HJK & Ors, R (on the application of) v The Director of Legal Aid Casework

Under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the question is whether, objectively, refusal of legal aid would prevent an applicant from presenting a case effectively and without obvious unfairness. The assessment must be individual and consider the importance of the issues, the procedural, legal and evidential complexity, and the applicant’s ability to participate without assistance.

There is no separate preliminary “foot in the door” stage which justifies withholding legal aid where the applicant cannot make an effective initial application. For traumatised trafficking victims making out-of-time criminal injuries claims, the need to explain delay and provide supporting evidence may make the application complex and inaccessible without legal assistance. Article 4 does not presently require the state itself to compensate victims of trafficking. Article 8 is not engaged merely because compensation would materially improve a victim’s life.

The claimants were victims of trafficking and modern slavery who sought Exceptional Case Funding under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to obtain legal assistance in making applications under the Criminal Injuries Compensation Scheme 2012.

Their applications were substantially out of time. The Director accepted in the second refusals that the applications concerned civil rights for Article 6 purposes, but concluded that the application process was straightforward and that the claimants could apply effectively without legal assistance. She also concluded that Articles 4 and 8 were not engaged.

The central issues were whether refusal of funding breached or risked breaching Article 6, whether the proposed compensation claims engaged Articles 4 or 8, and whether continued refusal of funding breached either provision.

1. Ground 1 succeeded. The Director’s failure to make an exceptional case determination under sections 10(2)(a) and 10(3)(a)(i) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was unlawful. A refusal of legal aid would breach the claimants’ Article 6 rights.
2. The applicable question was whether each claimant could present the case effectively and without obvious unfairness. The court applied an objective correctness standard and considered the importance of the issues, the complexity of the procedure, law and evidence, and each claimant’s personal ability to participate without legal assistance.
3. The Director accepted important disabling features, including trauma, mental-health conditions, limited English literacy and the absence of suitable assistance from family or friends. Her conclusion that the claimants could nevertheless submit a simple initial application was inconsistent with those findings.
4. There was no separate preliminary application merely to obtain a “foot in the door”. The claimants had to make an effective application at the outset. Because their claims were out of time, they had to explain the whole period of delay and provide evidence enabling the claims officer to determine the application without further extensive enquiries. Translation and medical evidence could also be required.
5. A telephone helpline, online materials and review or appeal rights did not cure the difficulty. In the circumstances, the claimants could not engage effectively with the application and evidence-gathering process without a trusted lawyer.
6. Grounds 2 and 3 failed. Article 4 did not impose, on the authorities cited, a general obligation on the state to compensate victims of trafficking for injuries caused by private third parties. Krachunova concerned enabling claims against traffickers for lost earnings and did not establish a wider obligation to provide state compensation.
7. Article 8 was not engaged. Although an award might materially improve the claimants’ lives, refusal of compensation did not have a sufficiently close or significant impact on the essence of their private or family life. Ground 4 therefore also failed.

The claim succeeded only on Ground 1. Grounds 2 to 4 failed.