Public Law Solicitors

Whilst it is of course the case that whether representation made a difference to the outcome of a case, cannot be definitively answered, the normal answer, is at least hoped, yes it did make a difference. Whether that difference is such as to make the trail unfair, is one that the Court of Appeal ultimately adjudicates under s.13 of the Administration of Justice Act 1960 if the matter gets that far.

Where legal representation will always make a difference is where the defendant is a vulnerable individual, through one of the normal factors such as age, mental illness, previous trauma, emotional involvement and or some other disability affecting how they interact with the other party and or Court.

This effect can be at various different stages, pre-hearing, the hearing or at sentencing.

Pre-Hearing

In the most recent example, the case of Taukacs v Taukacs [2015] EWHC 2365 (Fam) where the Honourable Mr Justice Holman had to deal with a litigant in person who had been held in detention since being arrested on the 1 August 2015, as she was departing on a holiday overseas. She appeared before him on the afternoon of the 3 August 2015, still unrepresented, where Holman J. order her immediate release from custody, and stated that she should never have been detained in the first place, nor prevented from leaving the UK. It is evident that had Mrs Taukacs had access to a lawyer in the period from the 1 August 2015, as it appears she was entitled to as she was accused of contempt of court by breach, she may have been able to access the procedure of the Court, on an emergency basis, and have arranged her release. Instead she was held until the afternoon before promptly being released having missed her holiday.

As such in this pre-hearing stage representation would have removed the defendant at an early stage from the system, and cleared up an error, which appears to have been caused by the wording of a standard order, and a misunderstanding by police officers. As such access to the procedure was ultimately what representation would have brought in this matter.

In addition when orders are first granted, it is imperative that the order is lawful in the first place. In Re: Hancock [2015] EWHC 2324 (Fam), was an example were the order that was breached wasn’t in line with the guidance, and whilst some of the contempts were still in breach of a proper order, there were clearly some which would not have been included in a properly drafted order. As such the Rt Hon, Sir James Munby, re-wrote the original order so as to bring it in line with the guidance of the Court in Re J(A Child) [2013] EWHC 2694 (Fam), although the defendant was still in contempt.

Hearing

It is of course the case that once the hearing starts this is where the real assistance begins in terms of provision of representation, in true Horace Rumpole of the Bailey style. However the reality is far from this, contempt as a starting point is highly technical, a specialism, (although don’t mention that word, or else there will be an accreditation no sooner than its mention), and conducted often in exceptionally short notice, under exceptional pressure. There are surprisingly different rules in different courts, (civil, criminal, or family) and different legal aid processes between the senior, the lower courts and criminal courts.

Cross examination can often make the difference between a finding of contempt or not, but that is not the sole issue. Tactically getting a trial split when an issue of contempt arises is fundamentally an issue that would arise only on proper consideration by a lawyer. Lady Justice Hale as she then was, in the Re K [2003] 1 FLR 277 stated that the issue of representation is no more than “might have made a difference. I do not say that it would make a difference, but it might have done.” This is necessarily a low standard, there is no way of knowing whether the lack of representation actually did make a difference in any particularly case.

Sentence

At this stage a defendant lawyer is simply, assisting the Court to come to its conclusion on sentence, the claimant lawyers have little input. The real power of a lawyer at this stage is the instruction of experts in cases where the person is a vulnerable person. In a number of cases expert reports have made the real difference between a prison sentence which starts immediately and one that is suspended. In Re: Hancock [2015] EWHC 2324 (Fam) the court recognised the real benefit of an expert psychiatric report which assisted the Court in understanding a complex individual, who had suffered considerable emotional trauma at various stages of his life. He had previously been sentenced to an immediate sentence for previous similar breaches, on this occasion the Court was more lenient despite being a second offence, and suspended that sentence. In other similar cases it can clearly be seen that even the most serious of breaches with proper mitigation can be reduced, so that the person serves the minimum prison sentence, or not one at all.

Conclusion

Legal aid for contempt is available on a no means, no merits basis in the senior courts, and in the lower courts on an interests of justice basis. Every person should access legal aid where they cannot afford it even if they wish to conduct their own appeal. The family courts are particularly forward looking by granting provision orders for legal aid, to allow a defendant who is unrepresented to find a lawyer with legal aid in principle available. This ensures that the robust procedures required for contempt are adhered to and the matter can be kept on track.

About the Author – Adam tear

Adam was awarded Solicitor Advocate of the year 2014 following being a runner up in 2013.

Adam joined Duncan Lewis in September 2008 and is currently a Director in Professional Regulation, Civil Litigation, Civil Liberties and Public Law. Adam formerly worked for White Ryland Solicitors and has volunteered with the Free Representation Unit dealing with employment law issues.

Adam was called to the Bar in 2000 and cross qualified as a Solicitor in 2004 and as a Solicitor Advocate in 2005. He is qualified under the Immigration & Asylum Accreditation Scheme, as a Level 3 Advanced Caseworker and Supervisor. This is the highest level of accreditation under the scheme and held by only a small class of people approved by the Law Society. Adam is appointed as a member of the Committee for Solicitors Association of Higher Court Advocates. Adam has also been appointed as an independent Funding and Costs Appeals adjudicator to the Legal Aid Agency.

Adam has acted as a Solicitor and Advocate in numerous matters. His main focus is work within the higher courts in both the public law field (both national and international) and civil litigation generally.

As an advocate Adam represents a cost effective method to approaching litigation within the higher courts. The direct instruction of an advocate by our clients reduces the risk of confusion and allows a realistic cost effective approach to litigation. Adam’s experience as a solicitor also ensures that the case reaches the court prepared in a manner that the courts expect allowing for simpler presentation of the case.

Adam’s specialism falls across a broad spectrum of cases ranging from complex government contractual litigation through to civil contempt and costs following successful cases.