The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2)

Criminal legal aid is available as of right to a person facing High Court committal proceedings for alleged breach of an order. No assessment of means or the interests of justice is required where the statutory regulations deem those conditions satisfied. The entitlement to legal aid is distinct from the authority responsible for making the formal determination. Unless regulations authorise the High Court to determine eligibility, that authority is the Director of Legal Aid Casework. The court departed from King’s Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531, insofar as it held that the High Court itself could make the representation order in such proceedings.

The claimants had brought proceedings seeking the defendant’s committal for contempt because of an alleged failure to comply with an order. In an earlier judgment, the court identified uncertainty about the procedure for obtaining legal aid in such cases and invited submissions from the Legal Aid Agency.

The issue was whether the defendant was entitled to legal aid and, if so, whether the relevant authority to make the formal determination was the High Court or the Director of Legal Aid Casework. The court considered the statutory scheme and the effect of King’s Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531.

1. Entitlement. A respondent facing High Court committal proceedings for alleged breach of an order is entitled to criminal legal aid as of right. The proceedings involve determination of a criminal charge for the purposes of Article 6(1) ECHR, and are therefore criminal proceedings under regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013. The means and interests-of-justice conditions are automatically satisfied by regulation 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 and regulation 21 of the General Regulations.
2. Relevant authority. Being a specified individual under section 16(1)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is necessary but not sufficient. A formal determination under section 16(1)(b) must still be made by the relevant authority. Sections 16(6) and 18–20 distinguish between determinations by the Director and determinations by a court.
3. Effect of the regulations. Regulations 6, 7 and 8 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 identify the proceedings in which the Crown Court, High Court or Court of Appeal may make a determination. Regulation 7 does not authorise the High Court to determine eligibility in committal proceedings for breach of an order, as opposed to contempt in the face of the court. Regulation 5 does not confer a wider power.
4. Bunning. The assumption in Bunning that classification as criminal proceedings meant that an application had to be made to the court was wrong. The court was convinced that the contrary conclusion in Bunning was wrongly decided and departed from it. The Director, not the High Court, is the relevant authority in these proceedings.
5. Practical consequence. The decision did not reduce the availability of legal aid. Applications should be made to the Director through the established Legal Aid Agency procedure. The court therefore declined to make a representation order.

First-instance decision. The judgment considered earlier decisions of the High Court and Court of Appeal but did not determine an appeal.