Evans, R (on the application of) v Chester Magistrates Court

When deciding whether legal representation is required in criminal proceedings, the court must assess the interests of justice, including whether conviction may result in loss of liberty or serious reputational damage. The simplicity of the factual issue does not justify refusing representation where the likely sentence has been wrongly assessed. In particular, a court should take account of authoritative sentencing guidance and the defendant’s relevant history. Where repeated failures to surrender bail make custody a realistic or likely outcome, an officer or magistrates’ court cannot reasonably conclude that only a fine is likely. A refusal based on that erroneous assessment is liable to be quashed and reconsidered.

The claimant sought judicial review of decisions by Chester Magistrates Court refusing her application for a legal representation order. She faced two charges of failing to surrender to bail and had previous convictions, including convictions for similar offences. The refusal stated that the charges were simple, involved no cross-examination, and were likely to result only in a fine.

The central issue was whether the decision-makers could reasonably conclude that custody was not a likely consequence of conviction, having regard to the statutory interests-of-justice criteria and the applicable sentencing guidance.

1. Application granted. The decisions dated 14 October and 7 November 2003 were quashed. The magistrates were directed to reconsider the claimant’s application for a legal representation order, and proceedings for the offences were stayed pending that reconsideration.
2. Under section 5 of the third Schedule to the Access to Justice Act 1999, the question whether representation should be granted must be determined according to the interests of justice. The specified factors include whether, if any matter is decided against the defendant, she would be likely to lose her liberty or suffer serious damage to her reputation.
3. The court accepted that the clerk could regard the contested Bail Act offences as simple in terms of trial conduct. That did not resolve the separate question of the likely consequences of conviction. The decision-maker had to assess the probable sentence realistically.
4. The sentencing authorities, particularly R v White & McKinnon [2002] EWCA Crim 2952, and the Consolidated Criminal Practice Direction indicated that custody was ordinarily likely for repeated failures to surrender bail, and that such sentences would generally be consecutive to other custodial sentences. The claimant’s previous convictions and current Drug Treatment and Testing Order made the clerk’s confident conclusion that custody would not be imposed unreasonable.
5. The fact that judicial review proceedings might appear disproportionate to the costs involved did not deprive the claimant of a remedy. The lower court was not awarded costs because it had not appeared, but the claimant was permitted to seek taxation of her publicly funded costs.

This was a first-instance judicial review application. Permission had previously been granted by a single judge. The Divisional Court quashed both refusals and ordered reconsideration by the magistrates.