IN THE COURT OF APPEAL (CIVIL DIVISION)- ON APPEAL FROM THE HIGH COURT OF JUSTICE - QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT
This is the judgment of the court to which each of its members has contributed.
These appeals all concern decisions by the Director of Legal Aid Casework ("the Director") to refuse applications for civil legal aid. The decisions were made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") and in the light of the Lord Chancellor's Exceptional Funding Guidance (Non-Inquests) ("the Guidance"). In each case, the Director decided to refuse applications for exceptional case funding ("ECF") under section 10 of LASPO.
On 30 January 2014, Turner J ordered that the cases be listed together inter alia, because they raised common issues as to the circumstances in which the European Convention on Human Rights ("the Convention") and the EU Charter of Fundamental Rights ("the Charter") required the provision of legal aid in civil cases.
Collins J granted judicial review in each of the six cases that were before him. As we shall explain, the appellants have not pursued an appeal in the case of IS. But they appeal the decisions in the cases of Gudanaviciene, LS, Reis, B and Edgehill. The judge held that the Guidance was unlawful in that it misstated:
(i) the circumstances in which legal aid in civil cases must be made available under section 10(3) of LASPO; (ii) the test for determining when article 6 of the Convention and article 47 of the Charter require the provision of legal aid in civil cases; and (iii) the circumstances in which article 8 of the Convention requires the provision of legal aid in civil cases generally and in immigration cases in particular. Applying what he considered to be the correct test to the facts of each case, he concluded in the cases of Gudanaviciene, Reis, B and Edgehill that the Convention required the provision of legal aid; and in the cases of IS and LS that the decisions should be reconsidered by the Director. In the case of B, he also found that civil legal aid should be made available because the services to which the application related were "in scope" i.e. they fell within para 30 of Part 1 of Schedule 1 to LASPO.