Flannigan, R (On the Application Of) v The Director of Legal Aid Casework the Lord Chancellor

Under regulations 13 and 17 of the Criminal Defence Service (Contribution Orders) Regulations 2009, capital is identified by reference to ownership when the representation order was sought, but valued when the assessment is made. Assets formerly restrained must therefore be included if the restraint has ended by the valuation date. A capital contribution order does not ordinarily breach A1P1 where it recovers only the cost of state-funded representation, operates predictably, and is accompanied by adequate procedural safeguards. Delay in making the assessment does not invalidate the order where the statutory scheme would have required reassessment after the restraint ended and the claimant suffers no material prejudice.

The claimant sought judicial review of capital contribution orders made by the Director of Legal Aid Casework under the Criminal Defence Service (Contribution Orders) Regulations 2009. He had received criminal legal aid, had been convicted of some offences, and had previously been subject to a restraint order under the Proceeds of Crime Act 2002. By the time his capital was assessed, the restraint had been discharged.

He argued that restrained assets should be disregarded by reference to the date of the representation application. He also alleged a violation of A1P1, unfair delay and irrationality. The central issues were the valuation date under regulations 13 and 17, the effect of regulations 27 to 29, and whether the contribution orders were proportionate and lawfully made.

1. Interpretation of regulations 13 and 17. Regulation 13 involves two stages. The authority must first identify resources belonging to the individual when the representation order was sought. It must then value those resources at the date of the capital assessment. The reference to the application date concerns ownership, not valuation.
2. A restrained asset remains the claimant’s property and is therefore identified at stage one. Regulation 17 requires it to be disregarded at valuation only if it is restrained when valuation occurs. Assets formerly restrained but freely disposable at the assessment date must be included. The authority therefore acted within its powers.
3. Regulation 28 independently supported the same result. If an initial assessment disregarded assets because they were restrained, later information that the restraint had ended required recalculation of disposable capital. The court noted that the argument to the contrary had been described as doubtful in R (oao Cleland) v the Lord Chancellor [2016] EWCA Civ 571.
4. A1P1. The money demanded was treated as the claimant’s existing possession, and the contribution order as an interference requiring proportionality review. The relevant inquiry was whether a fair balance had been struck, including whether the regime was arbitrary, operated beyond its statutory aim, or lacked procedural safeguards.
5. The regime was predictable and did not operate as a penalty. It recovered no more than the cost of representation. Safeguards included the opportunity under regulation 21 to seek reduction where payment of the whole cost would be manifestly unreasonable, recalculation under regulation 28, and review for hardship under regulation 29. The absence of a right to participate in the lawyers’ costs assessment did not breach A1P1.
6. The delay was regrettable but did not cause material prejudice or make the assessment fundamentally unfair. The irrationality challenge also failed. The claim was dismissed.

First-instance judicial review proceedings. Permission to proceed was granted on 10 December 2017 by His Honour Judge Platts. The High Court dismissed the claim.