Joyce Oji, R (on the application of) v The Director of Legal Aid Casework

Exceptional case funding under Legal Aid Sentencing and Punishment of Offenders Act 2012 is not subject to a general discretion. The discretion under section 10(3)(b) arises only where the Director cannot decide under section 10(3)(a) whether refusal of funding would breach Convention rights.

A compensation scheme for historic wrongs does not engage Article 6 merely because an applicant seeks compensation. Article 6 requires a genuine and serious dispute concerning a right recognised, at least arguably, under domestic law, with proceedings directly decisive of that right. Article 8 is engaged only where state action affects the essence of private or family life; a material financial improvement is insufficient.

The claimant, a victim of the Windrush scandal, applied for exceptional case funding to obtain legal assistance with a claim under the non-statutory Windrush Compensation Scheme. The application was refused and the refusal was confirmed on review.

The review decision concluded that neither Article 6 nor Article 8 of the European Convention on Human Rights was engaged. It did not consider the discretion under section 10(3)(b) of the Legal Aid Sentencing and Punishment of Offenders Act 2012. The claimant sought judicial review, arguing that the Director had misdirected herself on Article 6, breached Article 8, and failed to consider the discretionary gateway.

1. The claim was dismissed. The relevant decision was the review decision, which constituted a fresh decision confirming the outcome of the initial refusal.
2. Article 6 requires the four conditions identified in Grzeda v Poland: a genuine and serious dispute over a right; recognition, at least arguably, of that right in domestic law; a dispute concerning the right’s existence, scope or exercise; and proceedings directly decisive of the right. At the date of the decision there was no dispute between the claimant and the compensation scheme.
3. Moreira de Azevedo v Portugal and Perez v France concerned unusual situations in which compensation claims were pursued through criminal proceedings. They did not displace the ordinary requirement for a dispute. Bank Mellat v HM Treasury (no.2) supported that conclusion.
4. Even assuming a dispute, the Windrush Compensation Scheme did not create a civil right protected by Article 6. It was non-statutory, voluntary, concerned one-off compensation for specific historic wrongs, was not directed to subsistence or welfare, and required assessment of evidence rather than application of a hard-edged entitlement. The scheme was therefore materially different from the statutory welfare or compensation schemes considered in Salesi, Wos, JT and related authorities.
5. Article 8 was not engaged. The authorities show that Article 8 is particularly concerned with matters such as family separation, interference with private life developed through lawful residence, or a significant impact on established immigration rights. A compensation award might materially improve the claimant’s life, but its refusal did not affect the essence of her private or family life. The procedural protection associated with Article 8 was therefore not triggered.
6. There was no general discretion under section 10(3)(b). Following Gudanaviciene, that provision applies where the Director cannot decide whether refusal of funding would breach Convention rights and must then consider the risk of breach and all the circumstances. Where the Director decides that no Convention right is engaged, section 10(3)(b) does not arise.
7. Neither Article 6 nor Article 8 was engaged, so the Director was not required to consider section 10(3)(b). The claim was dismissed.