Brown v London Borough of Haringey

Committal proceedings in the County Court which determine a criminal charge for Article 6 purposes are criminal proceedings for criminal legal-aid purposes. An alleged contemnor is therefore entitled to seek publicly funded representation, with the Director of the Legal Aid Agency being the relevant decision-maker where no regulation authorises the County Court to decide entitlement.

Where imprisonment is sought, the proceedings have a quasi-criminal character and liberty is at risk. The court must make proper enquiries about representation, the person's wishes and legal-aid entitlement. If funding has not been properly determined, an adjournment will ordinarily be required. A court should also investigate a material absence and consider adjournment before imposing sentence without the alleged contemnor's attendance, mitigation or representation.

The appellant, then aged 80, was committed to prison for 18 months by HHJ David Mitchell in the Central London County Court for breaches of injunctions restraining nuisance and anti-social behaviour. He was unrepresented at the committal hearing. His solicitors had sought legal aid, but the criminal and civil legal-aid systems each treated the application as belonging elsewhere.

On the second day of the hearing the appellant was absent after a report that he was in hospital. The judge proceeded with evidence, submissions, findings and sentence in his absence.

The appellant appealed out of time against the committal order. The Court of Appeal granted an extension and a representation order. The central issue was whether the failure to secure or investigate the availability of publicly funded representation, together with the conduct of the hearing and sentence in the appellant's absence, rendered the committal proceedings unfair.

1. Appeal allowed. The court quashed the committal order and the factual findings on which it rested, and ordered the appellant's immediate discharge. It declined to remit the matter because he had already served more than five months and the respondent was unlikely to pursue the proceedings.
2. Legal-aid entitlement. The court agreed with King’s Lynn and West Norfolk Council v Bunning and anor. [2013] EWHC 3390 (QB) that committal proceedings falling within Article 6 as the determination of a criminal charge are criminal proceedings under Legal Aid, Sentencing and Punishment of Offenders Act 2012. Regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 applied equally to High Court and County Court committal proceedings. An alleged contemnor was a specified individual under regulation 10.
3. Relevant authority. No regulation authorised the County Court to determine qualification for representation. Accordingly, under section 18 of the Act, the Director of the Legal Aid Agency was the relevant authority. The Court of Appeal itself could make the representation order for the appeal under regulation 8 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013.
4. Fairness of the committal hearing. A committal application with imprisonment in prospect is quasi-criminal and engages the common-law and Convention right to a fair trial. The judge should have isolated that application from the earlier civil proceedings, made full enquiry into whether the appellant wanted representation and whether funding had been sought, and adjourned for those matters to be resolved. The brief enquiry made did not suffice.
5. Absence and sentence. The judge should have awaited the outcome of enquiries into the reported hospital attendance. Before imposing an 18-month sentence in the appellant's absence, he should have considered an adjournment to secure attendance, investigate medical circumstances and permit mitigation, preferably with representation. Those failures were serious procedural flaws and rendered the findings unsafe.

• Court of Appeal (Civil Division) — In Brown v London Borough of Haringey [2015] EWCA Civ 483, the court allowed the appeal, quashed the committal order and findings, and ordered the appellant's immediate discharge.
• Central London County Court — HHJ David Mitchell committed the appellant to prison for 18 months on 27 November 2014 for contempt by breach of injunctions.