Article 6 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 does not invest an accused person with the right to demand a counsel of his choice at public expense, independently of the requirements of the interests of justice
July 4, 2018
Article 6 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
does not invest an accused person with the right to demand a counsel of his choice at public expense, independently of the requirements of the interests of justice
In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland)
Kerr, Reed, Hughes, Black, L Jones, JJ
Reported by Linda Awuor and Wanjiru Njihia
International Law-law of Conventions- European Convention on Human Rights and Fundamental Freedoms-human rights-fair trial- minimum rights of a person charged with a criminal offence- whether in cases where public funding for two counsel had been granted the accused could defend himself through legal assistance of his own choosing-European Convention on Human Rights, 1950 article 6(3) (c).
Statutes-interpretation of statutory provisions-rule 4 of the Legal Aid and Advice the Criminal Aid Certificates Rules (Northern Ireland)-solicitor advocate- what was the meaning of the use of the term solicitor advocate in the Legal Aid and Advice the Criminal Aid Certificates Rules (Northern Ireland)
The Appellant was a defendant in criminal proceedings in the Crown Court in Belfast. A legal aid certificate entitled him to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. During his first trial, he was represented by a barrister, Mark Barlow (leading junior counsel) and a solicitor-advocate, Clive Neville. The jury were unable to reach a verdict and they were discharged. The Appellant was tried again. He again wished to have the junior counsel as lead counsel. The junior counsel had been disciplined by the Bar Council of Northern Ireland (the Respondent in the proceedings) on the basis that where a certificate had been granted for two counsel, unless there were exceptional circumstances meaning that a senior counsel was not available, he could not act as leading counsel. The junior counsel therefore informed the Appellant that he could not act as leading counsel. The Appellant claimed that if the junior counsel was not permitted to appear as his leading counsel, that would constitute a violation of his rights under article 6 of the European Convention on Human Rights (ECHR). The Respondent Bar Council rejected his claim. The Appellant’s re-trial proceeded and he was acquitted on seven counts, with the jury failing to reach a verdict on the other four counts. The Prosecution indicated that it did not propose that the Appellant be tried again on the counts on which the jury failed to agree. The Appellant applied for judicial review of the Bar Council’s decision on the basis that it impeded his choice of lead counsel and therefore violated his right under article 6 ECHR. He asserted that his right to choose counsel was limited only by the interests of justice test within article 6.3 ECHR. The Divisional Court dismissed his application.
i. Whether in cases where public funding for two counsel had been granted the Accused could defend himself through legal assistance of his own choosing.
ii. What was the meaning of the use of the term solicitor advocate in the Criminal Aid Certificates Rules (Northern Ireland) (2012 Rules)?
iii. What were the designations of counsel for the purposes of determining rates of payment under rule 20.11 of the code of conduct for the Bar of Northern Ireland?
Relevant provisions of law
The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
Article 29(1)-Free legal aid in the Crown Court
29(1) - Any person returned for trial for an indictable offence shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by rules made under Article 36, if a criminal aid certificate is granted in respect of him in accordance with the provisions of this Article.
Criminal Aid Certificates Rules (Northern Ireland) 2012
Rule 4-assigning solicitors and counsel: free legal aid in the Crown Court
4 (3) 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.
4(5) 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.
4(6) Where the charge is one of murder, or the case appears to present exceptional difficulties, the certifying authority may certify that in its opinion the interests of justice require that the assisted person shall have the services of two counsel.
4(7) For the purposes of paragraph (6), the term “exceptional” means that 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
4(11) 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(b), the judge shall grant such a certificate.
European Convention on Human Rights, 1950
Article 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
6(3). Everyone charged with a criminal offence has the following minimum rights
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- The grant of a certificate for criminal aid inrespect of two counsel was mandatory where required for the protection of an accused person’s convention rights and discretionary where the offence was murder or one which came within the exceptional category.
- The solicitor-advocate, when appearing for the Appellant in the Crown Court, fell to be paid by the legal aid authorities as a solicitor and in no other capacity. A solicitor had rights of audience under section 50 of the Judicature (Northern Ireland) Act 1978 but was not included in the expression counsel for the purpose of calculating payment of legal aid, nor for the purpose of the two counsel provision in rule 4(3) of the 2012 Rules.
- Trial by an independent and impartial tribunal was vital to the achievement of the goal of fairness. The Defendant was entitled to presumption of innocence as provided for in para 6.2 of ECHR and the requirements stipulated in article 6.3(a), the obligation in article 6.3(b) and the requirement in article 6.3(d). Those requirements, together with that contained in article 6.3(e), were obviously conceived as what was described in the prefatory words of article 6.3 as minimum rights to be essential safeguards for a fair trial.
- Counsel for the Appellant accepted that the above did not confer an absolute right on an accused person to insist upon public funding of the services of a lawyer of his choice to defend him. He argued that the right was one which, in common with other qualified rights under the Convention, could only be interfered with in circumstances which could be shown to be justified. Thus, the Appellant was entitled to demand that he be defended by the junior leading counsel and the solicitor-advocate, unless it could be shown by the public authority that would seek to refuse that demand, that their refusal was justified. The Appellant’s case was therefore cast as entitlement to a right to choose not only his lawyers but also that they be paid at public expense unless there was a proportionate justification for denying him that entitlement. Moreover, his claim extended to being entitled to allocate the role to be played by the junior counsel as a leading counsel in his trial.
- Counsel for the Respondent contended that the justification/proportionality analysis was inapt. That was not a case where an admitted interference with a qualified Convention right called for justification. Rather, it was one where the rules governing representation of the Appellant at his criminal trial (specifically that which required that, in other than exceptional circumstances, he be represented by senior and junior counsel) be examined in order to ascertain whether they infringed his right to a fair trial. Thus, it was not a case of the Appellant having entitlement to the full panoply of the particular type of representation that he wished to have and that the entitlement could only be denied where justification for interference with it could be shown. The Appellant’s claim fell at the anterior stage of the inquiry, viz whether there was anything about the rule embodied in rule 20.11 of the code of conduct for the Bar of Northern Ireland which impinged on the Appellant’s right to a fair trial.
- The test was what the interests of justice required to ensure that an accused person was properly defended, rather than simply what his own particular wishes might be as to the manner of his defence. That pointed to the need for a wider consideration of the need for fairness of the trial procedure rather than on an emphasis on the predilections of the Accused person as to the choice of counsel.
- The Accused person did not have the right to decide in what manner his defence should be assured. The right was to be represented by sufficiently experienced counsel of one’s choice but the role to be played by that counsel could not be dictated by the Defendant. Thus, the Appellant was entitled to ask that the junior counsel represent him but he was not entitled to insist upon the status that should be conferred on him in his conduct of the defence.
- The Appellant had not advanced any grounds that the junior counsel should be designated as the leading counsel so as to ensure that his rights of defence would be assured. As the Respondent had pointed out, the junior counsel could continue to act for the Appellant but as junior counsel, either with senior counsel, or, if senior counsel was not available, alone. The Appellant was not deprived of the services of the junior counsel by operation of rule 20.11 of the code of conduct. The deprivation, if there was one, was the denial of an enhanced payment to him acting as leading counsel.
- There were four applicable designations of counsel for the purposes of determining rates of payment in accordance with the 2005 Rules. Those rates of payment related to the categories of Queen’s Counsel; leading junior counsel; sole junior counsel; and lead junior counsel. All permutations of cases where two counsel had been assigned and permissible under the code of conduct were provided for in terms of legal aid payment. The provision of potential rates of payment for a leading junior counsel was appropriate, since junior counsel could lead in the exceptional circumstances described in rule 20.11 of the code of conduct. It was notable, however, that the designation of leading junior counsel appeared in the relevant statutory framework only for the purposes of identifying an appropriate rate of payment in costs rules. If the junior counsel had been able to act as leading junior counsel, therefore, he would have been entitled to an enhanced fee. But that had nothing to do with the issue of a guarantee of a fair trial for the Appellant.
- The wishes of a defendant as to his choice of counsel had to be taken into account but those were properly subordinate to the overall aim of achieving a fair trial. Thus, it was not a question of the Defendant enjoying a right to choose his own counsel which was freestanding of the fair trial goal. Rather it was as an element of the objective of a fair trial that the right to have counsel of one’s choice arose. For that reason, it was not appropriate to apply the same analysis to the question of infringement of the right as obtained in an examination of an admitted interference with a right such as that arose under article 8 of ECHR.
- The exercise involved was one of the courts deciding what the interests of justice required, not whether an interference with an individual’s Convention right had been justified. Of course, the wishes of a defendant might be pertinent to the question of where the interests of justice lay but that was not because they had an intrinsic value. It was because the desire of an accused person to be represented by someone in whom he reposed trust could be directly relevant to the promotion of the interests of justice aim.
- The essence of the right to choose one’s counsel lay in the contribution that the exercise of that right made to the achievement of the ultimate goal of a fair trial. It was not an autonomous right which fell to be considered outside that context. On that account, the circumstances in which and the reasons that the Defendant expressed the wish to have the junior counsel as his leading counsel were of obvious importance and required close examination. Although that admonition was based on a rule which had no equivalent in Northern Ireland, it seemed to the Court, to contain sound guidance on how solicitors should ensure that accused persons had sufficient information to make a proper choice as to how they should be represented, particularly when a certificate for two counsel had been issued.
- There was nothing in the evidence as to the circumstances in which the Defendant made his choice to indicate that he received advice of the nature outlined above. He should have received such advice. In the particular circumstances of the case, even if he had received that advice, it did not follow that he would have been entitled to insist that the junior counsel act as his leading counsel. For the reasons given, he was in any event not entitled to insist on that course. The observations in those paragraphs were made to reinforce the message that it was the professional obligation of solicitors to give clear advice to accused persons of the options available to them when a certificate for two counsel had been granted.
- Rule 20.11 of the code of conduct was obviously designed to ensure that proper representation of accused persons should be guaranteed when a certificate for two counsel had been issued. Imposing a requirement that senior counsel be engaged, unless none was available, was entirely consonant with that aim. There was no question of interference with the Appellant’s right under article 6 of ECHR. To the contrary, the rule was designed to promote and vindicate that right.
- It was therefore unnecessary to embark on an examination of the interesting issues raised by the Respondent about whether the Bar Council was a hybrid public authority and its entitlement to regulate representation of accused persons in the conduct of criminal trials.
- Article 6 did not invest an accused person with the right to demand a counsel of his choice at public expense, independently of the requirements of the interests of justice. If it could be shown that the interests of justice would best be served by having a requirement that, where a certificate for two counsel was issued, it would, in general, be better for an accused to be represented by both senior and junior counsel, a requirement that that was so could not give rise to any violation of article 6. That the interests of justice would be best served in that way was beyond serious dispute. Senior counsel obtained that rank on the basis of an objective assessment of their professional expertise and experience. Rule 20.11 did no more than give effect to the desirability that defendants be represented at the highest possible standard, just as rule 4(3) of the 2012 Rules did.
- The circumstance that that aspiration found expression in a rule contained in the code of conduct of the Bar did not sound on the question of the Appellant’s article 6 rights. So far from impinging on those rights, the rule was plainly designed to uphold and vindicate them. The source of the rule was therefore irrelevant to any possible violation of article 6.3(c). That simply did not arise.
Relevance to Kenyan Situation.
The constitution of Kenya,2010 at Article 50 on fair hearing provides that every accused person has a right to a fair trial which includes the right to choose, and be represented by an advocate and to be informed of his right promptly.
The International Covenant on Civil and Political Rights (ICCP) adopted on December 16,1966 which Kenya acceded to in May 1,1972 provides in Article 14(3)(d) that legal assistance should be assigned to a party in any case where the interests of justice so require, and without payment in the case of a party who lacks the means to pay for it.
Legal Aid Act, No. 6 of 2016 at section 5 establishes the National Legal Aid Service. Section 7 on functions of the service provides at subsection 1(m) that the functions of the service shall be to assign legal aid providers to persons granted legal aid under the Act.
Section 44(2) and (4) on decision on application for legal aid provides that where the Service grants legal aid to an applicant under the Act, the Services shall specify the conditions, if any, attaching to the grant, the name of the accredited legal aid provider assigned to the aided person and may specify a maximum grant.
Section 44(4) provides that the decision of the Service shall be in writing and shall specify the conditions, if any, attaching to the grant of legal aid, the matter for which the legal aid is granted or not granted, the date on which the grant of legal aid takes effect, the benefits included in the grant of legal aid, the possible deductible amount from the grant to the aided person, and the name of the legal aid provider assigned to the aided person.
George Osanda Osino in his thesis ‘examining the right to legal representation at public expense: a case for Kenya” stated that the right to representation in Kenya entails the right to choose one’s preferred advocate. However desirable that an accused should be afforded a lawyer of his/her choice, that is not always the case.
Due to the challenge of constrained resources, it may not be possible to conveniently avail an accused person a lawyer of his choice. The state should aim to provide a competent qualified lawyer at all times.