Kevin McCann ("the applicant") is currently a remand prisoner at HM Prison,
Crumlin Road, Belfast. At a governor's adjudication held on 16 April 1993, he
was found guilty of an offence against prison discipline. He wishes to challenge
the lawfulness of the decision of the Governor. In order to do so, he made
application for leave to apply for judicial review of the adjudication. Leave
was granted by Carswell J (as he then was) on 28 April 1993.
In order to prosecute the judicial review challenge, an application for legal
aid was made on behalf of the applicant on 6 May 1993. On 13 May 1993, the
applicant's solicitors were informed that this application had been refused by a
Certifying Committee. An appeal against the refusal was lodged. It was
considered by the Legal Aid Committee on 23 July 1993 and the refusal to grant
legal aid was confirmed. By letter of 26 July 1993, the Legal Aid Department of
the Law Society informed the applicant that the refusal was "on the grounds that
it appeared unreasonable in the particulars circumstances of the case that [he]
should receive legal aid".
By this application, the applicant seeks judicial review of the decision of the
Legal Aid Committee to refuse legal aid.
The statement filed under Order 53 set out the basis of the challenge to the
Legal Aid Committee's decision as follows:-
The manner in which this statement is pleaded and in particularly the reference
to R v Legal Aid Department ex parte Hughes reflect the perception of the
applicant and his advisers that the Legal Aid Committee's decision was taken on
the basis that the applicant did not enjoy a reasonable prospect of success in
his application. On the filing of the first affidavit on behalf of the
respondent it became clear that this perception was misconceived. Ms Jane
McDonald, the Chairman of the Committee which took the decision to refuse legal
aid, deposed that the refusal was based not on the "legal merits" test set out
in Regulation 7f of the Legal Aid (General) Regulations (Northern Ireland) 1965
but rather on the basis of Regulation 7g which provides:-
When the reason for the Committee's decision became manifest, Mr O'Rourke (who
appeared on behalf of the applicant) presented a submission on an entirely
different basis from that foreshadowed by the Order 53 statement and the
applicant's original affidavit. While expressing understandable surprise at this
turn of events, Mr Thompson (who appeared for the respondent) did not object to
the case being considered by me on this reformulated basis. In its refined and
modified condition the applicant's case resolved the following propositions:-
The Committee failed to have regard to the high
probability that the applicant would be successful in his judicial review
challenge to the Governor's decision.
I intend to deal with the last of these submissions first. It was submitted
strongly on behalf of the applicant that he had an unanswerable case for
judicial review of the Governor's award because of the delay in holding the
adjudication. No contrary argument was advanced on behalf of the respondent.
It was therefore submitted that the virtual certainty of success in the
application should have been a potent factor in favour of the grant of legal aid
and the failure of the Legal Aid Committee to take it into account rendered its
decision to refuse legal aid invalid.
The reasons for refusal of legal aid are set out in paragraphs 4 and 5 of the
first affidavit of Jane McDonald as follows:-
"4. The Committee refused the appeal on the grounds that it appeared
unreasonable that the applicant should receive legal aid in the particular
circumstances of the case, in accordance with Regulation 7g of the Legal Aid and
Advice General Regulations 1965. I refer to the notification of refusal dated 26
July 1993 specifically setting out the statutory ground of refusal.
5. Regulation 7g is a ground for refusal of legal aid distinct from 7f. In 7f
one is dealing with the `legal merits' approach. In 7g there is a wider issue:
is it reasonable that in the circumstances of this particular case bearing in
mind the advantage to be obtained by the applicant for legal aid the substantive
proceedings and the cost to the public purse of doing so, that the applicant
should be in receipt of legal aid to advance his case. A standard often adopted
by the Committee is to determine whether or not it is likely that the applicant
for legal aid, if possessed of sufficient resources, would use those resources
to fund his own case. In the context of Kevin McCann's application for legal aid
consideration was given to the nature of the case, the personal circumstances of
the applicant and the penalty imposed by the prison governor, and reached the
conclusion that in this particular case and the circumstances of it, it was
unreasonable that McCann should be given legal aid to any extent."
Neither in this affidavit nor in the submissions made on behalf of the
respondent to this court was it suggested that the Legal Aid Committee had given
consideration to the high probability of success for the applicant. Mr O'Rourke
submitted that this omission was fatal to the validity of the decision and he
developed his argument on this theme in the following manner. The reasoning of
the Legal Aid Committee (as outlined in Ms McDonald's affidavit) depends on an
assessment of the cost effectiveness of the application. The evaluation of the
advantage to the applicant pitted against the cost to the public purse is par
excellence a cost effective exercise. It was argued by Mr O'Rourke, however,
that such an exercise is by definition flawed if it fails to take into account
the chances of success particularly if these are extremely high since (in those
circumstances) the prospect of the public purse being required to fund the
application may be negligible or remote. In this context, he drew attention to
the Notes for Guidance in the 1993 Legal Aid Handbook which at p.65 deals with
the Cost Benefit approach. The principle is stated as follows:-
"Principle.
If the application is to take proceedings in which the estimated costs to the
applicant are likely to exceed the value of any benefit gained by the applicant,
a grant of legal aid will not be justifiable:
(a) to the applicant if it raises expectations which cannot be satisfied because
any award will be absorbed by payment of a contribution and/or the statutory
charge;
(b) to the courts if time and resources are used up by cases which would not be
pursued in the absence of legal aid because the applicant, were he/she a person
of moderate means, would not have paid privately for the proceedings;
(c) to the taxpayer if money is spent for nothing, i.e. if the award in the
proceedings is not sufficient to cover the statutory charge."
It is important to note that the standard to be applied is expressed in
this way:-
"Standard.
Legal aid should only be granted to pursue a case in which costs are likely to
exceed the value of any benefit gained thereby where:
(a) there is a high prospect of success and the opponent is likely to indemnify
the applicant for the legal costs; or
(b) what is at stake is of such overwhelming importance to the applicant that it
overrides the question of costs."
Mr O'Rourke submitted that the applicant satisfied the requirements of both
exceptions. In the present context, however, it is the first of these which is
important. It was argued for the applicant that even if this was a case in which
costs are likely to exceed the value of any benefit claimed thereby (which was
not accepted) since the applicant enjoyed a high prospect of success he was
entitled to the exception which this passage recommended.
Although it was not clear whether these notes for guidance or similar provisions
applied in Northern Ireland, Mr Thompson was not disposed to argue (in my view,
correctly) that the Legal Aid Committee in refusing an application for legal aid
on a cost effective basis would be entitled to disregard the prospects of
success in the case and the likelihood that the applicant's opponent would be
required to indemnify the applicant for his legal costs. Quite independently of
the guidance from the Legal Aid Handbook, it seems to me to be elementary that
if a Legal Aid Committee decides to refuse an application on the basis that the
potential cost to the public purse outweighs the benefit that would accrue to
the applicant, it must take closely into consideration whether there will in
fact be any cost to the legal aid fund. It can only do so by making some
assessment of the chances of success for the applicant. This Legal Aid Committee
does not appear to have carried out such an assessment. This omission must
render its decision invalid and the decision must therefore be quashed.
My conclusion on this aspect of the case effectively disposes of the application
but since it is my intention to remit the case to the Legal Aid Committee for
its further consideration, it may be helpful if I were to make some brief
observations on the other arguments presented on behalf of the applicant,
without expressing any concluded view on them.
It was forcefully argued by Mr O'Rourke that the possibility that the applicant
might be penalised in future disciplinary proceedings by the existence of the
adjudication and award of April 1993 was a factor of the utmost importance which
cannot have been given due weight by the Committee.
In her second affidavit filed on 10 November 1993, Ms McDonald dealt with the
topic in this way:-
"3. ... I can say from my own experience and also from that of the Legal Aid
Committee in dealing with applications of the sort brought by the applicant in
his substantive case, that we are experienced in prisoners' cases. In general
terms, we would know, as I know myself, that a `conviction' of a disciplinary
offence within the prison can count against a prisoner in future disciplinary
proceedings and, indeed, might ultimately affect his prospects of obtaining
parole. This applies equally in respect of a remand prisoner as a convicted
prisoner. I, personally, would doubt whether or not a conviction of this sort
would ultimately make any difference to the way in which the applicant might be
dealt with in future disciplinary proceedings or on his application for parole,
but can say that in a general way the effects of his `conviction' in this regard
would have been present to the members of the Committee and were present to my
own mind at the time of refusing him legal aid for his substantive proceedings."
The expression of doubt as to the effect that the adjudication and award might
have on future disciplinary proceedings appears to be impressionistic or
intuitive rather than the product of any empirical knowledge or research. I am
not in a position to make a fully informed judgment as to the likelihood of the
award affecting the applicant in future disciplinary proceedings. I am well
aware, however, that, after conviction, a prisoner adjudicated guilty on an
offence against discipline faces a range of possible penalties one of which is
loss of remission and that this is not infrequently a feature of awards by
governors and Boards of Visitors. It appears to me that the existence of a
previous `conviction' and award must at least increase the risk in future
disciplinary proceedings of an award involving loss of remission or of an
enhanced penalty involving a longer period of loss of remission than might
otherwise be imposed.
In those circumstances, I believe that a Legal Aid Committee would wish to
reflect very carefully before deciding to withhold legal aid from a prisoner
whose liberty might be imperilled even for a limited period by being denied the
opportunity to challenge the validity of the adjudication and award made against
him. Moreover, I do not consider that this possibility can be dismissed as
lightly as appears to have been done by Ms McDonald in the paragraph of her
affidavit which I have quoted.
I do not suggest that the possibility of an enhanced award in future
disciplinary hearings will inevitably and automatically require the grant of
legal aid to pursue a challenge to a governor's award. Nevertheless, where such
a distinct risk has been identified (even if it is a slender one) I believe that
the circumstances in which legal aid should be withheld will be exceptional.
Since it is unnecessary for me to do so, I do not propose to make a finding on
whether the Legal Aid Committee in this instance failed to give due weight to
the possible future effect of the existence of the adjudication and award and on
whether, by reason of this and the other factors canvassed on the applicant's
behalf, their decision was one which no reasonable Committee could have reached.
I believe, however, that the Legal Aid Committee which considers the application
anew will require to examine closely the possibility of the applicant being
disadvantaged at future disciplinary proceedings before withholding legal aid in
this case.
In this context, it is appropriate for me to echo the regret expressed by Ms
McDonald in her second affidavit and repeated by Mr Thompson in the course of
his submissions that neither solicitor nor counsel on behalf of the applicant
attended the Legal Aid Committee which decided the applicant's appeal.
The Legal Aid Committee is composed of experienced and able lawyers drawn from
both branches of the profession who give generously of their time to carry out
this important work and, on the whole, they do so in exemplary fashion. The
Committee is entitled to expect the co-operation of lawyers acting on behalf of
applicants in attending committee meetings to present and elucidate the case for
the grant of legal aid. In the course of the hearing of this application Mr
O'Rourke (who, it should be said, was not originally retained in the case) was
at pains to emphasise how important the outcome of the proposed judicial review
of the Governor's award was to the applicant. It is unfortunate that this
perception of the importance of the case did not bring about the attendance of
solicitor or counsel at the Committee meeting of 23 July 1993 not least because
a different conclusion might well have been reached had the Committee had the
benefit of the arguments canvassed on the applicant's behalf before me.
Accordingly, for the reasons that I have given, I will quash the decision of the
Legal Aid Committee and remit the matter to the Committee for its further
consideration in light of the observations which I have made as to the correct
approach to be taken to the application for legal aid. I would expect the
applicant to be represented before the reconvened committee at least by his
solicitor if not also by counsel. I do not know whether it is possible that the
applicant's appeal can be heard by a differently constituted committee. If that
is possible, the Committee may wish to consider whether that would be
appropriate but I do not direct it.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY KEVIN McCANN
FOR JUDICIAL REVIEW
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J U D G M E N T
of
KERR J
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