Clive Rees Associates, Solicitors, R (on the application of) v Swansea Magistrates Court & Anor

An application to transfer a criminal representation order requires a substantial compelling reason under regulation 16 of the Criminal Defence Service (General)(No.2) Regulations 2001. A bare assertion of loss of confidence or breakdown in the solicitor-client relationship is insufficient. The court must be given enough information to investigate whether the breakdown is genuine and justified, rather than merely the result of proper but unwelcome advice. A written application will normally be appropriate, although an oral application may be accepted in exceptional circumstances. The stage of proceedings and work already undertaken are relevant, but an early application does not itself justify transfer. The power belongs to the magistrates, not their clerk. A legally flawed transfer decision may justify declaratory relief where quashing would cause further changes of representation and public expense.

The claimant firm sought judicial review of decisions made by Swansea Magistrates’ Court on 3 October 2011 transferring three criminal representation orders to Rees Davies and Partners. The transfers concerned Gareth Mansell, a youth facing proceedings involving an issue as to fitness to plead, and Colin Latham and David Gallagher, who faced drug-trafficking allegations.

Following a pre-action letter, the clerk to the justices purported to reconsider and confirm the transfers on 20 October 2011. The claim challenged the magistrates’ decisions and the clerk’s jurisdiction on grounds including error of law, procedural unfairness and irrationality. Permission was granted by Lindblom J. The central issues were whether the transfers satisfied regulation 16 and whether the clerk had power to make or confirm such decisions.

1. Jurisdiction. Regulation 16(1) conferred the power to transfer a representation order on the court before which the proceedings were heard. Read with Schedule 1 to the Interpretation Act 1978 and section 148 of the Magistrates’ Court Act 1980, that meant the justices acting as a magistrates’ court. The clerk therefore lacked jurisdiction to make or confirm a transfer decision. The operative decisions remained those made by the magistrates on 3 October.
2. Latham and Gallagher. An application initiated by the assisted party could be brought under regulation 16(2)(a)(iv), even where the existing solicitor did not accept that the relationship had broken down. The applicants had to establish a substantial compelling reason. Merely asserting loss of confidence, without explaining the cause of the alleged breakdown, did not satisfy that requirement. The failure to provide reasons prevented the existing solicitor from responding and showed that the magistrates had approached the matter as if they possessed a general discretion to transfer representation. Their decisions were accordingly vitiated by error of law.
3. A written application would normally be required because regulation 16(1) required the grounds to be stated, although an oral application might be accepted exceptionally. The duration of the relationship and work already undertaken were relevant considerations, but the fact that proceedings were at an early stage was not itself a substantial compelling reason.
4. Mansell. The magistrates had been directed to regulation 16 and R v Ashgar Khan. They had considered the conflicting advice about fitness to plead and its effect on Mansell’s confidence in his original solicitors. The absence of ritual use of the precise statutory wording did not establish legal error. In the circumstances, the magistrates were entitled to find a breakdown sufficient to justify transfer under regulation 16(2)(a)(iv), and the decision was not irrational or procedurally unfair.
5. The clerk’s purported confirmation of the transfers had no legal effect. The court declined to quash the decisions concerning Latham and Gallagher because that would cause a further change of representation, additional public expense and possible disruption. A declaration was granted that those decisions had been made under an error of law. The claimant was awarded its costs from public funds.

Permission to apply for judicial review was granted by Lindblom J on 26 October 2011. The substantive claim was then heard by a Divisional Court of the Administrative Court. No appeal is stated.