Case Summary: R v Lord Chancellor (2016)

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The Civil Legal Aid (Procedure) Regulations 2012 reg.33, which specified the supporting evidence to be provided by a legal aid applicant who claimed to be the victim of domestic violence, was not ultra vires the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, it frustrated the purposes of the Act and was invalid insofar as it required that the verification of domestic violence had to be dated within a period of 24 months before a legal aid application and insofar as it made no provision for victims of financial abuse.

The appellant charity appealed against a decision ([2016] EWCA Civ 91, [2015] 2 F.L.R. 823) refusing its application for judicial review of the Civil Legal Aid (Procedure) Regulations 2012 reg.33.

Regulation 33 specified the supporting evidence which had to be provided by a legal aid applicant who claimed to be the victim of domestic violence. With certain exceptions, it provided that legal aid would not be available unless documentary proof of domestic violence was provided within a period of 24 months before the legal aid application was made.

The charity submitted that (1) in imposing reg.33, the Lord Chancellor had exceeded the powers conferred on him to make regulations by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.12; (2) alternatively, reg.33 breached the principles in Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997 because it frustrated the purpose of the Act.

HELD: (1) Section 12 of the Act had to be construed according to its terms. It made “provision about conditions which must be satisfied by an applicant before a determination is made”. A condition that a GP or other report should be provided had to be within that power. A condition that such a report had to be dated within the previous 24 months also seemed to come within that statutory wording (see paras 35-36 of judgment).

(2) It was a matter for the court to ascertain the purpose of the statute from its words. The purpose was partly to withdraw civil legal services from certain categories of case in order to save money, but also to make such services available to the great majority of persons in the most deserving categories. That would be catered for partly by the requirements of financial need and merit, as set out in s.11, but could also be catered for by requirements which the Lord Chancellor was entitled to impose under the s.12 regulation-making power, R. (on the application of Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin), [2015] 1 W.L.R. 251 applied. The House of Commons had rejected a proposed amendment to the effect that no time limit would apply to the forms of evidence that would be accepted in relation to domestic violence. However, that could not absolve the court from considering whether the Regulations, in their final form, did in fact frustrate or thwart their statutory purpose, Padfield followed. There were many situations in which victims of domestic violence found themselves involved in legal proceedings more than 24 months after incidents of domestic violence had occurred, but more than 24 months after it was practical to obtain the kind of verification required by reg.33. Examples of such cases were where: (a) the perpetrator had been in prison and brought proceedings for divorce or child contact when released; (b) a non-molestation order, or other injunction, had kept the parties apart for two years; (c) a period of separation had occurred for reasons such as a police caution or other police involvement where criminal proceedings did not result in a conviction; (d) child contact was refused, but the perpetrator of violence served a fresh application on the victim of domestic abuse after the expiry of the two-year period or the court directed, under the Children Act 1989 s.91(14), that no such proceedings should be begun until expiry of the two-year period; (e) a victim of domestic abuse brought proceedings for divorce or financial relief after 24 months had expired, when any practical ability to obtain verification had passed, because her immediate priority had been to make arrangements for her personal safety and that of her children; (f) the domestic abuse was psychological or emotional rather than physical, meaning that the verifications required by reg.33 were much harder to satisfy and there was considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; (g) the victim had suffered financial abuse and therefore would not be able to obtain any of the verifications required by reg.33 at all. Those examples provided a formidable catalogue of areas of domestic violence not reached by a statute which had a purpose of reaching such cases. The 24-month requirement had no rational connection with the statutory purpose. There was no obvious correlation between the passage of such a comparatively short period of time as 24 months and the harm to the victim of domestic violence disappearing or even significantly diminishing. Once it was accepted that part of the statutory purpose was to ensure that legal aid was available to the great majority of domestic violence victims, it was necessary to ask why so many of them were excluded by the 24-month rule. The rule operated in a completely arbitrary manner and there was no safety valve which enabled the victims of domestic violence to explain why they were unable to obtain verification of that violence less than 24 months before proceedings began. For those reasons, reg.33 frustrated the purposes of the Act and was invalid insofar as it imposed a requirement that the verification of the domestic violence had to be dated within a period of 24 months before the application and insofar as it made no provision for victims of financial abuse (paras 37, 41, 43-51).

Appeal allowed

Courtesy of Lawtel.

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