An application of Raymond Brownlee for Judicial Review (AP) (Northern Ireland)
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Neuberger,Lord Clarke,Lord Reed,Lord Hodge |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] UKSC 4 |
| Court | Supreme Court |
| Date | 29 January 2014 |
[2014] UKSC 4
Lord Neuberger, President
Lord Kerr
Lord Clarke
Lord Reed
Lord Hodge
Appellant
Ronan Lavery QC
Conan Fegan BL
(Instructed by McGuigan Malone Solicitors)
Respondent
John F Larkin QC, Attorney General for Northern Ireland David Scoffield QC
Peter Coll BL
(Instructed by Departmental Solicitor's Office)
Heard on 5 December 2013
Lord Kerr ( with whomLord Neuberger, Lord Clarke, Lord Reed and Lord Hodgeagree)
Following a trial before HHJ Miller QC and a jury at Belfast Crown Court, Raymond Brownlee was convicted on 1 June 2012 of a number of offences including false imprisonment, making threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecution's case. But at that stage in the trial, differences arose between Mr Brownlee and his legal team. Initially, senior counsel intimated to the trial judge that he felt professionally compromised and had to withdraw from his representation of the accused. When the judge put this to Mr Brownlee, he said that he did not want counsel to withdraw from representing him and that he believed that things had been perhaps "taken up … the wrong way". At this point his solicitor intervened to say that he felt that the situation was not irretrievable. On hearing this, the learned judge decided to give the solicitor the opportunity to consult with his client over the lunch adjournment.
After lunch, Mr Brownlee's solicitor informed the court that his client had dismissed his legal team. The judge asked Mr Brownlee if he was to take it that he wished to dispense with the services of the solicitor and the barristers who had been acting for him. Mr Brownlee replied that he did and the judge indicated that he intended to proceed with the trial. He did not permit the prosecution to close the case to the jury but asked the accused man whether there was anything that he wished to say. Having been informed that there was nothing which Mr Brownlee wished to say, the judge proceeded to charge the jury and, after deliberations, they returned the guilty verdicts. They also found the defendant not guilty on three further counts, on one of these by direction of the judge. The case was adjourned in order to permit the defendant to retain the services of new solicitors and counsel.
New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July 2012 the judge extended the legal aid certificate which he had granted in favour of the defendant to include senior counsel as well as junior counsel and solicitors. That decision was taken on foot of representations made to the judge that the sentencing exercise would be complex. The offences were grave and the pre-sentence probation report suggested that the accused man was a dangerous offender and it foreshadowed an indeterminate or extended sentence as the possible disposal.
Correspondence was then exchanged between the accused's solicitors and the Northern Ireland Legal Services Commission (LSC). The Department of Justice is the sponsor department of LSC. On 4 September 2012 the LSC wrote to Mr Brownlee's solicitors informing them that the fees payable for the sentencing hearing were fixed according to paragraph 15 of Part IV of Schedule 1 to the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the 2005 Rules SR 2005/112), as amended by the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2011 (the 2011 Rules SR 2011/152). Despite the fact that counsel who then appeared for the accused was not counsel who had represented him at trial, only the fees stipulated in the 2011 Rules were payable. In this instance, these were £100 for solicitor, £120 for junior counsel and £240 for senior counsel. No fees were payable in respect of any preparatory work that counsel would be required to undertake.
It was pointed out that a substantial amount of preparation would be required in order to properly represent Mr Brownlee during the sentencing exercise. Consideration of the transcripts for five days of evidence and submissions would be necessary. A decision would have to be taken as to whether a consultant psychiatrist should be engaged. Detailed examination of the pre-sentence report was essential. Considerable legal research would be required. The LSC replied to the accused's solicitors and informed them that no exception could be made to the level of the fixed fees prescribed by the 2011 Rules. The exceptionality provision contained in the 2005 Rules had been expressly removed by the 2011 Rules and there was therefore no possibility of departing from the stipulated fees.
Following this exchange of correspondence, Mr Brownlee's solicitors tried to engage counsel to act for him on the sentencing hearing. This proved impossible. Despite approaching various counsel, the chairman of the Bar Council and the Bar's pro bono unit, the accused's solicitors have been unable to obtain the services of senior or junior counsel. They have been consistently informed that the absence of any allowance for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the appellant for the payment specified.
Article 36(3) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 ( SI 1981/228 (NI 8)) contains the power to make rules for the purpose of carrying into effect Part III of the Order whose title is "Free Legal Aid in Criminal Proceedings". As amended, article 36(3) provides:
"[The Department of Justice], after consultation with the Lord Chief Justice, the Attorney General and, where appropriate, the [relevant Rules Committee], and with the approval of [the Department of Finance and Personnel] may make rules generally for carrying [Part III of the 1981 Order] into effect and such rules shall in particular prescribe —
…
(d) the rates or scales of payment of any fees, costs or other expenses which are payable under [Part III]."
Article 37 sets out, in a non-exhaustive list, the matters to which the rule making body must have regard. Again as amended, it provides:
"The [Department of Justice] in exercising any power to make rules as to the amounts payable under this Part to counsel or a solicitor assigned to give legal aid, and any person by whom any amount so payable is determined in a particular case, shall have regard, among the matters which are relevant, to-
(a) the time and skill which work of the description to which the rules relate requires;
(b) the number and general level of competence of persons undertaking work of that description;
(c) the cost to public funds of any provision made by the rules; and
(d) the need to secure value for money,
but nothing in this Article shall require him to have regard to any fees payable to solicitors and counsel otherwise than under this Part."
It can be seen, therefore, that a clear enjoinder is given to the rule making body to devise rules that will allow payment to be made which, among other things, reflects the time and skill necessary to carry out particular types of criminal legal aid work. It necessarily follows that rules which do not cater for payment on the basis of the skill and time required for such work are ultra vires the enabling power.
The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 contained provisions which permitted payment to be made above the standard rate if a case presented exceptional difficulty. Rule 11(4) provided:
"(4) Where an advocate considers that, owing to the exceptional circumstances of the case (or part of the case which is the subject-matter of the application), the amount payable by way of fees in accordance with paragraphs (2) and (3) [which made provision for the payment of standard fees] would not provide reasonable remuneration for some or all of the work involved, he may apply to the Commission for a Certificate of Exceptionality and the Commission may, in its discretion, grant such application in accordance with paragraph (5)."
Rule 11(5) contained a list of matters to be taken into account in deciding whether a Certificate of Exceptionality should be granted. Again it was made clear that this was a non-exhaustive list. Rule 11(5) provided:
"When considering an application for a Certificate of Exceptionality, the Commission shall have regard, among the matters which are relevant, to-
(a) whether the issues involved were significantly more complex than other cases involving the same offence or Class of Offence;
(b) whether the volume of evidence (including any un-used evidentiary material) was significantly greater than that in other cases involving the same offence or Class of Offence;
(c) any novel issues of law which were involved in the case; and
(d) any new precedents established in the case …"
Under the 2005 Rules, therefore, it would have been open to the new counsel who had been retained for the sentencing exercise to apply for a Certificate of Exceptionality on the grounds that the issues were significantly more complex for them by reason of the fact that they had not previously been involved in the case and that a substantial amount of preparation would be required on that account.
The exceptionality provision was swept away by the 2011 Rules. Rule 12 of these Rules provided that paragraphs (4) to (8) of rule 11 of the 2005 Rules were to be omitted. Paragraphs (4) and (5), whereby an uplift in fees could be applied for, were no longer available for that purpose.
Mr Brownlee applied for judicial review of the department's decision not to allow any modification of the standard fees to be paid for the...
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