King's Lynn and West Norfolk Council v Bunning

Committal proceedings for breach of a court order, although brought by civil process, involve the determination of a criminal charge for the purposes of criminal legal aid. They therefore fall within section 14(h) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 and regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013.

Where an applicant is a specified individual, section 16 requires representation to be available. Regulations made under section 19 facilitate that statutory duty and cannot restrict it. The High Court may determine an application made orally or under regulation 4, notwithstanding the defective scope of regulation 7(2) or the unsuitability of Form CRM14.

The claimant council had commenced contempt proceedings alleging that the defendant was living on land in breach of an earlier High Court injunction restricting residential use. The contempt hearing was adjourned while the defendant sought legal representation.

The Legal Aid Agency and the defendant disagreed about whether the proceedings required an exceptional civil-funding application or a criminal legal-aid determination by the High Court. The defendant applied to the High Court for representation. The central issue was whether committal proceedings for breach of a court order were criminal proceedings under the new statutory legal-aid scheme, and whether the High Court could grant representation despite the wording of the relevant regulations.

1. The defendant's application for legal representation was granted. The contemplated committal proceedings were criminal proceedings for legal-aid purposes. Although section 14(g) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 expressly refers to contempt in the face of the court, section 14(h) includes further prescribed proceedings. Regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 prescribes proceedings involving the determination of a criminal charge for article 6(1) purposes.

2. Hammerton v Hammerton [2007] EWCA Civ 248 established, for the present purpose, that committal proceedings for breach of an injunction involve determination of a criminal charge. There was no material difference between such proceedings in the Family Division and committal for breach of a High Court order in the Queen's Bench Division. The defendant's proceedings therefore fell within section 14(h) and regulation 9(v).

3. The defendant was a specified individual under section 16(1) and section 16(6)(b). Representation was consequently to be available. Regulation 21 made the interests-of-justice requirement satisfied for proceedings before the High Court.

4. Section 19 regulations govern the mechanism for determination; they do not cut down the duty imposed by section 16. Regulation 5 of the Criminal Legal Aid (Determination by a Court and Choice of Representative) Regulations 2013 was read as requiring a representation order where the court proceeded under regulations 6 or 7, but not as preventing an order in another case properly brought under regulation 4.

5. An oral application to the High Court was permitted by regulation 4(2). The absence of a suitable prescribed written form, and the unsuitability of Form CRM14 for High Court committal proceedings, could not govern statutory entitlement or prevent the court from making the order. Duncan Lewis was named as litigator and Adam Tear as advocate.

This was a first-instance application. Earlier in the same proceedings, Foskett J had made an injunction on 29 March 2012. Dingemans J later directed service of the legal-aid application on the Legal Aid Agency, which attended as an interested party.