M v Director of Legal Aid Casework & Ors

Applications for exceptional civil legal aid under LASPO require separate consideration of the exceptional case determination and the ordinary means and merits criteria. The statutory expression “exceptional case” refers to cases outside Part 1 of Schedule 1, not cases that are unusual in a wider sense.

The risk threshold under section 10(3)(b) is high. It requires a significant or very high risk that refusal would breach Convention rights, rather than merely a real possibility or more-than-fanciful risk. Decision-makers assessing prospects of success in resisting disclosure of confidential records must consider both relevance and admissibility, including confidentiality and public interest immunity.

The claimant, an Afghan national and complainant in criminal proceedings against her former husband, sought civil legal aid to obtain representation at a hearing concerning a witness summons for her confidential counselling records. The Director refused funding on the basis that the Helen Bamber Foundation could represent her, that her prospects of resisting disclosure were poor, and that the reasonable private paying individual test was unmet.

The claimant sought judicial review. The Director had not made an exceptional case determination under section 10 of LASPO. The issues included the proper application of the merits criteria, the claimant’s civil right to confidentiality, the sequence of decision-making, and the threshold applicable to exceptional funding based on Convention rights.

1. Judicial review allowed. Permission was granted and the decisions of 27 January and 3 February 2014 were quashed as irrational and unreasonable in law.
2. The Director unlawfully treated the Helen Bamber Foundation as a person who could reasonably be expected to bring or respond to the proceedings on the claimant’s behalf. Under R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin), the person whose confidential records are sought has interests distinct from those of the organisation holding the records.
3. The Director applied the wrong test to prospects of success. Under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 and rule 28.5 of the Criminal Procedure Rules, “material evidence” requires consideration of both relevance and admissibility. The decision addressed relevance only and failed to consider confidentiality and public interest immunity. The claimant’s prospects were therefore not properly assessed.
4. The claimant had a civil right to protect the confidentiality of her counselling records under domestic law, the Data Protection Act 1998, and Article 8. However, there was no general entitlement to civil legal aid. Whether Articles 6 or 8 required funding depended on the importance of what was at stake, the complexity of the law and procedure, and the claimant’s vulnerability or ability to represent herself.
5. As a matter of generality, an exceptional case determination would usually be considered before the ordinary means and merits criteria, although failure to follow that sequence was not itself an error of law on these facts.
6. The term “exceptional case” in section 10 referred to cases outside Part 1 of Schedule 1 of LASPO. Under section 10(3)(a), necessity required near certainty that refusal would breach Convention rights. Under section 10(3)(b), the risk threshold was significantly higher than a real risk or real possibility: it required a significant or very high risk of breach.
7. The Lord Chancellor’s guidance, including its references to rare cases and a risk that was “so substantial”, was consistent with that statutory threshold. The matter was remitted for reconsideration. An exceptional case determination would probably be required, but the court expressed no view on whether the claimant met the threshold.

First-instance judicial review in the Administrative Court. The court granted permission, allowed the substantive claim, quashed the Director’s decisions, and remitted the matter for reconsideration.