High Court rejects challenge over refusal of legal aid for bid to quash PSPO prohibitions

A High Court judge has rejected a judicial review challenge brought by human rights group Liberty over the refusal to grant civil legal aid for the pursuit of an application to quash prohibitions contained in a public spaces protection order (PSPO).

The case of Liberty, R (On the Application Of) v Director of Legal Aid Casework [2019] EWHC 1532 concerned the decision of the Director of Legal Aid Casework to refuse Sarah Ward, a local resident, legal aid to challenge a PSPO made by the Borough of Poole on 13 March 2018 under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014.

Ms Ward is seeking to challenge the validity of the PSPO under section 66 of the 2014 Act on the basis that the PSPO unlawfully targets rough sleepers and therefore Poole did not have the power to make it.

The Director of Legal Aid Casework refused her application for legal aid on the basis that:

i) legal services to support the Section 66 Challenge were not "civil legal services" described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and

ii) the application did not meet the merits criteria set out in the Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.

In his Summary Grounds for Contesting the Claim, the Director indicated that he did not rely on the second of the two bases set out above.

The judge, Mr Justice Murray, therefore only needed to consider whether the Director was right to refuse on the first basis, which was, in essence, whether the application was within scope of civil legal aid.

The judge said the two issues in the case could be stated as follows:

i) Does section 66 of the 2014 Act require the court to make a decision applying the principles that are applied by the court on an application for judicial review?

ii) Does the Section 66 Challenge have the potential to produce a "benefit" for Ms Ward within the meaning of para 19(3) of Part 1 of Schedule 1 to LASPO?

Rejecting the challenge, Mr Justice Murray said: “Neither Ms Ward's status as a resident of Poole nor her longstanding professional and personal involvement in the issue of homelessness is sufficient in my view to mean that the Section 66 Challenge would have the potential to produce a benefit to Ms Ward or a member of her family in the sense required by para 19(3).

“On the facts of this case, what Ms Ward is seeking to do is to bring a representative action. Her status as a resident gives her the standing to bring a Section 66 Challenge against the PSPO. But civil legal aid for a representative action is now excluded by para 19(3) of Part 1 of Schedule 1.

“Accordingly, in making the Decision the Director was not wrong to the extent that he relied on the ground that the Section 66 Challenge did not have the potential to produce a benefit for Ms Ward or a member of her family in the sense required by para 19(3), and therefore this ground of the claim does not succeed.”

The judge said that in view of his conclusion on the question of "benefit" to Ms Ward of the Section 66 Challenge, it was not necessary for him to decide whether the Section 66 Challenge fell within the definition of "judicial review".

Liberty has been approached for comment.