Chaney, R (on the application of) v Legal Services Commission

An Article 6 challenge to publicly funded legal representation must be assessed by reference to the individual defendant’s circumstances and the proceedings in which the alleged unfairness arises. The adequacy of funding cannot ordinarily be determined in the abstract before those proceedings have taken place. Where confiscation proceedings are still pending, the defendant should raise any inability to secure effective representation before the Crown Court. A declaration of incompatibility is premature if the alleged unfairness has not yet occurred and no separate breach of statutory duty or other relief is claimed.

Sean Chaney renewed an application for permission to seek a declaration that paragraphs 14 and 22 of Schedule 4 to the Criminal Defence Service Funding Order 2001, as amended, were incompatible with Article 6(1) of the European Convention on Human Rights. The challenge concerned remuneration for counsel in complex confiscation proceedings under the Proceeds of Crime Act 2002.

Permission had been refused on paper by Sir Michael Harrison, who considered that protection of Article 6 rights was a matter for the Crown Court hearing the confiscation proceedings. The claimant argued that the low remuneration rates made suitable representation unavailable. The central issue was whether incompatibility could be determined before the confiscation proceedings had taken place.

1. The application failed. The court refused to embark on consideration of a declaration of incompatibility while the confiscation process remained incomplete.
2. The relevant question under Article 6 was whether the claimant had suffered, or would suffer, unfairness in the particular proceedings. The alleged breach was personal to the individual concerned and depended on all the circumstances of his case. Those circumstances included the nature and conduct of the confiscation hearing before the Crown Court, which had not yet occurred. This approach was derived from and applied consistently with AP and U Ltd v Crown Prosecution Service and the Revenue & Customs Prosecution Office, [2007] EWCA Crim 3128.
3. The court accepted that the remuneration rates were very low and that complex confiscation proceedings could create serious practical difficulties in obtaining appropriately experienced counsel. The recent Protocol for Counsel: Confiscation and Graduated Fee Cases also made it possible for counsel to accept instructions for the trial while declining confiscation work.
4. Those difficulties did not justify a declaration in advance of the claimant’s actual experience. If adequate representation could not be obtained, the issue could be raised before the Crown Court. The court might then need to consider whether the proceedings should be stayed. Alternatively, any resulting unfairness could be considered on appeal, including the possibility of a declaration of incompatibility.
5. A declaration made in a vacuum was inappropriate. The claim did not allege a separate breach of statutory duty and sought no other relief. Accordingly, the renewed application for permission was dismissed.

Permission was refused on paper by Sir Michael Harrison. The claimant renewed the application before the High Court (Administrative Court), which dismissed it.