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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C v Home Office & Anor  EWCA Civ 234 (03 March 2004)
Cite as:  EWCA Civ 234
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE SEDLEY
|- and -
|THE HOME OFFICE and
THE CRIMINAL INJURIES COMPENSATION AUTHORITY
Jonathan Crow and Ruth Downing (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 11 February 2004
Crown Copyright ©
Lord Justice Sedley :
It will be for the applicant to make out his case…. Where an applicant is represented, the costs of representation will not be met by the Authority.
A claims officer may make such directions and arrangements for the conduct of an application, including the imposition of conditions, as he considers appropriate in all the circumstances. The standard of proof to be applied by a claims officer in all matters before him will be the balance of probabilities.
Where a claims officer considers that an examination of the injury is required before a decision can be reached, the Authority will make arrangements for such an examination by a duly qualified medical practitioner. Reasonable expenses incurred by the applicant in that connection will be met by the Authority.
Once that agreement is reached, the Authority will take the instructions of the applicant or his representative as to which annuity or annuities should be purchased. Any expenses incurred will be met from the award.
It will be open to the appellant to bring a friend or legal adviser to assist in presenting his case at the hearing, but the costs of representation will not be met by the Authority or the Panel. The adjudicators may, however, direct the Panel to meet reasonable expenses incurred by the appellant and any person who attends to give evidence at the hearing.
(a) what is involved in "making out" a claim for the purposes of paragraph 18;
(b) how much discretion a claims officer possesses in deciding whether a medical examination is required.
Right to a fair trial
1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Right to respect for private and family life
1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
Protection of propertyEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The decision of Mitting J
"Financial planning seems to me to be a significant aspect of family life."
This passage, in its larger context, was cited by the European Court of Human Rights when the case reached it: Willis v United Kingdom (2002) 28 EHRR CD 166, but in the event the article 8 point did not fall for decision by the Court. It was an entirely relevant remark in relation to the issue before Moses J, which was whether widows' payment and widows' pension in the social security system should be available to widowers. But it cannot be generalised into a proposition of law, much less an exegesis of article 8. To the ant, no doubt, private and family life without planning is unthinkable; but the world contains plenty of grasshoppers, and I see no reason to let article 8 become the possession of the ants. Nor, in any event, do I accept that the need to incur legal costs and pay them out of the award does more than require the plans for C to be modified.
Article 1 of the First Protocol
24. The Government contend that the application does enjoy access to the High Court since she is free to go before that court without the assistance of a lawyer.
The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective….
It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.
…. litigation of this kind, in addition to involving complicated points of law, necessitates proof of adultery, unnatural practices or, as in the present case, cruelty; to establish the fact expert evidence may have to be tendered and witnesses may have to be found, called and examined. What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.
For these reasons, the Court considers it most improbable that a person in Mrs. Airey's position (see paragraph 8 above) can effectively present his or her own case. This view is corroborated the Government's replies to the questions put by the Court, replies which reveal that in each of the 255 judicial separation proceedings initiated in Ireland in the period from January 1972 to December 1978 without exception, the petitioner was represented by a lawyer (see paragraph 11 above).
The Court concludes from the foregoing that the possibility to appear in person before the High Court does not provide the applicant with effective right of access and, hence, that it also does not constitute a domestic remedy whose use is demanded by Article 26 (art. 26) (see paragraph 19 (b) above).
The conclusion appearing at the end of the paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a "civil right".
To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6 para. 3 (c) (art. 6-3-c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6 para. (art. 6-1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as it done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.
Lord Justice Clarke:
Dame Elizabeth Butler-Sloss P.: