Legal aid contributions decision to face judicial review

The Court of Appeal has granted permission for a judicial review of a Legal Aid Agency decision on capital contributions, urging ‘meaningful negotiations’ between the parties to prevent further costs being incurred for the relatively small sums at stake.

The judgment, Cleland v Lord Chancellor, states that Martin Cleland was granted legal aid in June 2011 after facing prosecution for being part of a conspiracy to evade duty on cigarettes.

Cleland was convicted in February 2012 following a six-week trial, and sentenced to four years and six months in prison. He was released on licence in May 2014.

Criminal Defence Service (Contribution Orders) Regulations 2009 state that those undergoing criminal prosecutions are means-tested to ascertain whether and how much they would be required to contribute towards their defence costs. Those who are convicted could be ordered to pay for their defence costs out of their capital.

Cleland’s wife, who argued on her husband’s behalf in the Court of Appeal, submitted that two separate sums should not have been taken into account in the agency’s final capital contribution order.

Mrs Cleland, whose own capital counted as part of her husband’s assets, said that £18,000 had been frozen by HM Revenue and Customs at the time legal aid was sought and that £11,000 in compensation for a road accident suffered by her husband had not then been received.

Mrs Cleland was made redundant in 2011. She said it was inevitable that the capital available to the couple would be used for ordinary living expenses.

The agency argued that it was not unreasonable to include those amounts.

Lord Justice Longmore (pictured) concluded that the case should be allowed to proceed to the administrative court.

He said the ‘utility’ of the appeal before him ‘is to clear the ground so that the administrative court can distinguish the wood from the trees in a case which has generated lengthy correspondence some of which is irrelevant and concentrate on the genuine issues between the parties’.

Allowing Cleland’s appeal, Longmore said: ‘Although Mr and Mrs Cleland should not be over-optimistic about the outcome, I would urge that both they and the LAA engage in meaningful negotiations in order to prevent yet further costs being incurred in a case where relatively small sums appear to be at stake.’

Longmore praised Cleland’s wife for arguing the case on behalf of herself and her husband ‘in a well-ordered and impressive presentation’.