Egeneonu v Egeneonu

In committal proceedings where imprisonment is at stake, the interests of justice ordinarily require the respondent to have legal representation. If the respondent is unrepresented, the hearing should generally be adjourned to permit representation to be obtained, save in circumstances of extreme urgency or where the respondent’s unreasonable conduct has made continued legal assistance impossible.

The fact that a respondent has changed solicitors does not, without more, justify proceeding in their absence. The court must assess whether the change involved unreasonable conduct and whether the case can be relisted promptly. The seriousness of the potential deprivation of liberty strengthens the need for effective representation.

The applicant sought the respondent’s committal for alleged breaches of orders made in wardship proceedings concerning their three children. The respondent was already serving a sentence for contempt and had changed solicitors shortly before the listed final hearing of a further committal application.

His new solicitors had obtained transfer of his legal aid certificate but required a short period to obtain the papers, take instructions and prepare his defence. The applicant initially opposed an adjournment because the respondent was due to be released shortly and might leave the jurisdiction, but no clear evidence established that the change of solicitors was an unreasonable device to delay the proceedings.

The central issue was whether the final committal hearing should proceed without the respondent having representation.

1. Application granted. The final hearing of the further committal application was adjourned to 11 September 2017, with a two-day estimate, before a Deputy High Court judge. The respondent was to be produced from prison.
2. Committal proceedings constitute a criminal charge for the purposes of Article 6 of the Convention. By virtue of section 6 of the Human Rights Act 1998, the court must act compatibly with the respondent’s Convention rights, including the right under Article 6(3)(c) to defend himself in person or through legal assistance, with free assistance where the interests of justice require.
3. Where deprivation of liberty is at stake, the interests of justice ordinarily call for legal representation. Proceeding without representation will generally amount to a serious procedural flaw and may result in an unfair trial. The more serious the case, the greater the need for persuasive and skilful representation, including assistance on the appropriate disposal even where the allegations are admitted.
4. The right is not unlimited. The court may proceed without further legal assistance where the respondent has behaved so unreasonably in failing to co-operate with, or refusing, the assistance offered that it has become impossible for legal funding or representation to continue. A previous change of solicitors does not itself establish that exception.
5. Although the timing of the respondent’s change of solicitors and his apparent illness caused suspicion, there was no cogent evidence that his conduct was unreasonable. His new solicitors were now instructed, legal aid was in place, and the matter could be relisted within a short period. It would therefore be wrong to proceed without representation.
6. The court warned that a further change of solicitors before the relisted hearing could provide strong evidence of conduct designed to frustrate the application. An expedited transcript was directed at public expense.

First-instance decision. No appellate history was stated in the judgment.