Khan v Director of Legal Aid Casework [2018] EWHC 3198 (Admin)
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Khan v Director of Legal Aid Casework [2018] EWHC 3198 (Admin) concerned a challenge by judicial review to a capital contribution order made under the Criminal Legal Aid (Contribution Orders) Regulations 2013 in which the Administrative Court, Mr Justice Ouseley sitting, dismissed the claim.
The claimant had been granted a representation order in 2015 for Crown Court proceedings. He was charged with conspiracy to launder money contrary to section 1 of the Criminal Law Act 1977. A further count of perverting the course of justice at common law was added to the indictment by agreement after the first week of trial. The claimant pleaded guilty to perverting the course of justice on 11 October 2016 and was acquitted of money laundering. He was sentenced on 23 June 2017. On 28 December 2017 the Director of Legal Aid Casework made a capital contribution order against the claimant in the sum of £103,484.53 under regulation 29 of the 2013 Regulations. Enforcement proceedings followed, culminating in a charging order over the claimant’s property. The claimant then sought judicial review of the Director’s decision.
The central issue was whether the Director, when making a determination under regulation 29, had power to take into account the fact that the claimant had been acquitted of money laundering. The claimant submitted that the Director could and should have done so, given that the money laundering defence accounted for almost all of the costs the subject of the capital contribution order. The Director argued that the Regulations on their true construction prevented him from taking account of the acquittal or any matter other than those set out in regulation 29 itself, and that if the claimant had wished to apply for apportionment of costs as between the count on which he was convicted and the count on which he was acquitted, the only procedure available was to apply to the Crown Court under regulation 26. The claimant had not made such an application.
Mr Bowers QC appeared for the claimant and Mr McLoughlin for the Director. Mr Bowers submitted that the language of regulation 29, which requires the Director to make a determination, necessarily imports a discretion as to how that determination is to be made and what factors the Director is enabled to consider. He submitted that the Director was permitted to take into account the relationship between costs incurred in proceedings where a defendant was acquitted and where he was also convicted. Mr Bowers argued that otherwise a represented person would be paying for his own defence in proceedings in which he had been acquitted, contrary to the purpose of the 2012 Act and the Regulations. He invited the court to read down the provision under section 3 of the Human Rights Act 1998 if necessary, and argued that failure to do so would amount to an interference with property rights under Article 1 of the First Protocol to the Convention. He further submitted that the alternative approach would force large numbers of legally aided defendants to make applications to the Crown Court which would scarcely welcome them.
Mr Justice Ouseley began his analysis with the language of regulation 29 itself. The obligation is to make a determination that the individual is liable to make a payment of an amount calculated in a particular way. The judge held that the language of making a determination that an individual is liable was wholly inapt to import a discretion such that the Director may make no determination or determine liability to make some other payment. He found that regulation 29 provides no reference to any factors to be taken into account for the exercise of any such discretion, contains no basis upon which it can be related to regulation 26, and does not contain the words “manifestly unreasonable” which would guide the Crown Court. Mr Bowers’ approach would create a conflict between regulations 29 and 26, suggesting a choice of procedure where none was intended.
The court emphasised that the definition of “recoverable costs of representation” in regulation 2 makes clear that where regulation 26 applies (cases involving conviction on some counts but acquittal on others), it is the proportion specified by the court’s order under that regulation which is recoverable. This explains why there is no specific reference in regulation 29 to the interaction with regulation 26: the interaction is made clear in the definition regulation. The use in regulation 29 of the defined term “the recoverable costs of representation” imports the relationship to regulation 26 such that where there has been an apportionment by the Crown Court, it is that apportionment which forms the basis for recovery.
Mr Justice Ouseley held that it would have been an extraordinary provision for there to be two provisions capable of covering the same territory, one which spells out how apportionment is to be done and the other which is entirely silent both as to how it is to be done and as to its relationship to the earlier specific provision. He rejected the contention that there was any potential Human Rights Act argument, noting that regulation 26 itself enables the apportionment of costs as between offences where there was an acquittal and offences where there was a conviction. He also observed that both regulations 25 and 26 require some understanding of how the trial was conducted and how much time was spent on what aspect, matters which are best dealt with by the trial judge who would be in a position to arrive at a rather more informed view than the Director.
On Mr Bowers’ arguments about convenience, the judge found considerable advantage in apportionment exercises being carried out if possible by the judge who heard the case. Mr McLoughlin informed the court on instructions that only thirty to fifty applications were made under regulation 26 in the previous year. The judge suggested that partially successful defendants might see no real point in making such applications because they can see how the costs would be apportioned, or that they are not concerned as they face substantial confiscation orders, or that the sort of problem faced in this case is comparatively unusual. He noted that the relevant provisions are set out in the Criminal Costs Practice Direction and in the Crown Court Index 2018 by His Honour Judge Lucraft QC.
The judge concluded that the Regulations work fairly without any words being read into regulation 29, provided that the relevant applications are made in time. That appeared not to have happened in this case and it was now too late. Regulation 29 does not permit a second bite at the cherry or rather a first bite at a cherry that ought to have been consumed already. In short, the Director has no power under regulation 29 to apportion costs as between counts resulting in conviction and acquittal; that function is reserved exclusively to the Crown Court under regulation 26, and the claimant’s failure to apply in time under that provision was fatal to his claim.