Re Maguire's Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Reed,Lord Hughes,Lady Black,Lord Lloyd-Jones |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] UKSC 17 |
| Date | 21 March 2018 |
| Court | Supreme Court |
[2018] UKSC 17
Lord Kerr
Lord Reed
Lord Hughes
Lady Black
Lord Lloyd-Jones
Appellant
Aidan O'Neill QC
Anita Davies
(Instructed by KRW Law LLP)
Respondent
David A Scoffield QC
Donal Sayers
(Instructed by Elliott Duffy Garrett Solicitors)
Heard on 19 October 2017
( with whom Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones agree)
The appellant, Kevin Maguire, was a defendant in criminal proceedings in the Crown Court in Belfast. By the issue of a legal aid certificate dated 7 June 2012, he became entitled to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. The certificate was issued under article 29(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (the 1981 Order).
The appellant's first trial, before a judge sitting with a jury, began on 28 November 2012 at Belfast Crown Court. He was represented by Mark Barlow of counsel (described in these proceedings as “leading junior counsel”) and Clive Neville, a solicitor-advocate who is a member of the firm of Trevor Smyth & Co, solicitors. They received instructions to appear for Mr Maguire from Chris Mitchell who is a solicitor in the same firm as Mr Neville, Trevor Smyth & Co The jury in the first trial were unable to reach a verdict and they were discharged.
The appellant was tried again. That re-trial was originally scheduled to begin on 13 November 2013. Mr Maguire again wished to have Mr Barlow as his “leading counsel”. In the meantime, however, Mr Barlow had appeared before a summary panel of the Bar Council, convened by the professional conduct committee of the council in relation to two other cases in which he had appeared as “leading counsel”. In both cases a solicitor advocate had acted as Mr Barlow's “junior”. Mr Barlow is not Queen's Counsel. He was called to the Bar of England and Wales in 1992 and to the Bar of Northern Ireland in 2006. He is junior counsel in both jurisdictions. His appearance before the committee, therefore, was to answer charges that he had been in breach of rule 20.11 of the code of conduct for the Bar of Northern Ireland. At the material time this rule stated that:
“In criminal cases where legal aid has been granted for two barristers one should be a senior counsel. Where, exceptionally, a senior counsel is unavailable, it is permissible for a junior to lead. This junior should be experienced and be of not less than 15 years' standing.”
After some discussion before the summary panel as to the extent of the exceptionality provided for by this rule, Mr Barlow admitted that he had been in breach of it. In neither of the two cases had it been established that senior counsel was not available.
Following this, Mr Barlow informed the appellant that he could not act as his leading counsel. The appellant, and subsequently his current solicitors, engaged in correspondence with the Bar of Northern Ireland about this. The solicitors asserted that if Mr Barlow was not permitted to appear as the appellant's leading counsel, this would constitute a violation of Mr Maguire's rights under article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The respondent rejected this claim. Mr Maguire's retrial duly proceeded in January 2015. He was acquitted of seven of the 11 counts on which he had been charged. The jury failed to reach a verdict on the remaining four counts. The prosecution has indicated that it is not intended that the appellant be required to stand trial again on those counts.
The appellant applied for leave to issue judicial review proceedings on 9 June 2014. He claimed that the Bar Council's decision to “impede” his choice of lead advocate violated his rights under article 6.3(c) of ECHR. He asserted that his right to choose counsel was limited only by the interests of justice test articulated in that provision. Leave to apply for judicial review was granted on 6 October 2014.
Following a hearing before a Divisional Court (Sir Declan Morgan LCJ, Coghlin and Gillen LJJ), judgment was delivered on 19 January 2015, dismissing the appeal (Neutral Citation No [2015] NIQB 4). All three members of the Divisional Court gave judgments. Morgan LCJ considered that the right to choose one's counsel; was “a qualified right” — para 36; “the defendant's wish to have particular legal assistance may be overridden where there are sufficient grounds for concluding that this is necessary in the interests of justice.” Coghlin LJ considered that rule 20.11 of the code of conduct was “fair and proportionate”, designed as it was to provide a “basic generic safeguard” for a defendant, victims and the general public. That safeguard ensured that in cases involving a charge of murder or where there were exceptional difficulties, legal representation should comprise senior and junior counsel. The overall purpose of the code of conduct was to guarantee that the lay client was represented by the most able and experienced counsel available — para 5. No breach of article 6.3 had occurred — para 12. Gillen LJ held that the code of conduct accorded with the triangulation of interests — those of the accused, those of the victim and his or her family and the interests of the public — identified by Lord Steyn in Attorney General's reference (No 3 of 1999) [2001] 2 AC 91, 118. There was therefore no violation of article 6.3(c) — para 23.
Article 29(1) of the 1981 Order provides that any person returned for trial on certain indictable offences, as specified in the sub-article, is entitled to free legal aid in the preparation and conduct of his defence at the trial. For that purpose, he has solicitor and counsel assigned to him according to rules made under article 36, if a criminal aid certificate is granted in accordance with the succeeding provisions of article 29.
The relevant rules are the Criminal Aid Certificates Rules (Northern Ireland) 2012 (the 2012 Rules). Rule 4(1) of these provides for the assigning of a solicitor and rule 4(5) makes provision about counsel as follows:
“A criminal aid certificate granted under article 29 of the Order —
(a) includes representation by one counsel; and
(b) may include representation by two counsel only in the cases specified and in the manner provided for by the following provisions of this rule.”
Rule 4(6) provides that where the charge is one of murder, or the case presents exceptional difficulties, the certifying authority may certify that in its opinion the interests of justice require that the assisted person shall have the assistance of two counsel. (The certifying authority in this context is a court — article 29(2) of the 1981 Order. In this case, the certificate for two counsel was issued by a district judge.) Exceptionality for the purposes of rule 4(6) is defined in rule 4(7) as where the case “for or against the assisted person involves substantial novel or complex issues of law or fact, such that it could not be adequately presented by one counsel.”
Rule 4(11) provides:
“Without prejudice to paragraphs (6) and (7), where a judge of the court before which the assisted person is to be tried is of the opinion that in the interests of justice a criminal aid certificate in respect of two counsel must be granted in order to protect the assisted person's rights under the Human Rights Act 1998, the judge shall grant such a certificate.”
The grant of a certificate is therefore mandatory where required for the protection of an accused person's Convention rights and discretionary where the offence is murder or one which comes within the exceptional category. Where, on either account, a certificate under rule 4(5)(b) for two counsel is granted, rule 4(3) becomes relevant:
“Any member of the Bar who is practising in Northern Ireland and is willing to appear as counsel for legally aided persons in criminal cases may be instructed, on behalf of the assisted person, by the solicitor assigned under paragraph (1), and, in any case in which the certifying authority has granted a certificate as provided for under paragraph (5)(b), one such member of the Bar and a member of the Bar, being one of Her Majesty's Counsel who is practising in Northern Ireland or a senior counsel practising outside of Northern Ireland, may be so instructed.”
The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the 2005 Rules) made provision for the payment of costs in legally aided proceedings in the Crown Court. The 2005 Rules were amended by the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2011 (the 2011 Rules). Rule 2 of the 2005 Rules, as amended by rule 6 of the 2011 Rules, provides that counsel means “counsel assigned under a criminal aid certificate granted under article 29 of the [1981] Order, or counsel who undertook the defence of a person at the request of the judge under article 36(2) of the Order”.
Rule 4A of the 2005 Rules deals with the payment of enhanced costs where a solicitor conducts a trial or hearing in the Crown Court. Paragraphs 1 and 4 are the relevant provisions. They provide:
“(1) Where a solicitor exercising his right of audience under section 50 of the Judicature (Northern Ireland) Act 1978 conducts a trial or hearing without counsel he shall be entitled to an enhancement of his costs in accordance with this rule.
…
(4) This rule also applies where a criminal aid certificate was granted for two counsel and a solicitor conducts the trial or hearing with or without a second counsel.”
In the course of the appeal before this court, a question arose concerning the use of the term...
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