A respondent to an application in the High Court to commit him to prison for contempt of court, on the grounds of failure to comply with an order, is entitled to legal aid as of right, without any assessment of his means or whether it is in the interests of justice for representation to be provided. Since the proceedings involve the determination of a criminal charge for the purposes of article 6(1) Convention for the Protection of Human Rights and Fundamental Freedoms, they are “criminal proceedings” for the purposes of section 14(h) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, by virtue of regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 (“the General Regulations”). Accordingly, pursuant to section 16(1) of the 2012 Act criminal legal aid is available if the means tests and “interests of justice” test are met, both tests being met automatically in relation to criminal proceedings before the High Court by virtue of regulation 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 in relation to means and regulation 21 of the General Regulations in relation to the interests of justice. However, even in a case where the applicant qualifies for legal aid as of right, being a “specified person” for the purposes of section 16(1)(a) of the 2012 Act, there must still be a determination by the “relevant authority” pursuant to section 16(1)(b) that the individual qualifies for legal aid before he can obtain it. The relevant authority for that purpose is the Director of Legal Aid Casework, not the court. The 2012 Act specifically contemplates applications for criminal legal aid where the relevant authority is the Director. As regards the High Court, the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 confer power on the court to make such an order in the types of proceedings mentioned in regulation 7 and no others, with contempt proceedings, other than for contempt in the face of the court, not being covered by that regulation. Accordingly, applications for legal aid in such proceedings should be made to the Director. That should have no practical effect on the availability of legal aid because the Legal Aid Agency has an established procedure for determining applications expeditiously in cases of that sort. Litigants and providers of legal services should use that procedure rather than applying to the High Court for representation orders (paras 1, 12, 14, 26–29).

Where, therefore, on an application in the High Court to commit the defendant to prison for breach of an order of the court the judge invited submissions on the issue whether the court had power to make a representation order under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013—