Court finds that the failure to grant legal aid for CICA claim is a breach of right to a fair hearing
R(HJK & Ors) v Director of Legal Aid Casework (CICA intervening) [2025] EWHC 774 (Admin)
The High Court has found that the denial of legal aid to four victims of trafficking breached their rights under Article 6 of the European Convention of Human Rights (ECHR).
The four women applied for Exceptional Case Funding from the Legal Aid Agency to access legal advice on seeking compensation from the Criminal Injuries Compensation Authority (CICA). Each had their application for legal aid refused.
This case involved four women who had been trafficked to the UK for the purpose of sexual exploitation. Each of them suffered mental injury as a result of their trafficking experiences and still deal daily with the impact of the trauma they suffered. The women wished to apply to CICA because bringing a claim directly against their trafficker was not possible.
Each woman is applying to CICA outside of the usual two-year time limit and so will have to explain what exceptional circumstances have stopped them from applying earlier. They will also have to provide all information necessary for the application to be dealt with without further ‘extensive enquiry’ on the part of CICA.
Because CICA will often take the beginning of the trafficking experience as the date limitation runs from, it is not uncommon for many victims of trafficking to still be under the control of their trafficker at the date limitation expires. For many survivors, they need a significant period of recovery before being able to consider and seek advice about options for compensation.
Applications to CICA are not ordinarily covered by legal aid so an application for Exceptional Case Funding (ECF) was prepared on behalf of each woman, explaining that in the absence of legal advice and assistance, the language barriers, mental disability and trauma suffered, were such that they would not be able to make an application to CICA without legal advice.
To submit a meaningful application they would need to provide detailed information about the injury they sustained, details of how the injury occurred and the impact on their daily life. Where the injury suffered arises from human trafficking and sexual exploitation, the process of providing information and explaining how this meets with the CICA scheme rules can be complex.
Each ECF application set out the specific barriers they would face in trying to make an application to CICA without legal advice and assistance. The Claimants relied on Articles 4,6 and 8 ECHR in asserting that they were entitled to ECF.
Each application was refused on the basis that an application to CICA simply required them to complete an application form with a series of YES/NO questions. When provided with evidence that the CICA application process was far more complex than a series of basic questions, the Legal Aid Agency still refused funding. As a result, the women sought permission for Judicial Review which was granted in August 2024.
Following a hearing before Mr Justice Calver on 5-6 March 2025, the Court quashed the Legal Aid Agency’s decision to refuse ECF. The Court noted that the women would not be able to present their case effectively and without obvious unfairness as a result of the denial of ECF. The Court noted that the existence of a telephone line through which an application could be made to CICA and the availability of an online guide did little to remove the need for legal assistance, as even if they were able to access CICA by telephone and make arrangements for an interpreter, the women would undoubtedly struggle to disclose difficult and sensitive information to an unknown call handler.
The Court firmly rejected the contention made by the Legal Aid Agency, that an application to CICA is a straightforward form filling process. The Court found that the failure to grant ECF was in breach of the women’s Article 6 right to a fair hearing.
This judgment is significant because it confirms that mental injury,trauma, language barriers and lack of support are all factors that mean that the CICA scheme cannot be accessed without legal advice and assistance.
In practice, this means that where an application for ECF provides details of these specific barriers, for an unrepresented individual wishing to apply to CICA, a refusal of funding might amount to an Article 6 breach..
If you are making an application for ECF to pursue an application to CICA and would like to discuss this further, you can contact us at advice@atleu.org.uk