Macmillan, R (on the application of) v Grays Magistrates' Court

When deciding whether a defendant should receive publicly funded representation, the court must assess the real and practical risk of imprisonment at the time the application is considered. A merely theoretical possibility of custody is insufficient. The assessment must reflect the defendant’s age, character, previous convictions, the seriousness of the actual charge and relevant statutory measures concerning young offenders. The sentence ultimately imposed must not be taken into account, although an earlier sentence may demonstrate that the decision-maker would inevitably have reached the same conclusion without that error. A magistrates’ court may therefore refuse representation where the prospect of custody is so remote that it can be discounted for practical purposes.

The claimant sought judicial review of Grays Magistrates’ Court’s refusal to grant his client a representation order for criminal proceedings. The defendant, aged 18 and with no significant previous convictions, had pleaded guilty to obstructing a police officer and failing to surrender to bail. The application relied on the risk of loss of liberty under paragraph 5(2)(a) of Schedule 3 to the Access to Justice Act 1999.

The application had initially been refused by a court officer and was then renewed unsuccessfully before a deputy district judge. Permission to challenge the refusal was granted by Collins J. The central issue was whether it had been open to the deputy district judge to conclude that the defendant was not at real risk of a custodial sentence.

1. Claim dismissed. It was open to the deputy district judge to conclude that the defendant was not at real risk of imprisonment and therefore that representation was not required in the interests of justice under paragraph 5 of Schedule 3 to the Access to Justice Act 1999.
2. The relevant question under paragraph 5(2)(a) was whether there was a real and practical, rather than theoretical, risk that the defendant would lose his liberty. The assessment had to be made by reference to the circumstances existing when the defendant was being advised whether to apply for representation. The approach endorsed in R (on the application of Sonn and Co) v West London Magistrates’ Court (CO/1451/98) supported that analysis.
3. The defendant was young, had no significant previous convictions and was to be treated for sentencing purposes as a person of good character who had never been in custody. Although the conduct was serious and a more serious charge might have been possible, the risk of detention in a young offender institution was so remote that it could be discounted for practical purposes. The statutory initiatives designed to keep young offenders out of custody were relevant.
4. The offence of failing to surrender did not need to be considered because it was absent from the written application. Even if it were considered, the deputy district judge could conclude that there was no real risk of custody. The usual custodial sentence mentioned in the Practice Direction (Bail: Failure to Surrender) generally arose where the defendant was also receiving custody for another offence.
5. The deputy district judge should not have taken account of the sentence actually imposed, since the risk had to be assessed prospectively. However, the reference to the defendant having got off lightly did not establish that he had done so. In any event, even if the sentence had been considered, the same conclusion would inevitably have followed.

• Grays Magistrates’ Court: A court officer refused the representation-order application. The refusal was renewed before a deputy district judge and was again rejected.
• High Court (Administrative Court): Permission to apply for judicial review was granted by Collins J on 22 August 2005. The claim was dismissed.