The claimant was an Indian national who was trafficked into the United Kingdom by an Indian couple, for whom she was forced to work in conditions of servitude. She later brought proceedings against the couple in the employment tribunal for which she was granted exceptional case funding by the Legal Aid Agency. The claim was successful and resulted in a substantial award of damages but, owing to delays by the County Court in dealing with an application by the claimant’s solicitor, the couple dissipated their assets before a charge could be obtained over them. The total sum ultimately recovered by the claimant was a fraction of that awarded and, once the Legal Aid Agency had exercised its statutory charge under section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to recover the cost of the legal aid provided to the claimant, she was left with nothing. The claimant sought judicial review challenging the decision to exercise the charge on the grounds that it breached her human rights under articles 4, 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and article 1 of the First Protocol thereto, and was unlawful by reference to the article 47 of the Charter of Fundamental Rights of the European Union and article 11 of Parliament and Council Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. She relied on regulation 5(1)(d) of the Civil Legal Aid (Statutory Charge) Regulations 2013, made pursuant to section 25(3) of the 2012 Act, in so far as it excepted from the statutory charge any sum, payment or benefit which, by virtue of any provision of, or made under, an Act of Parliament could not be assigned or charged, and she identified as the relevant Acts for that purpose the Human Rights Act 1998 and the European Communities Act 1972, incorporating the Human Rights Convention and the Charter into English law. In relation to article 4 of the Human Rights Convention, she submitted that, by reference to article 15(4) of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”), that article did not simply impose an obligation to protect people from trafficking and servitude but also required such victims to be compensated.
On the claim—
Held, claim dismissed. (1) Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms served to ensure that an individual had proper access to justice but did not guarantee that an individual would recover his award of damages. The aim of the statutory charge under section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, namely to place the legally-aided litigant in the same position as the litigant who did not have the benefit of public funds but who was able to fund the litigation from his own resources, was by definition consistent with article 6 and proper access to justice and, in so far as it interfered with access to justice, was proportionate. Nor did the right to an effective remedy and to a fair trial under article 47 of the Charter of Fundamental Rights of the European Union require the legal system of the state in question to ensure that the individual litigant received any award made by the tribunal. The statutory charge did not interfere with the claimant’s access to justice in the present case. The eventual result, by which the claimant did not recover any of the damages awarded to her, came about not because of the statutory charge but because the couple for whom she had worked had cynically disposed of their assets after the tribunal decision had been taken and because the proper steps taken by her solicitor to enforce the judgment had failed as a result of delays in the County Court (paras 31, 32, 59).
(2) Article 15(4) of the Convention on Action against Trafficking in Human Beings did not impose an unconditional requirement for the state to compensate victims of trafficking. A state was to apply the requirement “in accordance with the conditions under its internal law”. The internal law in the UK included the civil remedies open to a victim of trafficking, the provision of legal assistance and the means to enforce any judgment obtained, which provided the guarantee in terms of civil process required by ECAT. The statutory charge did not undermine the practical and effective protection of the rights of victims of trafficking. Taking those matters into account, the statutory charge did not violate article 4 of the Human Rights Convention when applied to the claimant’s case. The claimant was not guaranteed the sums she was awarded by the employment tribunal (paras 40, 42, 43).
(3) The operation of the statutory charge did not breach the right to peaceful enjoyment of possessions under article 1 of the First Protocol to the Human Rights Convention. The funding that the claimant received amounted to a loan, not a grant. The sums recovered were paid in accordance with the terms of the grant of legal aid to the providers of the services to the claimant, and, even if the award could be said to fall within article 1 of the First Protocol, the action of the state in enforcing the repayment of the loan due did not amount to a deprivation of property in the sense envisaged by the article. In any event, the application of the statutory charge was proportionate (para 45).
(4) The exercise of the statutory charge did not involve discrimination contrary to article 14 of the Human Rights Convention read with article 4. While being a victim of trafficking was an “other status” for the purpose of article 14, proportionality did not require such victims to treated differently in terms of the application of the statutory charge. The potential of the statutory charge to be of greater impact on legally-aided individuals whose cases were difficult and complex, and in consequence to involve greater expenditure by the provider in prosecuting their claims, applied not only to victims of trafficking but also to others with exceptional case funding. The statutory charge did not have a disproportionate effect on victims of trafficking in particular (paras 49, 50, 56).
(5) The statutory charge was not unlawful by reference to article 12 of Directive 2011/36/EU. Article 12 allowed for the involvement of victims in criminal proceedings. It was not concerned with a civil claim for damages. In any event, in so far as article 12(2) required legal representation to be free of charge where the victim did not have sufficient financial resources, that did not mean that legal costs could not be recouped after the event if there was recovery sufficient to cover some or part of those costs (paras 60, 61, 62).
Peter Oldham QC, Zac Sammour and Jen Coyne (instructed by Solicitor, Anti-Trafficking and Labour Exploitation Unit) for the claimant.
Martin Chamberlain QC and Malcolm Birdling (instructed by Treasury Solicitor) for the defendants, the Director of Legal Aid Casework and the Lord Chancellor.