CO/8207/2007 
Neutral Citation Number: [2008] EWHC 3239 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 22 September 2008
 
B e f o r e: 

HIS HONOUR JUDGE INGLIS 
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Between: 
THE QUEEN ON THE APPLICATION OF CHANEY 
Claimant

v 

LEGAL SERVICES COMMISSION 
Defendant 
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Mr J Hodivala appeared on behalf of the Claimant
Miss S Moore appeared on behalf of the Defendant
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J U D G M E N T
1.	JUDGE INGLIS:  In this case Sean Chaney renews an application for permission to apply to the court for a declaration against the Legal Services Commission but, in truth, against the decision of the Lord Chancellor, in the following terms:
"The provisions of paragraphs 14 and 22 of Schedule 4 of the Criminal Defence Service Funding Order 2001, as amended, that relate to funding for court representation ..... are incompatible with Article 6 (1) of the European Convention on Human Rights."  
2.	Sir Michael Harrison considered the application on paper and refused the application for permission.  In his observations he said:
"Following the decision of the Court of Appeal in AP and U Ltd v Crown Prosecution Service [2007] EWCA Crim 3120 the protection of the claimant's Article 6 rights is a matter for the court hearing the confiscation proceedings rather than a matter giving rise to incompatibility because of funding problems under the Convention."
It is necessary to consider the background to and set the scene for consideration of that question.  
3.	Between August 2005 and November 2006 the claimant committed offences of "clocking" and selling stolen motor vehicles and was convicted on indictment.  There followed confiscation proceedings which have not yet ‑ as events have happened ‑ run their course under the Proceeds of Crime Act 2002.  Those proceedings involve a process of the Crown Court, first of all, determining the extent to which the claimant has benefitted or is taken to have benefitted from offending; secondly, as a distinct and separate question, the amount that can be realised from his assets or assets which he has treated as having under his control.  The penalties for failure to pay the amount found to be due at the end of that process may amount to a substantial additional period of imprisonment.  
4.	The confiscation statement in support of the application in Mr Chaney's case claims £327,754.16.  One of the issues about realisable assets is the beneficial ownership of a house.  There is said to be substantial material running to several lever arch files that will have to be considered and analysed at the confiscation hearing.  
5.	Due to a conflict of interest, the claimant parted company with his solicitors and counsel who represented him at the trial and so, the certificate of representation having been transferred, instructed new solicitors who then needed and need to instruct counsel to conduct the confiscation proceedings.  New solicitors cannot find counsel of suitable seniority or probably any counsel at all to represent Mr Chaney because of the low level of remuneration provided.  
6.	The Criminal Defence Funding Order 2001 in Schedule 4 provides the rates that would be payable to counsel who accepted instructions.  The effect is that counsel will be paid £99.50 for half‑a‑day and £178.25 for a full day before the Crown Court with no separate remuneration for preparation.  Those rates have been revised to £150 and £275 respectively but the lower rates are the ones which will apply in Mr Chaney's case in the event that counsel can be persuaded to accept instructions.  There is the possibility of a fee for special preparation if the case involves a very unusual and  novel point of law or factual issue.  It is probably difficult to say that that will arise in Mr Chaney's case.  
7.	The only certificate of such special preparation arises ex post facto and after work has been done, so anyone taking on the case would not know the basis on which they were going to be remunerated.  
8.	Under the Protocol for Counsel: Confiscation and Graduated Fee Cases, promulgated only recently last month, a barrister is entitled to refuse to accept instructions in any publicly funded graduated fee criminal case where he believes that the remuneration he is likely to receive is inadequate having regard to his experience and expertise.  The detail of the Protocol makes it clear that provided counsel at the outset accepts instructions on a limited basis, for example, to conduct only the trial and not the confiscation proceedings, he is professionally entitled to do that.  
9.	The Access to Justice Act 1999 in Section 12 establishes the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.  Section 14 (3) provides that the Lord Chancellor may by order make provision about the payments which may be made in respect of representation.  
10.	The material before the court on this application includes a witness statement by Mr Vincent, the policy officer of the Bar Council, who says that on 23 March 2007 the Bar raised the issue of these low rates of remuneration in a Paper.  The Paper is appended to Mr Vincent's witness statement.  As a result of that Paper being produced to the government, a working group has been established, the meetings of which take place from time to time although it appears that Mr Vincent is not confident that the next date will be fixed very readily.  Nonetheless there is a process that is on foot which has not yet run its course.  
11.	The application seeks to challenge the level and basis of remuneration.  The remuneration is plainly very low.  It is difficult to think that there will not be a considerable  number of counsel who will not be prepared to take on confiscation cases.  Nor is it the case that it can be necessarily expected that counsel who has conducted a trial will, without difficulty, be able to deal with confiscation which in a case of any complexity is likely to raise entirely different issues from the ones covered at the trial.  The spectre is raised of the possibility of a large number of these confiscation cases having to go ahead without representation by counsel or, at least, coming on before the Crown Court  without such representation.  
12.	The submissions as developed are that Article 6 applies to confiscation proceedings and is engaged which is plainly the case; the Lord Chancellor has failed to make remuneration sufficient to obtain representation; the scheme is unlawful because it has the effect of denying access to justice, and although there is not a separate claim for breach of statutory duty the overarching duty in the Access to Justice Act is said to be apt to focus the Lord Chancellor's attention on the efficiencies of the scheme with respect to Article 6.  
13.	It is submitted that a finding of incompatibility ‑ a declaration of incompatibility ‑ would be an appropriate way forward.  It will have no immediate effect on the law but it will focus again the Lord Chancellor's mind on the problems that low remuneration may throw up.  It is submitted the Protocol makes clear the extent of the problem and the frequency with which, in the future, it is likely to arise.  
14.	The Lord Chancellor takes his stand in the reasons given in AP and U Ltd v Crown Prosecution Service and the Revenue & Customs Prosecution Office [2007] EWCA Crim 3128.  The judgment of the court was given by Lord Justice Latham.  That was a case where the Court of Appeal was considering incompatibility but in relation to Article 1.  
15.	Another feature of the confiscation scheme is that whereas at some stage in the past the assets which might be said to be tainted could be made available for funding the defendant's conduct of his case in the confiscation proceedings, that was no longer the case.  The law provides that those possibly tainted funds cannot be used for that purpose and that there is public funding available ‑ the public funding which is in question in this case ‑ so as to make it unnecessary to resort to those assets which, if it is possible, ought to be available to be confiscated.  
16.	The scope of that case was different.  It was concerned with a breach of Article 1 because someone who needed access to his property could not have it.  It also discussed the shape of the scheme and its impact upon an individual defendant as here.  I refer to paragraphs 19, 21 and 24 which I think fairly indicate the extent to which the problem that arises in this case was discussed in that case.  In paragraph 19 Lord Justice Latham indicated that the court had heard from Mr David Farrer QC on behalf of the Ministry of Justice:
"19 ..... [Mr Farrer] submits that the only real question is proportionality.  The power to make a restraint order [that is an order restraining the assets so they could not be used for any purpose] is acknowledged to be consequent on a measure which has a proper objective.  He submits that that objective is to prevent dissipation of assets which should remain available to meet any confiscation order ultimately made.  The steer contained in Section 69 (2) of the Proceeds of Crime Act is a clear indication of Parliament's intent.  And Parliament clearly intended, by extending public funding in the way that it did, to ensure that public funding replaced the use of a defendant's own assets.  The fact that there might have been other routes which could have been utilised to control the use of those assets does not mean that the means chosen by Parliament was one which it was not entitled to choose in an area of social policy.  The fact there may be harsh results in some cases does not justify the conclusion that the measure is incompatible with Article 1 of the First Protocol, that could only be so if there was such a significant population of those unable to obtain representation that there would be a clear systemic failure to provide any alternative which Parliament has considered appropriate.  In any event, where, in individual cases, the potential injustice arises, the court can deal with that, if necessary, under  Article 6.  But   that situation has not yet been reached."
At paragraph 21 the court dealt with a submission by Mr Farrer which has been described on this application by Mr Chaney's counsel as speculation about the state of affairs brought about by the level of fees payable under public funds:
"21 As to the adequacy of the aid provided, Mr Farrer points out that the problem in this appellant's case arises out of the fact that the level of payment in relation to confiscation proceedings is based on the premise that counsel will have been instructed for the purposes of the criminal trial and so been appropriately remunerated at that stage.  Whereas in his case there has in fact been discontinuity in the representation.  He asks us to note that the level of fees paid on the  grant of representation orders is now substantially greater than the level payable on the representation order granted in the appellant's case.  The problem is not that Parliament has failed to provide, in carrying out the balance to be struck between depriving the defendant of the right to use his own funds, and the provision of State funds, a disproportionate solution; the problem is that in some atypical cases, the level of funding provided under the state aid scheme does not, on the judge's findings, attract counsel of the requisite seniority.  That issue may have to be addressed when proceedings are heard, in the light of the appellant's rights under Article 6."
17.	The characterisation of these cases and cases where this is likely to arise is atypical which is something which on this application is taken issue with.  It remains atypical so far because of the extent of the generosity of counsel.  It is also the case that the Protocol now promulgated makes it much more likely that counsel may accept instructions excluding instructions to conduct any confiscation proceedings, the shape of which it is notoriously difficult to predict in advance.
18.	I refer to paragraph 24 of Lord Justice Latham's judgment where he said:
"24 In our judgment Parliament was entitled to make the choice it did, that is to conclude that it would be wrong to permit, until the determination of whether those funds were the result of criminal activity or not, such funds to be used for the purposes of providing legal representation, and that a defendant shall rely on the State instead.  That choice could only be outside the parameters of permissible decision making if it could be said the state aid was illusory.  In the case of individuals, it seems to us that the mere fact that in difficult cases such as that of this appellant, it may prove difficult to attract a barrister of appropriate standing, does not mean that Parliament was not entitled to make that choice.  As we have already said, if the result in truth does mean that the appellant, or someone in his position, cannot have a fair trial in Article 6 terms, that can be dealt with at the appropriate time."
19.	The Lord Chancellor founds himself on the proposition that an Article 6 challenge must be based on the experience of the individual who is making the challenge in the proceedings which are in question, so that here, as in the case in the Court of Appeal, it is open to Mr Chaney to alert the Crown Court judge, if he needed alerting to it, that he is unable to get representation and cannot be expected to have a fair hearing and a fair process if he is to conduct the confiscation proceedings for himself.  
20.	The possible outcome, if that argument prevails before the Crown Court judge, is what might be described as a messy one, namely the Crown Court judge may be impelled to stay the confiscation proceedings in which case no determination will take place, at least not until representation can be obtained.  That is not ‑ plainly ‑ a satisfactory outcome from anyone's point of view, certainly not from the point of view of the public in whose interest it is to have, after a proper process, assets confiscated that ought to be confiscated.  The other side of it is that if the case goes ahead and there is said to be unfairness on appeal to the  Court of Appeal, as in AP and U, the court can then consider, in the light of all the facts, whether or not to make a declaration of incompatibility.  
21.	The submission is there and it is right that the Court of Appeal case was concerned with the use of the offender's own  assets to fund his legal representation; whereas this application focuses on the Article 6 consequences of there not being adequate representation ‑ under‑remuneration.  
22.	In my judgment the point that arises from AP and U which is important in this case is that breaches of Article 6 are personal to the person who is suffering the breach, and whether there is a breach depends on all the circumstances in  his own case.  Those circumstances include the nature of the conduct of the proceedings before the Crown Court which have not yet taken place in this case.  It would be appropriate, in my judgment, for any application for incompatibility to be considered in the light of Mr Chaney saying that he has been disadvantaged and unjustly treated by the process.  That process has not yet run its course.  
23.	In my judgment a declaration in a vacuum would not be appropriate to this problem.  I reiterate, this is not a case where a separate breach of statutory duty is alleged or any other relief is asked for.  It seems to me that it is not appropriate ‑ in the light in particular of the approach of the Court of Appeal to Article 6, an Article 6 problem arising out of the remuneration provisions ‑ for this court to embark on consideration of a declaration of incompatibility.  
24.	Accordingly, the application fails.