In the High Court of Justice - Queen’s Bench Division - Divisional Court
This renewed application for permission to bring judicial review raises important issues regarding applications to judges of the Crown Court to transfer representation orders and the revocation of legal representation orders by the Court.
The circumstances in which the Court may order a change of provider are carefully laid down by the provisions of regulation 14 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 614 of 2013) (the Regulations) which we set out at paragraph 33 below. The rationale behind the legislation is clear and designed to further the interests of justice:
i) Defendants in criminal proceedings cannot be permitted unnecessarily to delay and complicate proceedings by the device of changing their representatives. A judge must, in the light of general experience, always be astute to guard against this risk which has significantly increased in recent years.
ii) It is particularly important in the overall interests of justice to encourage lawyers to give realistic advice to defendants in criminal proceedings. Lawyers of integrity invariably do so. A defendant's unhappiness or disagreement with such advice is not a ground which ordinarily will permit the transfer of the representation order.
iii) Legal aid resources are limited. They must not to be wasted in unnecessary transfers of legal instructions from one lawyer to another. It is self-evident that the effect of any waste of resources is to disadvantage other defendants in the criminal justice system and the lawyers who represent them. In addition, judges must, in the current state of the market for legal services, also be astute to the risk that some will try to induce a defendant to change his solicitor for commercial reasons and therefore be astute to the conflicts of interest that might arise.
Judges of the Crown Court are already heavily burdened. They are entitled to expect that solicitors making such applications will act with the highest standards of objectivity and integrity. It is evident, however, that the judges of the Crown Court must, for the reasons we have given, subject applications for transfers to rigorous and searching scrutiny.
The application to the Recorder of Birmingham and the refusal of permission by the single judge
In the application, the claimant seeks permission to bring judicial review proceedings challenging the decision by the Recorder of Birmingham, HHJ Melbourne Inman QC, on 2 December 2014 in which he refused to permit the legal representation order granted to the claimant to be transferred to Duncan Lewis , a large firm of solicitors with offices in locations across England and in Cardiff, and ultimately had to revoke the claimant's representation order.
Permission was refused on paper by the single judge, McGowan J, on 31 March 2015, who held that the Recorder of Birmingham was entitled to reach the conclusions he did on the merits of the claimant's repeated applications to transfer his legal representation to new solicitors and there were no grounds to support the contention that his decisions were either unreasonable or irrational. In the course of her reasons for refusing permission, McGowan J made the following observation:
"Although a defendant in criminal proceedings is entitled to legal aid, subject to satisfying the relevant criteria, that is not a right to change solicitors and counsel at will. Nor does a defendant have a greater "choice" dependant on the seriousness of any sanction he faces."