Kevin McCann, Re Application for Judicial Review [1994] NIQB 1

Re Lawfulness of a decision of the Governor of HMP Belfast Crumlin Road, and a challenge to the refusal of the Legal Aid Appeals Committee to grant legal aid to a prisoner. Decision quashed.

KERE1337

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN’S BENCH DIVISION (CROWN SIDE)

_________

 

 

 

IN THE MATTER OF AN APPLICATION BY KEVIN McCANN

FOR JUDICIAL REVIEW

 

________

KERR J

Kevin McCann (“the applicant”) is currently a remand prisoner at HM¬†Prison, Crumlin Road, Belfast. At a governor’s adjudication held on 16 April 1993, he was found guilty of an offence against prison discipline. He wishes to challenge the lawfulness of the decision of the Governor. In order to do so, he made application for leave to apply for judicial review of the adjudication. Leave was granted by Carswell¬†J (as he then was) on 28 April 1993.

In order to prosecute the judicial review challenge, an application for legal aid was made on behalf of the applicant on 6 May 1993. On 13 May 1993, the applicant’s solicitors were informed that this application had been refused by a Certifying Committee. An appeal against the refusal was lodged. It was considered by the Legal Aid Committee on 23 July 1993 and the refusal to grant legal aid was confirmed. By letter of 26 July 1993, the Legal Aid Department of the Law Society informed the applicant that the refusal was “on the grounds that it appeared unreasonable in the particulars circumstances of the case that [he] should receive legal aid”.

By this application, the applicant seeks judicial review of the decision of the Legal Aid Committee to refuse legal aid.

The statement filed under Order 53 set out the basis of the challenge to the Legal Aid Committee’s decision as follows:-

“(a) in refusing legal aid, the Legal Aid Department failed to take into account all relevant matters, in particular they disregarded the following:- 

 

(i) the fact that leave had been granted by a High Court Judge on the basis that the applicant had an arguable case;

 

(ii) the written opinion of junior counsel that the applicant had a reasonable case;

 

(iii) the decision of the Court of Appeal in England in Ex parte Hughes;

 

(b) in the light of the three factors referred to above, no Legal Aid Department could reasonably have concluded that the applicant had no reason or prospect of success at a judicial review.”

The manner in which this statement is pleaded and in particularly the reference to R v Legal Aid Department ex parte Hughes reflect the perception of the applicant and his advisers that the Legal Aid Committee’s decision was taken on the basis that the applicant did not enjoy a reasonable prospect of success in his application. On the filing of the first affidavit on behalf of the respondent it became clear that this perception was misconceived. Ms Jane McDonald, the Chairman of the Committee which took the decision to refuse legal aid, deposed that the refusal was based not on the “legal merits” test set out in Regulation 7f of the Legal Aid (General) Regulations (Northern Ireland) 1965 but rather on the basis of Regulation 7g which provides:-

“If the appropriate Committee refuse an application for a Certificate, they shall notify the applicant, stating that the application has been refused on one or more of the following grounds – 

 

(g) that it appears unreasonable that he should receive legal aid in the particular circumstances of the case (whether as a result of any discretion given to the appropriate Committee under any provision of these Regulations or otherwise);”

When the reason for the Committee’s decision became manifest, Mr O’Rourke (who appeared on behalf of the applicant) presented a submission on an entirely different basis from that foreshadowed by the Order 53 statement and the applicant’s original affidavit. While expressing understandable surprise at this turn of events, Mr Thompson (who appeared for the respondent) did not object to the case being considered by me on this reformulated basis. In its refined and modified condition the applicant’s case resolved the following propositions:-

  1. No reasonable committee cognisant of all the material factors could have reached the decision arrived at by the Legal Aid Committee in this instance. 
  2. The Legal Aid Committee failed to give due weight to the possibility that the ultimate effect of the Governor’s decision might be to delay the applicant’s release from custody in that, on a further disciplinary hearing, the circumstance that the applicant had this adverse adjudication on his record could lead to an award of loss of remission. 
  3. The Committee failed to have regard to the high probability that the applicant would be successful in his judicial review challenge to the Governor’s decision. 

    I intend to deal with the last of these submissions first. It was submitted strongly on behalf of the applicant that he had an unanswerable case for judicial review of the Governor’s award because of the delay in holding the adjudication. No contrary argument was advanced on behalf of the respondent.

    It was therefore submitted that the virtual certainty of success in the application should have been a potent factor in favour of the grant of legal aid and the failure of the Legal Aid Committee to take it into account rendered its decision to refuse legal aid invalid.

    The reasons for refusal of legal aid are set out in paragraphs 4 and 5 of the first affidavit of Jane McDonald as follows:-

    “4. The Committee refused the appeal on the grounds that it appeared unreasonable that the applicant should receive legal aid in the particular circumstances of the case, in accordance with Regulation 7g of the Legal Aid and Advice General Regulations 1965. I refer to the notification of refusal dated 26 July 1993 specifically setting out the statutory ground of refusal. 

     

    5. Regulation 7g is a ground for refusal of legal aid distinct from 7f. In 7f one is dealing with the `legal merits’ approach. In 7g there is a wider issue: is it reasonable that in the circumstances of this particular case bearing in mind the advantage to be obtained by the applicant for legal aid the substantive proceedings and the cost to the public purse of doing so, that the applicant should be in receipt of legal aid to advance his case. A standard often adopted by the Committee is to determine whether or not it is likely that the applicant for legal aid, if possessed of sufficient resources, would use those resources to fund his own case. In the context of Kevin McCann’s application for legal aid consideration was given to the nature of the case, the personal circumstances of the applicant and the penalty imposed by the prison governor, and reached the conclusion that in this particular case and the circumstances of it, it was unreasonable that McCann should be given legal aid to any extent.”

    Neither in this affidavit nor in the submissions made on behalf of the respondent to this court was it suggested that the Legal Aid Committee had given consideration to the high probability of success for the applicant. Mr O’Rourke submitted that this omission was fatal to the validity of the decision and he developed his argument on this theme in the following manner. The reasoning of the Legal Aid Committee (as outlined in Ms McDonald’s affidavit) depends on an assessment of the cost effectiveness of the application. The evaluation of the advantage to the applicant pitted against the cost to the public purse is par excellence a cost effective exercise. It was argued by Mr O’Rourke, however, that such an exercise is by definition flawed if it fails to take into account the chances of success particularly if these are extremely high since (in those circumstances) the prospect of the public purse being required to fund the application may be negligible or remote. In this context, he drew attention to the Notes for Guidance in the 1993 Legal Aid Handbook which at p.65 deals with the Cost Benefit approach. The principle is stated as follows:-

    “Principle. 

     

    If the application is to take proceedings in which the estimated costs to the applicant are likely to exceed the value of any benefit gained by the applicant, a grant of legal aid will not be justifiable:

     

    (a) to the applicant if it raises expectations which cannot be satisfied because any award will be absorbed by payment of a contribution and/or the statutory charge;

     

    (b) to the courts if time and resources are used up by cases which would not be pursued in the absence of legal aid because the applicant, were he/she a person of moderate means, would not have paid privately for the proceedings;

     

    (c) to the taxpayer if money is spent for nothing, i.e. if the award in the proceedings is not sufficient to cover the statutory charge.”

    It is important to note that the standard to be applied is expressed in this way:-

     

     

    “Standard. 

     

    Legal aid should only be granted to pursue a case in which costs are likely to exceed the value of any benefit gained thereby where:

     

    (a) there is a high prospect of success and the opponent is likely to indemnify the applicant for the legal costs; or

     

    (b) what is at stake is of such overwhelming importance to the applicant that it overrides the question of costs.”

    Mr O’Rourke submitted that the applicant satisfied the requirements of both exceptions. In the present context, however, it is the first of these which is important. It was argued for the applicant that even if this was a case in which costs are likely to exceed the value of any benefit claimed thereby (which was not accepted) since the applicant enjoyed a high prospect of success he was entitled to the exception which this passage recommended.

    Although it was not clear whether these notes for guidance or similar provisions applied in Northern Ireland, Mr Thompson was not disposed to argue (in my view, correctly) that the Legal Aid Committee in refusing an application for legal aid on a cost effective basis would be entitled to disregard the prospects of success in the case and the likelihood that the applicant’s opponent would be required to indemnify the applicant for his legal costs. Quite independently of the guidance from the Legal Aid Handbook, it seems to me to be elementary that if a Legal Aid Committee decides to refuse an application on the basis that the potential cost to the public purse outweighs the benefit that would accrue to the applicant, it must take closely into consideration whether there will in fact be any cost to the legal aid fund. It can only do so by making some assessment of the chances of success for the applicant. This Legal Aid Committee does not appear to have carried out such an assessment. This omission must render its decision invalid and the decision must therefore be quashed.

    My conclusion on this aspect of the case effectively disposes of the application but since it is my intention to remit the case to the Legal Aid Committee for its further consideration, it may be helpful if I were to make some brief observations on the other arguments presented on behalf of the applicant, without expressing any concluded view on them.

    It was forcefully argued by Mr O’Rourke that the possibility that the applicant might be penalised in future disciplinary proceedings by the existence of the adjudication and award of April 1993 was a factor of the utmost importance which cannot have been given due weight by the Committee.

    In her second affidavit filed on 10 November 1993, Ms McDonald dealt with the topic in this way:-

    “3. … I can say from my own experience and also from that of the Legal Aid Committee in dealing with applications of the sort brought by the applicant in his substantive case, that we are experienced in prisoners’ cases. In general terms, we would know, as I know myself, that a `conviction’ of a disciplinary offence within the prison can count against a prisoner in future disciplinary proceedings and, indeed, might ultimately affect his prospects of obtaining parole. This applies equally in respect of a remand prisoner as a convicted prisoner. I, personally, would doubt whether or not a conviction of this sort would ultimately make any difference to the way in which the applicant might be dealt with in future disciplinary proceedings or on his application for parole, but can say that in a general way the effects of his `conviction’ in this regard would have been present to the members of the Committee and were present to my own mind at the time of refusing him legal aid for his substantive proceedings.”

    The expression of doubt as to the effect that the adjudication and award might have on future disciplinary proceedings appears to be impressionistic or intuitive rather than the product of any empirical knowledge or research. I am not in a position to make a fully informed judgment as to the likelihood of the award affecting the applicant in future disciplinary proceedings. I am well aware, however, that, after conviction, a prisoner adjudicated guilty on an offence against discipline faces a range of possible penalties one of which is loss of remission and that this is not infrequently a feature of awards by governors and Boards of Visitors. It appears to me that the existence of a previous `conviction’ and award must at least increase the risk in future disciplinary proceedings of an award involving loss of remission or of an enhanced penalty involving a longer period of loss of remission than might otherwise be imposed.

    In those circumstances, I believe that a Legal Aid Committee would wish to reflect very carefully before deciding to withhold legal aid from a prisoner whose liberty might be imperilled even for a limited period by being denied the opportunity to challenge the validity of the adjudication and award made against him. Moreover, I do not consider that this possibility can be dismissed as lightly as appears to have been done by Ms McDonald in the paragraph of her affidavit which I have quoted.

    I do not suggest that the possibility of an enhanced award in future disciplinary hearings will inevitably and automatically require the grant of legal aid to pursue a challenge to a governor’s award. Nevertheless, where such a distinct risk has been identified (even if it is a slender one) I believe that the circumstances in which legal aid should be withheld will be exceptional.

    Since it is unnecessary for me to do so, I do not propose to make a finding on whether the Legal Aid Committee in this instance failed to give due weight to the possible future effect of the existence of the adjudication and award and on whether, by reason of this and the other factors canvassed on the applicant’s behalf, their decision was one which no reasonable Committee could have reached. I believe, however, that the Legal Aid Committee which considers the application anew will require to examine closely the possibility of the applicant being disadvantaged at future disciplinary proceedings before withholding legal aid in this case.

    In this context, it is appropriate for me to echo the regret expressed by Ms McDonald in her second affidavit and repeated by Mr Thompson in the course of his submissions that neither solicitor nor counsel on behalf of the applicant attended the Legal Aid Committee which decided the applicant’s appeal.

    The Legal Aid Committee is composed of experienced and able lawyers drawn from both branches of the profession who give generously of their time to carry out this important work and, on the whole, they do so in exemplary fashion. The Committee is entitled to expect the co-operation of lawyers acting on behalf of applicants in attending committee meetings to present and elucidate the case for the grant of legal aid. In the course of the hearing of this application Mr O’Rourke (who, it should be said, was not originally retained in the case) was at pains to emphasise how important the outcome of the proposed judicial review of the Governor’s award was to the applicant. It is unfortunate that this perception of the importance of the case did not bring about the attendance of solicitor or counsel at the Committee meeting of 23 July 1993 not least because a different conclusion might well have been reached had the Committee had the benefit of the arguments canvassed on the applicant’s behalf before me.

    Accordingly, for the reasons that I have given, I will quash the decision of the Legal Aid Committee and remit the matter to the Committee for its further consideration in light of the observations which I have made as to the correct approach to be taken to the application for legal aid. I would expect the applicant to be represented before the reconvened committee at least by his solicitor if not also by counsel. I do not know whether it is possible that the applicant’s appeal can be heard by a differently constituted committee. If that is possible, the Committee may wish to consider whether that would be appropriate but I do not direct it.

     

     

    IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

     

    QUEEN’S BENCH DIVISION (CROWN SIDE)

    _________

     

     

     

    IN THE MATTER OF AN APPLICATION BY KEVIN McCANN

    FOR JUDICIAL REVIEW

     

    ________

     

     

    J U D G M E N T

     

    of

     

    KERR J

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