PSPOs and legal aid

Liberty has failed to secure legal aid for a challenge to a public spaces protection order. Kuljit Bhogal explains why.

Liberty's challenge to the refusal of legal aid in order to bring a s.66 challenge to a Public Spaces Protection Order (PSPO) has failed.

What are the consequences of this decision?

A party that wishes to bring a High Court challenge to a PSPO will not be able to apply for legal aid to fund that challenge unless they can show a "real, direct and material benefit" to themselves or a member of their family. In addition, they would have to show that the challenge was within the definition of a "judicial review" found in the funding provisions relating to legal aid.

The decision should mean a reduced risk of a High Court challenge to a PSPO but the court has left the door open for litigants who are able to show a "real benefit" to themselves or a member of their family.

The judgment does not affect the use of crowd-funding or litigation being funded by interest groups, an emerging trend in this area.

The case in a nutshell

Yesterday, Murray J dismissed Liberty's attempt to secure legal aid on behalf of Sarah Ward so that she could pursue a challenge to a PSPO made by the Borough of Poole.

Poole's PSPO which came into effect on 16 April 2018 includes a prohibition on begging, leaving unattended personal belongings such as bedding or bags in a designated area or causing an obstruction in a doorway to commercial premises, public buildings, car parks or other public areas. Ms Ward approached Liberty for assistance in challenging the PSPO due to negative impact on the homeless and rough sleepers.

The Director of Legal Aid Casework refused Ms Ward's application for legal aid. Liberty issued an application to seek judicial review against that refusal which has now been dismissed. Further details of the test for making a PSPO is can be found here.

What did the Judge decide?

The key issue for Murray J was whether Ms Ward's application was within the scope of civil legal aid. There were two limbs to the scope issue which required the Judge to look at the detailed provisions of the Legal Aid Sentencing and Punishment of Offenders Act 2012 ('LASPO') and the consultation that led to its enactment:

1. Whether the section 66 challenge was a "judicial review" within the meaning given to that term in para 19(10) of Part 1 of Schedule 1 to LASPO
2. Whether the proposed proceedings had the potential to produce a "benefit" for Ms Ward within the meaning given to that term in para 19(3) of Part 1 of Schedule 1 to LASPO.

LASPO created a shift from all civil legal aid cases being covered unless specifically excluded, to all civil legal cases being outside the scope of legal aid unless specifically included.

Judicial review cases are, in principle, within the scope of para 19 of Part 1 of Schedule 1 to LASPO. However, the inclusion of judicial review does not include a "judicial review that does not have the potential to produce a benefit for the individual, a member of the individual's family or the environment". The issue for the Judge was whether Ms Ward's claim had the potential to produce a benefit for her.

Ms Ward has argued that although she was not currently homeless, she was a single mother of three children dependent on state benefits and two of her children had disabilities. As recently as 2017 she had been threatened with homelessness and if her section 66 challenge was successful, she would have removed the risk to her and her family. Ms Ward also relied on her experience working in homelessness services in Poole for a number of years and considered the criminalisation of the homeless unlawful, misguided and contrary to the interest of local residents of which she was one.

Murray J held:

1. the potential to produce a benefit for an individual or a member of their family was a mixed question of fact and law [43].
2. that the ordinary meaning of the word "benefit" was a broad one and that it was not necessary for the Director or the court to consider the quality of the benefit but that the benefit must be of substance, it must be real, direct and material for the individual or a member of her family [44-45].
3. the elimination of the hypothetical risk that Ms Ward might find herself homeless was not sufficient to constitute a benefit in the sense required by para 19(3) [47]
4. her experience of working in homelessness services and desire to avoid the criminalisation of the homeless was also an insufficient benefit as it was not sufficiently direct, personal and material to Ms Ward or a member of her family to constitute the sort of benefit that would distinguish the section 66 challenge from what is, in essence, a representative action [53].

In view of his conclusion, the Judge decided it was not necessary for him to decide whether the section 66 challenge fell within the definition of "judicial review" for legal aid purposes.

The challenge was dismissed.

Kuljit Bhogal is a barrister at Cornerstone Barristers. She has advised numerous local authorities on investigation, consultation, drafting and decision-making related to PSPOs. She is the author of Cornerstone on Anti-Social Behaviour, second edition published by Bloomsbury in May 2019.