Ensuring Access to Justice: Legal Aid, Trafficking Victims, and Article 6 in R (HJK & Ors) v Director of Legal Aid Casework

By: Reece Robertshaw

Reece is currently a criminal defence paralegal and aspiring criminal barrister, who regularly handles a diverse caseload across a wide range of offences.

Case Summary

In R (HJK & Ors) v Director of Legal Aid Casework, the Administrative Court considered the lawfulness of refusal of civil legal aid in cases connected to applications under the Criminal Injuries Compensation Scheme (CICS.) The judgement provides fundamental guidance on the correct approach to legal aid decision-making, particularly where the applicant is vulnerable and the underlying proceedings raise concerns over fairness, complexity and access to justice. For context, four victims (HJK and others) were trafficked to the UK for sexual and labour exploitation and suffered serious harm but were not informed of their right to claim compensation until after the two-year time limit expired.

The Anti-Trafficking and Labour Exploitation Unit applied for Exceptional Case Funding (‘ECF’) under the Legal Aid Sentencing and Punishment of Offenders Act 2012 to promote their respective claims. The Director of Legal Aid Casework refused ECF on the grounds that the European Convention of Human Rights (‘ECHR’), Article 6 was not engaged and argued that the statutory criteria for civil legal aid were not met. The refusal relied upon assessments that the cases lacked sufficient merit, did not justify public funding and that the cases could be pursued without legal representation. 

The Claimants challenged this refusal as a denial of access to justice and noted the Directors’ errors in assessing their rights under Articles 4, 6 and 8 of the ECHR. The Claimants established that their trauma, mental health, and language barriers made the process complex. Additionally, the Claimants argued that the Defendant erred in declaring that Articles 4 and 8 of the ECHR were not engaged. Accordingly, the responsibilities under Article 4 are crafted to ensure that access to state compensation schemes for victims of trafficking is a pivotal value of private and family life as per Article 8.

Case Analysis

The High Court began by establishing that the Claimants’ applications under the CICS concerned the determination of civil rights, thereby bringing them within the scope of the European Convention on Human Rights, Article 6. The key question for the court was whether the refusal of Exceptional Case Funding (ECF) for legal aid breached or created a real risk of breaching the Claimants’ right to a fair hearing by preventing them from participating effectively in the compensation process.

In addressing this issue, the court applied the “objective correctness” test derived from key precedent cases including, R (Gudanaviciene) v Director of Legal Aid Casework [2015] 1 WLR 2247 and R (Alhasan) v Director of Legal Aid Casework [2024] EWHC 2031 (Admin.). This required a thorough and individualised assessment of each Claimant’s situation; relevant factors included the significance of the issues at stake, the legal, procedural, and evidential complexity of the application process, and the Claimants’ capacity to represent themselves effectively. The Claimant’s mental health, personal circumstances, and language abilities were also considered. Thus, it was concluded by the court that the Claimants’ specific vulnerabilities confirmed that they were unable to effectively participate without legal representation due to past incidents of trauma, current mental health issues, limited English proficiency and lack of support, both practical and emotional. This placed the Claimants below the threshold for effective self-representation. Furthermore, the court found a foundational inconsistency in the Defendant’s approach. Despite accepting the Claimants’ individual vulnerabilities, the Defendant directly characterised the application process as being sufficiently accessible without legal assistance. This reinforces that ECF decisions must be individualised and realistic and that decision-makers are failed to assume that a set procedure is accessible simply because it is framed to be so. Vulnerability, trauma, language difficulties, and the evidential burden are central to the Article 6 analysis.

Initially, the Defendant argued that the CICS application process was simple and that online resources and telephone services were sufficient guides. The court rejected this concept, affirming that out of time applications are overtly complex, require detailed explanations and corroborative evidence. Additionally, the court emphasised that a firm understanding of technical legal concepts, such as the correct identification of the incident date, is a fundamental factor for legal representation. Moreover, the court aligned this with the notion that the application form is strictly accessible only in English and that it requires the Claimants to detail their disquieting experiences. Therefore, this task was deemed essential to ensure that legal representation was available.

Turning to ECHR, Articles 4 and 8, the court conducted a detailed analysis of relevant domestic and international authorities and held that although Article 4 asserts positive obligations on states to protect victims of trafficking, it presently does not impose a general requirement to provide state-funded compensation. The ruling in Krachunova v Bulgaria (2024) 79 EHRR 6 was interpreted as requiring states to facilitate compensation claims against traffickers, rather than imposing a duty on the state itself to compensate victims. In reference to Article 8, the court found that it was not engaged as it held that the refusal of compensation or legal aid did not significantly impact the Claimants’ private or family life. Importantly, the court drew on the provisions of R (Oji) v Director of Legal Aid Casework [2024] 4 WLR 53 to clarify their decision. 

Holding

In the final judgement on 1 April 2025, Mr Justice Calver rejected the contention that an application to CICA is simple due to the form filling exercise as per the Legal Aid Agency. It was noted that the failure to grant ECF was in breach of Article 6 – right to a fair trial. In detail, the court held that the Defendant had acted unlawfully by failing to make a proper exceptional case determination under sections 10(2)(a) and 10(3)(a)(i) of LASPO and thus resulted in a breach of the Claimants’ rights under Article 6.

Implications

The judgment illustrates the evident operational and systemic consequences in regard to access to justice. The ruling clearly highlights that legal aid is a constitutional safeguard and not merely a discretionary benefit, particularly for individuals like the Claimants. The judgment reinforces how decision-makers of legal aid must adopt an alternative approach to consider ECF applications and comply with a legal aid approach that recognises the ability to participate in legal proceedings without altering Articles 4 or 8 ECHR. However, this does indeed give prospective Claimants stronger grounds to judicially review ECF refusals, especially where Article 6 is engaged, and effective participation has not been sufficiently analysed. As such, this poses greater certainty for the Legal Aid Agency to face increased scrutiny and to incentivise more thoughtful and defensible initial-stage considerations rather than relying on corrective mechanisms at later stages.

In closing, this case sets a precedent that victims of trafficking, despite trauma, are not expected to navigate complex state compensation schemes without legal representation for effective access to justice.