Kesar & Co may challenge the LAA’s refusal to fund a high-profile case

Kesar & Co Solicitors are currently preparing an application for Judicial Review against the Legal Aid Agency (“LAA”) on behalf of one of the highest-profile prisoners in the world. The challenge arises out of the LAA’s repeated refusal to fund meritorious legal action in respect of the Claimant’s treatment in custody and its persistent failure to determine his applications, reviews and appeals within any reasonable timeframe. At its heart, the case is a test of whether ‘access to justice’ exists, or whether it is merely a myth. The question begs whether even those accused or convicted of the most serious crimes are entitled to a meaningful opportunity to test the lawfulness of their treatment, or whether administrative scepticism and potentially, political discomfort, can quietly close the door.

The Claimant is an elderly foreign national prisoner wholly dependent on public funding if he is to vindicate his rights. He has no realistic private means of funding, neither complex public law and nor civil proceedings from custody. Over a period of years, we have submitted four separate applications to the LAA seeking funding to bring challenges in the fields of public law and civil liberties.

Each application has been carefully prepared, supported by detailed legal analysis and, in one instance, by positive specialist counsel’s advice with an estimated case value of £50,000. All four have now been refused.

Taken together, the refusals form a pattern of repeated delay, perfunctory reasoning and a form of blanket refusal which, in our view, can properly be characterised as an ongoing and systemic failure. The Judicial Review may likely invite the Administrative Court to review not only the most recent decision, but the chronology as a whole: four applications; four refusals; months and in some cases more than a year of unjustified delay; and a striking unwillingness to engage with the substance of learned Counsel’s advice on the merits, or the public interest in judicial scrutiny of what appears to be highly restrictive regime.

The challenges for which funding is sought

The proposed challenges for which funding has been sought are not trivial. They concern restrictions and alleged neglect that go to the core of human dignity and effective participation in proceedings. They include:

(i) restrictions on communication with non-English-speaking family members in his native language;

(i) restrictions on the number of people he is permitted to have authorised as contacts;

(i) restrictions on access to Serbian media and to an A2DE laptop;

(i) restrictions on publication of written work unrelated to his offences; and

(i) neglect leading to a deterioration in his physical and mental health.

These are not extravagant demands for special treatment. They are issues which, in any other context, would immediately be recognised as raising serious questions under Articles 3, 5, 6, 8 and 10 of the European Convention on Human Rights, and under domestic public law principles of rationality, proportionality and procedural fairness.

The LAA has, however, either failed to decide these funding applications within a reasonable period or, when finally pressed into making decisions, dismissed them on the basis that prospects are “poor”. That conclusion has been reached without external advice and with reasoning that pays scant regard to the detailed merits analysis already provided.

Delay as a freestanding ground of challenge.

The delay element is stark and may form a freestanding ground in the proposed claim.

The first application was left outstanding for around four months before being refused.

The second was left undecided for around four months, the subsequent review then sat for a further five months, and the appeal remained outstanding for approximately 234 days by the time a pre-action letter was sent on 14 October 2025.

The third application has been in limbo for some four months, with no panel date yet scheduled.

The fourth application, concerning neglect and deteriorating health, was simply not progressed at all for eight months. Only after the pre-action protocol (“PAP”) letter was sent did the LAA meaningfully engage with it; indeed, the LAA has effectively accepted that no decision at all was made during that eight-month period.

The Judicial Review may characterise this repeated conduct as systemic and unlawful delay. The LAA is under a public law duty to act within a reasonable time, particularly where delay risks rendering any eventual proceedings otiose. In the context of legal aid, there is a duty of expedition: decisions about funding are the gateway to the court. Leaving an elderly prisoner’s applications undecided for eight months, or allowing an appeal to languish for 234 days, while his health deteriorates and time passes, is not compatible with that duty.

This delay ground finds itself interconnected with Article 6 ECHR. Effective access to the courts is not merely theoretical. If the state’s gatekeeping mechanism (public funding) is administered with such delay, to the effect that arguable claims cannot be pursued in a timely fashion, or applications for Judicial Review cannot be brought within the time limits prescribed under CPR 54.5, the right to a fair hearing is undermined in practice.

Here, we are dealing with an ageing foreign national prisoner whose life and health are finite resources. The cumulative effect of repeated, protracted delays is that he has, in reality, been deprived of any meaningful opportunity to bring proceedings regarding his treatment during a period when those proceedings mattered most.

Merits assessments that fail to engage with the merits

The second limb of the proposed challenge concerns the lawfulness and rationality of the LAA’s merits assessments.

In all four applications the LAA has, in substance, reached for the same conclusion: that prospects of success are “poor”. It has done so despite positive merits assessments from experienced public law practitioners, and despite the recognised seriousness of the underlying issues. It has done so without taking any external legal advice of its own, and it has done so utilising reasoning which suggests that what is really driving the decisions is a broad instinctive deference to the restrictive regime, rather than any structured engagement with the applicable legal tests.

In December 2024, the LAA had dismissed the Claimant’s application on the basis that the Claimant is an “atypical prisoner” whose family are affected by UN sanctions, and then concluded in broad terms that the restrictions complained of are “not surprising and appear to be a reasonable and proportionate measure”.

The decision appeared to import extraneous and prejudicial factors, the sanctions of family members, into a funding assessment. The Claimant was characterised as “atypical” in a way that implicitly treats his profile and international controversy as reasons to be sceptical of his claim. It substitutes the nebulous standard of “not surprising” for the question the LAA is actually required to ask: whether the proposed proceedings have an arguable prospect of success applying the statutory merits criteria and the LAA’s own guidance.

There was no attempt in the decision to engage with the specific grounds advanced by the Claimant’s representatives: no analysis of whether restrictions on foreign-language communication might be disproportionate, no assessment of whether the limitations on publication of non-offence-related works are compatible with Article 10, and no discussion of whether health-related neglect may cross Article 3 or 8 thresholds.

There was no attempt to explain why independent counsel’s positive opinion was said to be incorrect. Instead, the LAA offered a generalised reassurance that in light of who this prisoner is, and in light of UN sanctions, the restrictions “appeared” reasonable.

The chronology demonstrates that the LAA has, in the past, misdirected itself as to the test, has failed to ask the right questions, and has given weight to irrelevant considerations.

It has failed to engage with plainly relevant factors: the Claimant’s age and frailty, his complete dependence on legal aid, the seriousness of the alleged interferences with correspondence, family life, expression and health, the public interest, and the existence of favourable advice from Counsel. It has instead taken into account matters which are, at best, tangential (UN sanctions applying to others) and, at worst, prejudicial (his “atypical” status).

If the LAA is entitled to say, in effect, “you are the wrong sort of prisoner; restrictions on you are unsurprising; therefore your claim has poor prospects”, then the legal aid scheme ceases to function as a neutral gateway and begins to operate as an instrument of political and reputational triage. That is not what Parliament intended.

A repeated pattern of lengthy delays, perfunctory refusals, and a refusal to fund any challenge brought by this particular prisoner, regardless of the subject matter, is understandably highly concerning.

The fourth application, which concerns neglect and a worsening health picture, illustrates this most starkly. For eight months, the application attracted no substantive engagement at all. Only when a detailed pre action letter was sent did the LAA begin to contemplate its decision.

The LAA’s own correspondence now effectively concedes that the matter simply sat untouched. In the meantime, the Claimant’s health and circumstances were deteriorating. If that is how the system operates for a prisoner whose case value has been estimated in the tens of thousands, one is entitled to ask how many less visible applicants experience similar silent refusals through delay.

The judicial review may contend that, taken together, the delays and refusals amount to a systemic failure to operate the legal aid scheme lawfully in this case. The LAA has not simply made a series of robust merits decisions, yet it has failed to effect its decision making powers and discretion within an appropriate timeframe, failed to follow its own guidance, failed to engage with the substance of the arguments put to it and failed to accord any weight to the wider public interest in the issues raised. That is gravely concerning conduct from a body entrusted to administer public funds in the interests of justice.

The outcome of this case affects beyond one prisoner.

There is a temptation, in cases involving high-profile or deeply unpopular individuals, to assume that access to justice is a luxury rather than a necessity. The public may feel that such people have already consumed enough of the system’s time and money. It is precisely in those cases, however, that the commitment to the rule of law is most seriously tested.

The legal aid scheme exists not to reward popularity, but to ensure that arguable claims about the exercise of State power can be brought before an independent court. It must function even, and especially, when the Claimant is someone many would cross the street to avoid. If legal aid can be quietly withheld from a high-profile prisoner on the basis that his complaints are “not surprising” given his status, then the principle that everyone is equal before the law becomes contingent on how palatable their case is.

The matter here concerned undeniably engages the wider public interest. The conditions under which high-security, high-profile prisoners are held are matters of legitimate public concern. They speak to our collective standards of decency and to the credibility of a system that purports to punish lawfully, not to degrade. Judicial scrutiny of those conditions can clarify the limits of lawful restrictions, test the interactions between domestic decisions and international sanctions, and set parameters that apply far beyond any individual case.

The proposed Judicial Review will therefore seek not only individual relief, quashing the refusals, declaratory findings that the delay and merits assessments were unlawful, and mandatory orders for prompt reconsideration, but may also serve to vindicate a broader proposition: that the Legal Aid Agency must operate the scheme in a way that facilitates access to the courts in serious, arguable cases, without fear or favour and without the influence of extraneous judgments regarding who deserves a hearing.

In short, this is not merely a dispute regarding funding forms. It is a test of whether, in 2026, the State is willing to allow even its most controversial prisoners to challenge its misconduct in court, or whether the response instead will be to ensure that they never get there at all.