Connell v Director of Legal Aid Casework (Legal Aid Agency)

Permission to seek judicial review of a refusal to fund a proposed Supreme Court appeal depends on whether the proposed grounds are reasonably arguable. The court must review the legality of the merits decision, but Article 6 ECHR and common-law access-to-justice principles do not require departure from the statutory merits test where that test is otherwise lawfully applied.

A panel’s prediction of prospects of success attracts appropriate latitude, particularly where the panel is independent and expert. Written consideration is the default for appeals to the Special Controls Review Panel. An oral hearing is required only where the applicable interests-of-justice threshold is met. Adequate reasons need not be lengthy, but must show that the decision-maker understood and grappled with the issues.

The claimant, an Irish national serving a sentence for sexual offences, sought funding for a proposed appeal to the Supreme Court concerning automatic deportation, EU-law rights, and differential treatment of Irish nationals. The Court of Appeal had dismissed his underlying appeal and refused permission to appeal.

The Director refused legal-aid funding after an Independent Special Controls Review Panel assessed the prospects of success as poor. The claimant challenged the Director’s adoption of that determination on grounds including errors of law, inadequate reasons, irrationality, procedural unfairness, breach of Article 6 ECHR, and failure to hold an oral hearing. The issue was whether any ground was reasonably arguable.

1. Application refused. None of the proposed judicial-review grounds was reasonably arguable.
2. The court’s task at the permission stage was not to determine the substantive judicial review, but to decide whether any ground crossed the reasonably arguable threshold. The Director remained the primary decision-maker under Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the regulations made under it.
3. The merits test was not rendered unlawful by Article 6 ECHR or common-law access-to-justice principles. Those principles did not require the court to adopt a different approach from conventional review of legality where the merits decision was otherwise lawful. The decision in R (S) v Director of Legal Aid Casework [2016] 1 WLR 4733 supported that conclusion.
4. The challenge based on the absence of an oral hearing failed. Written consideration was the default under the Procedure Regulations. The claimant had not requested an oral hearing, and this was not arguably an exceptional case requiring the Panel to consider one without such a request. In any event, the Panel’s determination on prospects of success was binding on the Director.
5. The Panel was entitled to reject reliance on R v Kluxen [2011] 1 WLR 218 (CA). That decision concerned the criminal court’s power to recommend deportation. It did not determine the Secretary of State’s power or duty to make a deportation order, and the Criminal Division had no need or authority to address that question.
6. The Panel was also entitled to conclude that the proposed discrimination argument was unlikely to succeed. The Common Travel Area Protocol permitted the United Kingdom and Ireland to make arrangements concerning movement between their territories, so the different treatment of Irish nationals could lawfully be distinguished from the treatment of other EEA nationals. That conclusion was consistent with R (James Foley) v Secretary of State for the Home Department and Secretary of State for Justice [2019] EWHC 488 (Admin) and was reinforced by Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11.
7. The Panel’s reasons were adequate. Reasons need not be lengthy, provided they show that the decision-maker understood and grappled with the issues. A Wednesbury challenge faced a high hurdle, particularly because the Panel was independent and expert and had to make an inherently imprecise prediction about appellate prospects.

• Court of Appeal: The claimant’s underlying challenge to the refusal to deport him was dismissed on 15 May 2018; permission to appeal to the Supreme Court was refused: [2018] EWCA Civ 1329.
• High Court (Administrative Court): The application for permission to seek judicial review of the legal-aid funding decision was refused: [2019] EWHC 3050 (Admin).