant. The merits criteria were unlawfully applied by the defendant in his decision letters.

The defendant will, in all probability, have to undertake an ECD, because no such determination has been made thus far in this case. That determination can be considered by reference to the LC’s guidance and my own observations. I express no view as to whether this particular claimant, in her particular circumstances, has demonstrated the level of risk required by Section 10(3)(b) of LASPO. However, if an ECD is undertaken, I agree with Mr Bowen QC that an important element of any risk assessment will be a consideration of whether the failure to grant civil legal aid goes to the very essence of the claimant’s right to be heard on the application for disclosure of her confidential counselling notes.