Liberty, R (On the Application Of) v Director of Legal Aid Casework

For civil legal aid under para 19(3) of Part 1 of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012, a proposed judicial review must have the potential to produce a direct, personal and material benefit for the applicant or a family member. The threshold does not require a significant benefit, but a merely theoretical, slight or hypothetical benefit is insufficient. The elimination of a future risk will normally not qualify unless the risk is sufficiently grave and imminent. An applicant’s standing to challenge a public law measure, residence in the affected area, professional involvement in the issue, or desire to benefit others does not itself establish the necessary personal benefit. Civil legal aid is therefore unavailable for what is, in substance, a representative action.

Liberty sought judicial review of the Director of Legal Aid Casework’s refusal to fund Sarah Ward’s proposed statutory challenge under section 66 of the Anti-Social Behaviour, Crime and Policing Act 2014 to a public spaces protection order made by the Borough of Poole. The proposed challenge alleged that the order unlawfully targeted rough sleepers.

The Director relied on two grounds: that the challenge was outside the definition of judicial review in para 19(10) of Part 1 of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012, and that it lacked the potential to produce a benefit for Ms Ward under para 19(3). The court decided the benefit issue and found it unnecessary to determine whether section 66 required the application of judicial review principles.

1. Claim dismissed. The Director was entitled to refuse civil legal aid because the proposed section 66 challenge did not have the potential to produce the requisite benefit for Ms Ward or a member of her family.

2. Whether a proposed judicial review has that potential is a question of mixed fact and law. On a judicial review of the Director’s decision, the court determines the issue itself by evaluating the relevant facts.

3. The ordinary meaning of “benefit” is broad, but context limits its scope. The benefit must have some substance and must be real, direct, personal and material to the applicant or a family member. The statute does not require a significant benefit, and the court need not assess its degree or quality as part of the scope question.

4. The elimination of a theoretical or hypothetical risk that the applicant might later become part of a class affected by the public law wrong will normally be insufficient. An exceptional case might arise where the risk is sufficiently grave and imminent, but Ms Ward’s past homelessness risk and possible future homelessness did not meet that standard.

5. Being an interested person under section 66 of the Anti-Social Behaviour, Crime and Policing Act 2014 gives standing to bring the statutory challenge, but does not itself establish a qualifying benefit. Nor did Ms Ward’s residence in Poole, professional involvement in homelessness, or concern for other residents create a sufficient direct, personal and material benefit. The fact that others would benefit, or that helping others was a strong motivation, was immaterial once the required personal benefit was absent.

6. The proposed proceedings were, in substance, a representative action. Such actions are excluded from civil legal aid by para 19(3) of Part 1 of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012. It was unnecessary to decide whether the section 66 procedure fell within para 19(10)(b).

First-instance judicial review proceedings in the Administrative Court. No appeal history was stated in the judgment.