A circuit judge has identified a lacuna in the legal aid rules that means impecunious parties receiving criminal legal aid but facing costs orders for civil committal proceedings are not protected, unlike those in the criminal courts and legally aided parties in the civil courts.
His Honour Judge Lewis in Chelmsford said this did not appear intentional and seemed “unfair”.
The defendant in The Chief Constable of Essex Police v Douherty (Costs)  EW Misc 9 (CC) was committed to a young offenders institutions for breach of a ‘gang injunction’, which aims to prevent gang-related violence and drug dealing, pursuant to part 4 of the Policing and Crime Act 2009.
The claimant sought costs, which he said should be approached in the same way as any other civil case. The defendant said that, while these were technically civil proceedings, they were run and managed as if they were criminal proceedings, and he was in receipt of criminal legal aid. Thus, the court should approach costs in the same way that a criminal court would, taking account of his means and ability to pay.
His position was that, given he was on benefits, the judge should make no costs order at all; or if he did, it should not be enforced without leave.
HHJ Lewis recounted that, when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, there was “considerable confusion” about whether defendants to civil committal applications should apply for civil or criminal legal aid, with a series of cases establishing that they were criminal proceedings.
Legal Aid Agency guidance confirms that criminal legal aid for civil contempt proceedings heard in civil venues is not means-tested. A party in receipt of civil legal aid will have the benefit of section 26 of LASPO, which requires the court to evaluate the individual’s financial resources and conduct.
HHJ Lewis said: “As section 26 of LASPO only applies to civil legal aid, it must follow that it does not apply in civil committal proceedings where the defendant is in receipt of criminal legal aid. There does not appear to be an equivalent provision for criminal legal aid, no doubt because the criminal courts already take account of an offender’s means and ability to pay before making a costs order.”
He found “nothing to suggest” that this omission was intentional. “Rather it appears to have come about because of the general confusion in 2012 about the type of legal aid that respondents to civil committal applications should receive…
“It does, however, seem unfair to those defendants who are impecunious that in certain respects they are put in a worse position by the decision that they should receive criminal, rather than civil, legal aid.”
Eve Robinson (instructed by the Force Solicitor) represented the claimant, with Stephen Fidler, Solicitor-Advocate, for the defendant.