Neutral Citation Number: [2008] EWHC 2974 (Admin)

Case No. CO/8551/2006 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 13 November 2008
 
B e f o r e: 

MRS JUSTICE COX 
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Between: 
THE QUEEN ON THE APPLICATION OF GKR LAW SOLICITORS 
Claimant 
v 

LIVERPOOL MAGISTRATES' COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Paul Smith appeared on behalf of the Claimant 
The defendant was not represented and did not attend
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J U D G M E N T 

1.	MRS JUSTICE COX:  The issue in this case is whether the Liverpool Magistrates erred in deciding, in the exercise of their discretion, not to grant the right to legal representation in the case of Joan Southern.  Her application for representation was made by the claimant's sollicitors, GKR Law.  It is not in dispute that they have a sufficient interest in the refusal of a right to representation to apply for judicial review of the refusal (see R (On application of Punatar & Co) v Horseferry Road Magistrate's Court [2002]  EWHC 1196 Admin).  The solicitors were granted permission to apply by Pitchford J on 14 March 2007.  
2.	The claimant is represented today by Mr Smith of counsel.  The defendant does not appear and is not represented.  
3.	The facts essentially are these.  Miss Southern appeared before Liverpool Magistrates' Court on 12 June 2006 and pleaded guilty to exceeding a speed limit.  She was given three penalty points.  She was unrepresented at the hearing.  The case was then listed for a special reasons hearing on 17 July 2006, at which the question whether her licence should be endorsed would be considered by a court.  Miss Southern was then working as a nurse at Walton Prison.  Her special reasons were that whilst shopping at Tesco she was approached by two former inmates of the prison, who started talking to her children and asking her personal questions.  Feeling threatened by their presence and behaviour, Miss Southern jumped into her vehicle and drove away, subsequently driving through a speed camera which is located near the Tesco store and consequently received a speeding ticket.  
4.	Miss Southern applied in writing for legal aid in order to be represented at the special reasons hearing.  The original request was considered and refused on 22 June 2006.  On 5 July 2006 the court heard and refused an appeal against that refusal.  The claim is for judicial review of the refusal of the magistrates on 5 July to grant legal aid.  
5.	The basis for the application for a representation order was that ‑ given the circumstances of the offence ‑ Miss Southern intended to call as a witness her young son then  aged 12 to give evidence as to what had happened at the scene.  It was submitted on her behalf that it would be  inappropriate for her, as his mother, to question him directly about the offence; and that as a young child he qualified for special measures under the Criminal Justice Act 2003 such as a video interview and videolink evidence to the court room to assist him in giving his evidence, none of which his mother would be able to arrange herself without the benefit of legal assistance.  
6.	The statutory power for a trial court to grant a right to representation is to be found in Schedule 3 paragraph 2 (1) to the Access to Justice Act 1999.  At the time of the magistrates' decision on 5 July the only question was whether the grant of a right to legal representation for Miss Southern was in the interests of justice, by reference to the statutory criteria listed in Schedule 3 paragraph 5.  Paragraph 5 (2) of that Schedule lists the following factors: 
"5 (2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account ‑
 (a) whether the individual would, if any matter arising in the proceedings was decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation,
 (b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
 (c) whether the individual may be unable to understand the proceedings or to state his own case,
 (d) whether the proceedings may involve the tracing, interviewing or expert cross‑examination of witnesses on behalf of the individual, and 
 (e) whether it is in the interests of another person that the individual be represented."
7.	Given the necessity for the defence to interview and take a statement from or conduct a video interview of Miss Southern's young son, Mr Smith submits ‑ and I accept ‑ that paragraph (d) was in play here, and the affidavit filed on behalf of the magistrates effectively acknowledges this.  
8.	Mr Smith submits that in the particular circumstances of this case the only reasonable conclusion was that it was in the interests of justice for Miss Southern to be granted a  right to legal representation.  He submits essentially as follows.  First, there was a real or a perceived risk that Miss Southern's son's evidence as to the facts would be tainted as a result of him being interviewed and attended by his mother.  Secondly, even if his evidence was not in fact tainted, there was a real risk that the court might perceive that it was by virtue of him being interviewed and attended by his mother.  Thirdly, because of the son's young age, consideration had to be given by the defence as to whether he should be video interviewed to give evidence in‑chief.  This would be beyond the skills and resources of the defendant representing herself.  That would mean that the measures made  available by Parliament to improve the quality of evidence given by children would effectively be denied to a defence witness.  
9.	In the defendant's affidavit in response to this claim it is said, first, that the magistrates hearing the appeal against the refusal questioned the necessity of the calling  of the defendant's son to give evidence since, it is said, it would be unsworn and they queried whether it would be of any probative value.  Secondly, it is said that they considered it might be more distressing for him to be questioned by a relative stranger "rather than being led through his evidence by his mother with the assistance of the adviser and magistrates".  Thirdly, it is said only that they "had regard to" the fact that due to his age the child would qualify for special measures such as a videolink to assist him in giving his evidence.  
10.	Their conclusion that the appeal against the refusal of legal aid should not be allowedthen follows without further explanation, and in particular without explaining how that last factor, which they said they took into account, led them to dismiss the appeal.  
11.	It is also a matter of some concern that, in the explanation provided, there appears to be a degree of pre‑judging of the case in relation to the explanation put forward for the offence and the value of this evidence.  
12.	I consider that, in the circumstances of this case, namely the expressed intention of Miss Southern to call her son as a witness of fact at the special reasons hearing, her entitlement to do so, the statutory requirement that special measures be taken to assist a young child in giving evidence to the court so as to improve the quality of that child's evidence, and Miss Southern's inability, due to lack of the  necessary skills and resources required, to make the appropriate arrangements herself for those special measures to be undertaken, it was clearly in the interests of justice to grant her the right of representation, so as to secure for her the necessary professional skills to enable a fair and proper consideration of the questions to be determined at that hearing.  
13.	In view of my conclusion in relation to paragraph (d), I  consider that there is no need to go on to deal with Mr  Smith's alternative submissions that there was here a substantial question of law involved, or that Miss Southern's reputation was at risk under sub‑paragraphs (a) and (b) of paragraph 5 (2) which were, in my view, far less persuasive on the facts of this case.
14.	In my judgment this case succeeds under sub‑paragraph (d).  I shall therefore make an order quashing the refusal of Liverpool Magistrates to grant Miss Southern a right of representation by GKR Law solicitors.  
15.	It appears, having regard to what has happened since, that there is no need now for any direction to the  magistrates to consider the matter afresh since, on 17 July  2006, a district judge heard her special reasons argument and, happily for her, held that special reasons existed.  
16.	For the reasons given I grant the quashing order sought. 
17.	Are there any other applications?
18.	MR SMITH:  Could I make an application for ‑ I think the right place to come from is ‑ costs from central funds? 
19.	MRS JUSTICE COX:  I think it is, yes.  I make that order.
20.	MR SMITH:  I raise a further matter for clarification.  Miss Southern paid my instructing solicitors to represent her. 
21.	MRS JUSTICE COX:  Before the district judge?
22.	MR SMITH:  In front of the district judge, yes.  She was represented in the hearing but not enough in the wider normal context.  So I wonder if it is possible for costs in these matters to be paid ‑ possibly through replacing the justices' decision in terms of legal aid ‑ so my solicitors return the money to her so they get their money from legal aid.
23.	MRS JUSTICE COX:  Have I power to do that?  Normally the costs are ordered out of central funds ‑ ‑ I cannot make any order other than that reasonable costs be recovered.  I can certainly make the order out of central funds.  
24.	MR SMITH:  Is it possible for the magistrates ‑ in quashing the decision not to give legal aid ‑ to be directed to revisit the decision to give legal aid?
25.	MRS JUSTICE COX:  I cannot do that now.  It is no longer live.  Will not the order for costs out of central funds cover the costs she has incurred?
26.	MR SMITH:  I can go away and think on that.
27.	MRS JUSTICE COX:  Do you want to do that because, in principle, if I had the power to do it and there is an avenue through which it can be done, I agree that since she has paid privately ‑ and given the effect of my judgment is that she would have had an order ‑ there should be some mechanism by which that can be achieved.
28.	MR SMITH:  I can research that.
29.	MRS JUSTICE COX:  You can make any submissions in writing about that if you want to.
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