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

Article 6(1) applies only where proceedings determine a genuine and serious dispute about the existence or scope of a civil right, or an arguable domestic-law right, and the result is directly decisive for that right. An initial compensation application does not engage Article 6 where no dispute exists.

Obiter, a government compensation scheme may confer a civil right even if it is voluntary, non-statutory and directed to historical wrongs. The relevant indicators are precise eligibility rules and provisions fixing or formulaically determining compensation. The scheme should be assessed as a whole, rather than by isolating individual heads of loss.

The appellant sought an exceptional case determination under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to obtain legal assistance for an application under the Windrush Compensation Scheme. The Director and reviewer refused funding, concluding that Article 6 was not engaged because the application involved no dispute and did not concern a civil right.

HHJ Bird dismissed the judicial review claim, holding that no dispute existed and expressing an obiter view that Scheme payments were not civil rights. The High Court decision is reported at [2024] EWHC 1281 (Admin). By the appeal, the appellant accepted that no dispute existed but sought guidance on the civil-right issue and on section 10(3)(b). The central issue was whether the Court should address that academic question.

1. Disposition. The appeal was dismissed. Lord Justice Lewis gave the judgment, with which Lord Justices Stuart-Smith and Peter Jackson agreed. The Director and reviewer had lawfully refused an exceptional case determination because the initial application involved no dispute. The appellant had subsequently applied for compensation and accepted an award, so there was nothing to remit.
2. Article 6. Article 6(1) provides procedural safeguards when a genuine and serious dispute about the existence or scope of a civil right, recognised at least arguably under domestic law, is being determined. The result must be directly decisive for that right. The initial application to the Home Office involved no dispute or contestation. Article 6 was therefore inapplicable, and the refusal of legal aid for that stage could not breach it.
3. Civil right issue. The Court nevertheless reviewed the High Court’s analysis because it was an important issue likely to recur. Its conclusion was expressly obiter and non-binding. A compensation scheme may confer rights capable of being civil rights where it contains precise eligibility conditions, identifies compensable losses and fixes or formulaically determines the amount payable. Voluntary status, non-statutory origin, payment from public funds and redress for historical wrongs are not decisive against that conclusion.
4. The Scheme had to be considered as a whole. It would be artificial to assess Annex D and Annex H, or other heads of loss, in isolation. The Court distinguished the relevant reasoning in Woś v Poland from the Italian Interns case and explained that observations in the Italian Interns case and JT v First-tier Tribunal concerned the scope of Article 1 of the First Protocol, not the distinct Article 6 question. Public-law enforceability through judicial review did not prevent the rights from being civil rights.
5. Other issues. A supplementary issue concerning a later review process was misconceived because no exceptional case determination had been sought or made for that process. Judicial review could not challenge a decision that did not exist. The appropriate course was to seek a determination and, if necessary, amend the existing claim or bring a fresh claim. The Court did not decide whether legal representation was required under Article 6. It observed that Article 6 contains no specific right to representation and that the assessment would be fact-sensitive. The alternative argument under section 10(3)(b) was not pursued and was academic.

1. Court of Appeal (Civil Division) The appeal was dismissed. The Court upheld the lawfulness of the refusal to make an exceptional case determination.
2. High Court of Justice, King’s Bench Division, Administrative Court HHJ Bird dismissed the judicial review claim in [2024] EWHC 1281 (Admin), holding that no dispute existed and expressing an obiter view on the civil-right issue.