Taylor v City of Westminster Magistrates Court & Ors

Regulation 12 of the Criminal Defence Service (General) (No 2) Regulations 2001 does not permit a magistrates’ court to extend a representation order to include an advocate in confiscation enforcement proceedings. Although such proceedings are criminal proceedings for funding purposes and engage Article 6, the confiscation legislation treats enforcement as enforcement of a fine, not proceedings in the case of an indictable offence. Article 6 requires a fair balance and competent representation, but does not create an absolute entitlement to a publicly funded advocate of a particular kind. Regulation 12 must therefore be interpreted within the statutory scheme, and section 3(1) of the Human Rights Act 1998 does not require a different construction.

The claimant had been convicted of drug-importation offences and was subject to a confiscation order. Following enforcement proceedings before the City of Westminster Magistrates’ Court, he obtained a representation order covering a solicitor but sought its extension to include an advocate.

The district judge refused the application, holding that regulation 12 of the Criminal Defence Service (General) (No 2) Regulations 2001 did not confer jurisdiction in confiscation enforcement proceedings and that the proceedings were not unusually grave or difficult within the regulation. The claimant sought judicial review, relying on the statutory scheme, Article 6 and the availability of counsel under the Unified Contract.

1. Claim dismissed. The magistrates’ court had no jurisdiction under regulation 12 to extend the representation order to include an assigned advocate in confiscation enforcement proceedings.
2. Regulation 12 imposes a two-stage requirement: the proceedings must fall within the specified category, including proceedings in the case of an indictable offence or extradition hearings, and the circumstances must make representation by both a litigator and advocate unusually grave or difficult. The second stage cannot arise unless the first is satisfied.
3. Confiscation enforcement proceedings are criminal proceedings for the purposes of section 12(2)(b) of the Access to Justice Act 1999 and the 2001 Regulations. However, the statutory scheme treats enforcement of a confiscation order as enforcement of a fine through the magistrates’ court. They are therefore not proceedings in the case of an indictable offence within regulation 12(1)(a).
4. R (on the application of Lloyd) v Bow Street Magistrates Court, [2003] EWHC 2294 Admin; [2004] 1 Cr.App.R 11, treated confiscation enforcement as part and parcel of the original criminal proceedings for Article 6 purposes. That conclusion did not determine the separate question of statutory construction under regulation 12.
5. Article 6 applies, but equality of arms requires a fair balance and representation capable of properly and adequately advancing the defendant’s case. It does not require the state to fund a particular form of representation or provide counsel merely because the prosecution has counsel. The court applied the principles in Croissant v Germany, [1993] 16 EHRR 135, and Attorney-General’s Reference (No 82a of 2000), [2002] 2 Cr.App.R 24.
6. Section 3(1) of the Human Rights Act 1998 could not be used to give regulation 12 a meaning it did not bear. The possibility of instructing unassigned counsel under the Unified Contract supported the conclusion that the funding scheme was not incompatible with Article 6.

The claimant challenged by judicial review the refusal of the City of Westminster Magistrates’ Court to extend his representation order. The Divisional Court dismissed the claim and upheld the district judge’s conclusion.