Shortly after the previous post about legal aid in committal proceedings the decision in Watson -v- Holman  EW Misc B5 was placed on Bailli. The case involved committal applications for failure to comply with an order to remove a wall. However the words of the Her Honour Judge Downey are instructive.
The defendants appeared in person today. Unfortunately they have been unable to secure legal representation. They accepted they had not complied with the order in the terms, because (I paraphrase) they say that to remove the wall as required would cause more damage, by causing damage to their own garage, consequential damage to the claimant’s garage at No 18, and to the garden wall at No 18, and that the task could not be done safely. In other words, they say that it is unreasonable to expect them to comply with this order as drawn.
There are two preliminary points which I was asked to deal with. The first was that the application should not proceed because of the absence of legal representation. Unfortunately, the defendants are not eligible for legal aid, as a result of the change in the legal aid provisions. I, and many others involved in the court system, consider it unacceptable that defendants find themselves unrepresented in quasi criminal proceedings, where their liberty is at stake, but that is the position. When the case came before me on 13 November, I accepted, as had His Honour Judge Ellis previously, that every effort should be made to secure help for the defendants via the Bar Pro Bono Unit, and indeed the claimant conceded that every effort should be made. So in the intervening two months, a referral was made to the Bar Pro Bono Unit, and indeed they did accept the referral, and I understand that Mr and Mrs Holman had some advice from a barrister via the Bar Pro Bono Unit, including a conference and some general advice. Indeed, the barrister in question made contact with the claimant’s instructing solicitors. But unfortunately the barrister in question had to pull out yesterday, for reasons we do not know about, and a replacement could not be found (understandably at such short notice). Mr and Mrs Holman did not today seek an adjournment, but Mrs Holman in her evidence expressed her unhappiness at having to proceed unrepresented. I had indicated on the last occasion that the case should proceed today, even without legal representation, given the delay and the passage of time since the original order was made. It seemed to me that a careful balance had to be struck.
I have reminded myself today of the case of Brown v London Borough of Haringey , where the court concluded that in cases of committal strenuous steps should be taken to consider issues of representation and to try to secure legal representation for defendants, but in this case, given that it is now over 3 years since the original order was made, I am satisfied that, as unsatisfactory as it is, it was proper to proceed today, given that there was no reasonable prospect of securing legal representation for the defendants in any reasonable timeframe for any replacement counsel. In serving, we have been given no timeframe for the Bar Pro Bono Unit. In the end, Mr and Mrs Holman have represented themselves and have done so eloquently and carefully.
REPRESENTATION AT CIVIL CONTEMPT PROCEEDINGS: A REAL PROBLEM
There were some helpful comments made in response to the previous post. However given the risks in civil contempt proceedings it is a pity that the situation is not more clear.