Director of Legal Aid Casework, R. (On the application of) v Crown Court at Southwark

Regulation 26 of the Criminal Legal Aid (Contribution Orders) Regulations 2013 permits the Crown Court to specify the proportion of the defendant’s costs of representation for which the defendant is liable. It does not permit the court to calculate a proportion of the later capital contribution.

The 21-day period for applying under Regulation 26 is important, but its expiry does not automatically deprive the Crown Court of jurisdiction. The court may extend time where refusing to entertain the application would cause material injustice or unfairness and the delay has an acceptable explanation. An extension requires cogent and compelling justification. On the facts, the very substantial unexplained delay did not justify an extension.

The Director of Legal Aid Casework sought judicial review of orders made by the Crown Court at Southwark concerning Professor Ian Swingland’s liability for criminal legal aid costs. Professor Swingland had been convicted of one offence but acquitted of another after a lengthy Crown Court trial. He applied under Regulation 26 of the Criminal Legal Aid (Contribution Orders) Regulations 2013 for an order limiting the proportion of his representation costs payable.

The Crown Court made an order referring to 15 per cent, later treated that percentage as applying to the capital contribution, and subsequently held that it was functus officio. The issues before the Administrative Court were the proper construction of Regulation 26, whether the Crown Court could extend the 21-day period, whether an extension should be granted, and whether the later orders could stand.

1. The claim for judicial review was allowed. The orders of 5 April 2019, 19 June 2019 and 3 October 2019 were quashed. The Regulation 26 application was dismissed.

2. Regulation 26 concerns the proportion of the cost of representation for which the defendant is liable. The judge is not required to know, or determine, the amount of the later capital contribution. Quantification of the costs and assessment of the resulting liability are matters for the Director under the statutory scheme. The original April order, as drawn up, correctly referred to 15 per cent of representation costs.

3. The Crown Court retained jurisdiction under the effective liberty to apply in the June order. It was therefore wrong to treat itself as functus officio. The June order was also unlawful because Regulation 26 did not authorise a percentage of the capital contribution.

4. The 21-day requirement in Regulation 26 is not automatically jurisdictional merely because the Regulation uses the word “must”. Its effect must be determined by the statutory context and purpose, applying the approach in R v Soneji [2005] UKHL 49. The Crown Court may extend time where refusing to entertain the application would cause material injustice or unfairness and an acceptable explanation for delay is provided.

5. The time limit remains significant. Defendants and their solicitors must comply with it, and an extension should not be granted without cogent and compelling reasons. The unexplained delay of many months, coupled with a misunderstanding of the law, did not justify an extension. The Administrative Court decided the discretionary issue itself because remittal would have served no useful purpose and the trial judge had retired.

6. The Director’s decision not to recover the refunded £39,348 was confined to the unusual facts and created no precedent.

High Court (Administrative Court): permission and an extension of time were granted to challenge the April order. The claim for judicial review was allowed. The Crown Court orders dated 5 April, 19 June and 3 October 2019 were quashed.