In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17, the Supreme Court unanimously dismissed the appellant’s appeal, holding that rule 20.11 of the code of conduct for the Bar of Northern Ireland did not violate his right to choose counsel of his own choosing under article 6.3(c) of the European Convention on Human Rights.

Mr Maguire was a defendant in criminal proceedings in the Crown Court in Belfast. He was granted a legal aid certificate on 7 June 2012 under article 29(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, entitling him to public funding for a solicitor and two counsel. His first trial began on 28 November 2012. He was represented by Mark Barlow, a junior barrister of the Bar of England and Wales (called in 1992) and of Northern Ireland (called in 2006), described as leading junior counsel, and Clive Neville, a solicitor-advocate, who received instructions from Chris Mitchell of the same firm. The jury failed to reach a verdict and were discharged.

A retrial was scheduled for 13 November 2013. Mr Maguire again wished to have Mr Barlow as his leading counsel. However, Mr Barlow had in the meantime appeared before a summary panel of the professional conduct committee of the Bar Council in relation to two other cases in which he had acted as leading counsel with a solicitor-advocate as his junior. He was found to have breached rule 20.11 of the code of conduct, which provided that in criminal cases where legal aid had been granted for two barristers one should be senior counsel and that where, exceptionally, senior counsel was unavailable it was permissible for a junior to lead, but that junior should be experienced and of not less than fifteen years’ standing. In neither of the two cases had it been established that senior counsel was unavailable. Following the finding of breach, Mr Barlow informed Mr Maguire that he could not act as his leading counsel. Mr Maguire and his solicitors corresponded with the Bar of Northern Ireland, asserting that preventing Mr Barlow from appearing as leading counsel would violate Mr Maguire’s article 6 rights. The Bar rejected that claim. The retrial proceeded in January 2015. Mr Maguire was acquitted of seven of the eleven counts but the jury failed to reach a verdict on the remaining four. The prosecution indicated that no further trial would take place.

Mr Maguire applied for leave to bring judicial review proceedings on 9 June 2014, claiming that the Bar Council’s decision to impede his choice of lead advocate violated his rights under article 6.3(c). Leave was granted on 6 October 2014. A Divisional Court comprising Sir Declan Morgan LCJ, Coghlin LJ and Gillen LJ dismissed the application on 19 January 2015. All three members gave judgments concluding that the right to choose one’s counsel was qualified and could be overridden where necessary in the interests of justice, that rule 20.11 was a fair and proportionate safeguard designed to ensure that defendants in serious cases were represented by the most able and experienced counsel available, and that no breach of article 6.3(c) had occurred.

The relevant statutory framework was article 29 of the 1981 Order, which provided for legal aid certificates, and the Criminal Aid Certificates Rules (Northern Ireland) 2012. Rule 4(5) provided that a certificate granted under article 29 included representation by one counsel and might include representation by two counsel only in specified cases. Rule 4(6) provided that where the charge was murder or the case presented exceptional difficulties the certifying authority might certify that the interests of justice required the assistance of two counsel. Rule 4(11) made provision for mandatory grant of a certificate for two counsel where a judge was of the opinion that in the interests of justice such a certificate was required to protect the assisted person’s rights under the Human Rights Act 1998. Rule 4(3) provided that where a certificate for two counsel was granted, one member of the Bar and a member of the Bar being Queen’s Counsel practising in Northern Ireland or senior counsel practising outside Northern Ireland might be instructed. The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended in 2011, dealt with payment of costs. The 2011 amendments meant that the term “solicitor advocate” no longer appeared in the relevant rules. 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 or for the purpose of the two counsel provision in rule 4(3) of the 2012 Rules. Mr Neville therefore fell to be paid as a solicitor and in no other capacity.

On behalf of Mr Maguire, Mr O’Neill QC accepted that article 6.3(c) did not confer an absolute right on an accused person to insist upon public funding of the services of a lawyer of his choice. He argued, however, that the right was a qualified right which could only be interfered with where interference could be shown to be justified and proportionate. The appellant’s case was therefore that he was entitled to demand that he be defended by Mr Barlow and Mr Neville and to allocate the role to be played by Mr Barlow as leading counsel, unless the public authority refusing that demand could show that the refusal was justified. For the respondent, Mr Scoffield QC contended that the justification and proportionality analysis was inapt. This was not a case where an admitted interference with a qualified Convention right called for justification. Rather, it was a case where the rules governing representation should be examined to ascertain whether they infringed the right to a fair trial. The appellant’s claim failed at the anterior stage of the inquiry, namely whether there was anything about rule 20.11 that impinged on Mr Maguire’s right to a fair trial.

Lord Kerr (with whom Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed) held that article 6.3(c) must be considered in the context of the overarching provision in article 6.1, which emphasised the need for fairness. The requirements in article 6.3 were conceived as minimum rights essential for a fair trial. The right in article 6.3(c) to defend oneself in person or through legal assistance of one’s own choosing, or to be given it free when the interests of justice so required, must be understood in that context. The court examined the jurisprudence of the European Court of Human Rights. In Correia de Matos v Portugal the European Court held that article 6.3(c) did not give the accused the right to decide himself in what manner his defence should be assured, and that the decision depended upon the applicable legislation or rules of court. It stressed that the reasons for requiring compulsory representation by a lawyer for certain stages of proceedings were sufficient and relevant, being measures in the interests of the accused designed to ensure the proper defence of his interests. The importance of that decision lay in the recognition that 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.

In K v Denmark the European Commission on Human Rights said that article 6.3(c) did not guarantee the right to choose an official defence counsel appointed by the court and that the Commission must take account of the situation of the defence as a whole rather than the position of the accused taken in isolation. The emphasis was on the adequacy of representation rather than on the freedom of choice of the accused person as to the identity of counsel. This was because the gravamen of the right guaranteed by article 6.3(c) lay in its conducing to a fair trial, rather than its championing of the freedom of the individual defendant to choose his lawyer. The article 6.3(c) right could thus be contrasted with rights under article 8 which could be characterised as intensely personal.

In Mayzit v Russia the European Court held that article 6.3(c) guaranteed that proceedings against the accused would not take place without adequate representation for the defence but did not give the accused the right to decide himself in what manner his defence should be assured. Notwithstanding the importance of a relationship of confidence between lawyer and client, the right to choose one’s own counsel could not be considered absolute and was necessarily subject to certain limitations where free legal aid was concerned and where it was for the courts to decide whether the interests of justice required that the accused be defended by counsel appointed by them. When appointing defence counsel, the national courts must have regard to the defendant’s wishes but could override those wishes when there were relevant and sufficient grounds for holding that this was necessary in the interests of justice. The most significant observation was that 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 Mr Maguire was entitled to ask that Mr Barlow represent him but was not entitled to insist upon the status that should be conferred on Mr Barlow in his conduct of the defence.

In Dzankovic v Germany the European Court held inadmissible a complaint that the applicant’s request for his chosen representative to be designated official defence counsel had been refused. The applicant was still represented by the same counsel. What was important was that he had not put forward any grounds making a different procedural approach necessary to ensure that his rights of defence were secured. Likewise, Mr Maguire had not advanced any grounds that Mr Barlow should be designated leading counsel so as to ensure that his rights of defence would be assured. Mr Barlow could continue to act for Mr Maguire but as junior counsel, either with senior counsel or, if senior counsel was not available, alone. Mr Maguire was not deprived of the services of Mr Barlow by operation of rule 20.11. The deprivation, if there was one, was the denial of an enhanced payment to Mr Barlow acting as leading counsel. There were four applicable designations of counsel for the purposes of determining rates of payment under the 2005 Rules. The provision for payment of a leading junior counsel was appropriate since junior counsel might lead in the exceptional circumstances described in rule 20.11. If Mr Barlow had been able to act as leading junior counsel he would have been entitled to an enhanced fee, but this had nothing whatever to do with the issue of a guarantee of a fair trial for Mr Maguire.

The wishes of a defendant as to his choice of counsel must be taken into account but were properly subordinate to the overall aim of achieving a fair trial. 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 this 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 arose under article 8. This was clear from such cases as Croissant v Germany, where the European Court said that it was for the courts to decide whether the interests of justice required that the accused be defended by counsel appointed by them and that when appointing defence counsel the national courts must have regard to the defendant’s wishes but could override those wishes when there were relevant and sufficient grounds for holding that this was necessary in the interests of justice. The exercise 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. The wishes of a defendant might be pertinent to the question of where the interests of justice lay but not because they had intrinsic value; it was because the desire of an accused person to be represented by someone in whom he reposed trust might be directly relevant to the promotion of the interests of justice aim. Essentially the same message was conveyed in Dvorski v Croatia, where the Grand Chamber said that the right set out in article 6.3(c) was one element, among others, of the concept of a fair trial in criminal proceedings contained in article 6.1.

It was clear from this review that 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 Mr Maguire expressed the wish to have Mr Barlow as his leading counsel were of obvious importance. In his affidavit Mr Maguire said that his wish was to instruct Mr Barlow as his lead counsel in the retrial because he had confidence in Mr Barlow to appear as his lead counsel due to his knowledge of his case. The court considered the question of advice to an accused person about his representation. In Addison v HM Advocate the Inner House had held that it was the duty of the accused’s solicitor to take all reasonable steps to ascertain which members of the Bar and solicitor-advocates experienced in the relevant area were or might be available to conduct the defence and to give advice so that the client could make an informed decision. Although that admonition was based on a rule which had no equivalent in Northern Ireland, it seemed to Lord Kerr to contain sound guidance on how solicitors should ensure that accused persons had sufficient information to make a proper choice. There was nothing in the evidence to indicate that Mr Maguire received advice of that nature. He should have received such advice. Of course, even if he had received that advice it did not follow that he would have been entitled to insist that Mr Barlow act as his leading counsel. For the reasons given he was in any event not entitled to insist on that course. The observations were made to reinforce the message given in Addison that it was the professional obligation of solicitors to give clear advice to accused persons of the options available 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. To the contrary, the rule was designed to promote and vindicate that right. In light of that conclusion it was 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 that he have 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 this be so could not give rise to any violation of article 6. That the interests of justice would be best served in this 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

Addison v HM Advocate [2015] JC 105
Woodside v HM Advocate [2009] SCCR 350