Hilary Term [2018] UKSC 17 On appeal from: [2015] NIQB 4

JUDGMENT
In the matter of an application by Kevin Maguire
for Judicial Review (Northern Ireland)
before
Lord Kerr
Lord Reed
Lord Hughes
Lady Black
Lord Lloyd-Jones
JUDGMENT GIVEN ON
21 March 2018
Heard on 19 October 2017
Appellant Respondent
Aidan O’Neill QC David A Scoffield QC
Anita Davies Donal Sayers
(Instructed by KRW Law
LLP
)
(Instructed by Elliott
Duffy Garrett Solicitors
)
Page 2
LORD KERR: (with whom Lord Reed, Lord Hughes, Lady Black and Lord
Lloyd-Jones agree)
Introduction
1. 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).
2. 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.
3. 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.”
Page 3
4. 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.
5. 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 judicial review application
6. 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.
7. 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.
Page 4
The statutory regime
8. 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.
9. 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.”
10. 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.”
11. 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.”
Page 5
12. 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.”
13. 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”.
14. 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.”
Page 6
15. In the course of the appeal before this court, a question arose concerning the
use of the term “solicitor advocate” in the relevant legislation and rules. In written
submissions made by the respondent after the hearing, the following information
and explanations were provided. There is no reference to the term in the 1981 Order.
Rule 2 of the 2005 Rules (as made) provided that the term “advocate” included a
solicitor exercising a right of audience under section 50 of the Judicature (Northern
Ireland) Act 1978 (the 1978 Act) (which gave a general right of audience to
solicitors to conduct proceedings in the Crown Court, whether or not he has been
certified by the Law Society as an “advanced advocate”).
16. The term “solicitor advocate” appeared several times in the 2005 Rules, as
they were originally made. The term also appeared in the Legal Aid for Crown Court
Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2009 (the 2009 Rules),
within a “rates for payment table” inserted in the 2005 Rules by rule 17 of the 2009
Rules.
17. The 2011 Rules amended the 2005 Rules by substituting “counsel” for
“advocate” where that term had appeared in the latter rules. It also provided for the
omission of the definition of “advocate” which had been contained in rule 2 of the
2005 Rules. The 2011 Rules also provided that Schedule 1 to the 2005 Rules be
amended and that Schedule 2 should be removed. The upshot of all this is that no
reference to “solicitor advocate” remains within the 2005 Rules. The relevant terms
are simply “counsel” or “solicitor”. As regards the present appeal, therefore, this
means that Mr Neville, 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
has rights of audience under section 50 of the 1978 Act but is 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.
Article 6 of ECHR
18. Article 6.1 of ECHR provides:
“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 …”
19. The context for the more explicit rights contained in the succeeding
paragraphs of article 6 is set by this overarching provision. The emphasis is on the
need for fairness. Trial by an independent and impartial tribunal is obviously vital
Page 7
to the achievement of the goal of fairness. Likewise, the presumption of innocence
provided for in para 6.2 and the requirements stipulated in article 6.3(a) that
everyone charged with a criminal offence must be informed promptly and in detail
“of the nature and cause of the accusation against him”. So too, the obligation in
article 6.3(b) that a person charged with a criminal offence must have adequate time
and facilities for the preparation of his defence and the requirement in article 6.3(d)
that an accused person be permitted to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him. These requirements, together with that
contained in article 6.3(e) to the effect that, if necessary, the accused person should
have the free assistance of an interpreter, were obviously conceived as what is
described in the prefatory words of article 6.3 as “minimum rights” to be essential
safeguards for a fair trial.
20. It is against that background that the provision which is critical in this appeal,
article 6.3(c) of ECHR, falls to be considered. It provides that every person charged
with a criminal offence shall have the right “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”.
21. Sensibly, Mr O’Neill QC for the appellant accepts that this does 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 argues, however, that the right is one
which, in common with other qualified rights under the Convention, should only be
interfered with in circumstances which can be shown to be justified. Thus, argues
Mr O’Neill, the appellant is entitled to demand that he be defended by Mr Barlow
and Mr Neville, unless it can be shown by the public authority that would seek to
refuse that demand, that their refusal was justified. The appellant’s case is therefore
cast as entitlement to a right to choose not only his lawyers but also that they be paid
at public expense unless there is a proportionate justification for denying him that
entitlement. Moreover, his claim extends to being entitled to allocate the role to be
played by Mr Barlow – as soi disant leading counsel – in his trial.
22. For the respondent, Mr Scoffield QC contends that the
justification/proportionality analysis is inapt. This is not a case, he argues, where an
admitted interference with a qualified Convention right calls for justification.
Rather, he says, it is one where the rules governing representation of the appellant
at his criminal trial (specifically that which requires that, in other than exceptional
circumstances, he be represented by senior and junior counsel) be examined in order
to ascertain whether they infringe his right to a fair trial. Thus, it is not a case of the
appellant having entitlement to the full panoply of the particular type of
representation that he wishes to have and that this entitlement can only be denied
where justification for interference with it can be shown. The appellant’s claim fails,
Mr Scoffield argues, at the anterior stage of the inquiry, viz whether there is anything
Page 8
about the rule embodied in rule 20.11 of the code of conduct which impinges on Mr
Maguire’s right to a fair trial.
23. In order to decide which of these fundamentally different approaches to the
application of article 6.3(c) should prevail, it is necessary to examine the
jurisprudence of the European Court of Human Rights (ECtHR).
The case law of ECtHR
24. In Correia de Matos v Portugal (Application No 48188/99) the applicant had
been committed for trial in Portugal for insulting a judge. The judge investigating
that charge assigned a lawyer to represent him. Mr de Matos objected. He wanted to
represent himself. He relied on article 6.3(c) of the Convention. He appealed against
the order of committal. His appeal was declared inadmissible because it had not been
lodged by a lawyer and because he was forbidden to defend himself in person. An
appeal to the Constitutional Court was dismissed for the same reason. The
Strasbourg court observed that the European Commission on Human Rights
(ECmHR) had ruled on a number of occasions that article 6.3(c) did not invest an
accused person with the right to decide how the fair trial of the charge against him
should be secured. In particular, in X v Norway (decision of 30 May 1975, DR 3, p
43) ECmHR had held that “although this provision guarantees that proceedings
against the accused will not take place without adequate representation for the
defence, it does not give the accused the right to decide himself in what manner his
defence should be assured. The decision as to whether the applicant will defend
himself in person or be represented by a lawyer of his own choosing, or in certain
circumstances one appointed by the court, depends upon the applicable legislation
or rules of court”.
25. The court in Correia de Matos saw no reason to depart from previous case
law. It said:
“… in this area it is essential for applicants to be in a position
to present their defence appropriately in accordance with the
requirements of a fair trial. However, the decision to allow an
accused to defend himself or herself in person or to assign him
or her a lawyer does still fall within the margin of appreciation
of the Contracting States, which are better placed than the
Court to choose the appropriate means by which to enable their
judicial system to guarantee the rights of the defence.
Page 9
It should be stressed that the reasons relied on for requiring
compulsory representation by a lawyer for certain stages of the
proceedings are, in the Court’s view, sufficient and relevant. It
is, in particular, a measure in the interests of the accused
designed to ensure the proper defence of his interests. The
domestic courts are therefore entitled to consider that the
interests of justice require the compulsory appointment of a
lawyer.” (emphasis supplied)
26. The importance of this decision and the jurisprudence of ECmHR on which
it draws lies in the recognition that the test is what the interests of justice require to
ensure that an accused person is properly defended, rather than simply what his own
particular wishes may be as to the manner of his defence. This points 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.
27. This theme can be detected in the case of K v Denmark (Application No
19524/92, 5 May 1993), again a decision of ECmHR. In that case a lawyer, Mr
Reindel, was appointed by the High Court to act as defence counsel for the applicant.
It was then discovered that Mr Reindel was to be called as a witness and his
appointment was rescinded and another lawyer was appointed in his stead. At para
2 ECmHR said this in relation to article 6.3(c):
“The Commission recalls that the right to legal representation
of one’s own choosing ensured by this provision is not of an
absolute nature (cf for example No 5923/72, Dec 30.5.75, DR
3, p 43) and it does not guarantee the right to choose an official
defence counsel who is appointed by the court (cf No 6946/75,
Dec 6.7.76, DR 6, p 114). In examining this question under
article 6 para 3(c) (article 6-3-c) of the Convention the
Commission must take account of the situation of the defence
as a whole rather than the position of the accused taken in
isolation, having regard in particular to the principle of equality
of arms as included in the concept of a fair hearing. Thus article
6 para 3(c) (article 6-3-c) of the Convention guarantees that the
proceedings against the accused shall not take place without
adequate representation for the defence, but does not give the
accused the right to decide himself in what manner his defence
should be assured (cf for example No 8295/78, Dec 9.10.78,
DR 15 p 242).” (emphasis supplied)
28. Here again the emphasis was on the adequacy of the representation rather
than on the freedom of choice of the accused person as to the identity of counsel by
Page 10
whom he should be represented. This is because the gravamen of the right
guaranteed by article 6.3(c) lies in its conducing to a fair trial, rather than its
championing of the freedom of the individual defendant to choose the lawyer by
whom he should be represented. The article 6.3(c) right can thus be contrasted with,
for instance, the rights under article 8 of ECHR which can be characterised as
intensely personal and intimately connected to the wishes of the individual on whose
behalf they are asserted.
29. In Mayzit v Russia (2006) 43 EHRR 38 the applicant wished to be represented
by his mother and sister. His request that they be permitted to appear for him was
refused on the basis that the case required special legal knowledge and professional
experience. At paras 65 and 66 the court said:
“65. Article 6(3)(c) guarantees that proceedings against the
accused will not take place without an adequate representation
for the defence, but does not give the accused the right to decide
himself in what manner his defence should be assured. The
decision as to which of the two alternatives mentioned in the
provision should be chosen, namely the applicant’s right to
defend himself in person or to be represented by a lawyer of his
own choosing, or in certain circumstances one appointed by the
court, depends upon the applicable legislation or rules of court.
66. Notwithstanding the importance of a relationship of
confidence between lawyer and client, the right to choose one’s
own Counsel cannot be considered to be absolute. It is
necessarily subject to certain limitations where free legal aid is
concerned, and also where it is for the courts to decide whether
the interests of justice require that the accused be defended by
Counsel appointed by them. When appointing defence
Counsel, the national courts must certainly have regard to the
defendant’s wishes. However, they can override those wishes
when there are relevant and sufficient grounds for holding that
this is necessary in the interests of justice.”
30. The most significant observation in these passages is that the accused person
does not have the right to decide “in what manner his defence should be assured”.
The right is to be represented by sufficiently experienced counsel of one’s choice
but the role to be played by that counsel cannot be dictated by the defendant. Thus,
in the present case, Mr Maguire was entitled to ask that Mr Barlow represent him
but he was not entitled to insist upon the status that should be conferred on Mr
Barlow in his conduct of the defence.
Page 11
31. Dzankovic v Germany (Application No 6190/09, 8 December 2009) was an
admissibility decision. The applicant complained that his request for his chosen
representative to be designated official defence counsel had been refused. The court
held that the interests of justice did not require that the applicant’s chosen counsel
be appointed official defence counsel. The application was declared inadmissible.
The applicant was still represented by the same counsel whom he wished to have
designated as official defence counsel. The reason behind the request related to the
payment of counsel’s fees from public resources. But that made no difference. What
was important was, in the words of the judgment, that he had not put forward “any
grounds making a different procedural approach necessary to ensure [that his] rights
of … defence” were secured.
32. Likewise, in the present case, the appellant has not advanced any grounds
that Mr Barlow should be designated “leading counsel” so as to ensure that his rights
of defence would be assured. As the respondent has pointed out, 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 of the code of conduct. The
deprivation, if there was one, was the denial of an enhanced payment to Mr Barlow
acting as “leading counsel”.
33. There are four applicable designations of counsel for the purposes of
determining rates of payment in accordance with the 2005 Rules. These rates of
payment relate to the categories of Queen’s Counsel; leading junior counsel; sole
junior counsel; and led junior counsel. All permutations of cases where two counsel
have been assigned and permissible under the code of conduct are provided for in
terms of legal aid payment. The provision of potential rates of payment for a leading
junior counsel is, the respondent accepts, appropriate, since junior counsel may lead
in the exceptional circumstances described in rule 20.11 of the code of conduct. It
is notable, however, that the designation of “leading junior counsel” appears in the
relevant statutory framework only for the purposes of identifying an appropriate rate
of payment in costs rules. If Mr Barlow had been able to act as leading junior
counsel, therefore, he would have been entitled to an enhanced fee. But this has
nothing whatever to do with the issue of a guarantee of a fair trial for Mr Maguire.
34. The wishes of a defendant as to his choice of counsel must be taken into
account but these are properly subordinate to the overall aim of achieving a fair trial.
Thus, it is not a question of the defendant enjoying a right to choose his own counsel
which is freestanding of the fair trial goal. Rather it is as an element of the objective
of a fair trial that the right to have counsel of one’s choice arises. For this reason, it
is not appropriate to apply the same analysis to the question of infringement of the
right as obtains in an examination of an admitted interference with a right such as
arises under article 8.
Page 12
35. This is clear from such seminal cases as Croissant v Germany (1992) 16
EHRR 135, 151, para 29 where ECtHR said:
“[I]t is for the courts to decide whether the interests of justice
require that the accused be defended by counsel appointed by
them. When appointing defence counsel the national courts
must certainly have regard to the defendant’s wishes; indeed,
German law contemplates such a course. However, they can
override those wishes when there are relevant and sufficient
grounds for holding that this is necessary in the interests of
justice.”
36. The exercise involved here is one of the courts deciding what the interests of
justice require, not whether an interference with an individual’s Convention right
has been justified. Of course, the wishes of a defendant may be pertinent to the
question of where the interests of justice lie but that is not because they have an
intrinsic value. It is because the desire of an accused person to be represented by
someone in whom he reposes trust may be directly relevant to the promotion of the
interests of justice aim.
37. Essentially the same message is conveyed in Dvorski v Croatia (2016) 63
EHRR 7 where the Grand Chamber said at para 76:
“As the Court has already held in its previous judgments, the
right set out in article 6.3(c) of the Convention is one element,
among others, of the concept of a fair trial in criminal
proceedings contained in article 6.1 (see Imbrioscia v
Switzerland (1994) 17 EHRR 441, 24 November 1993, paras
36 and 37, Series A no 275, and Salduz v Turkey [GC], no
36391/02, para 50, ECHR 2008)” (emphasis supplied)
38. It is clear from this review of the relevant authorities that the essence of the
right to choose one’s counsel lies in the contribution that the exercise of that right
makes to the achievement of the ultimate goal of a fair trial. It is not an autonomous
right which falls 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” are of obvious importance and require close
examination.
Page 13
Informed choice
39. The reasons that Mr Maguire wished to have Mr Barlow as his leading
counsel were expressed pithily in his affidavit. At para 6, he said:
“Due to the level (sic) of consultations that took place between
myself, counsel and solicitors and the work that was
undertaken by counsel and solicitor … my wish was to instruct
Mr Barlow BL as my lead counsel in the retrial. This was due
to the fact that I had confidence in Mr Barlow to appear as my
lead counsel due to his knowledge of my case.”
40. The question of advice to an accused person about his representation at a
criminal trial was considered by the High Court of Justiciary in Addison v HM
Advocate 2015 JC 105. At paras 25 and 26, the Lord Justice General said:
“25. The Law Society of Scotland Practice Rules 2011
provide that if a case requires appearance in a superior court,
the solicitor must advise his client that it is for the client to
decide whether a solicitor-advocate or counsel is instructed
(rule B8.4.l(b)). That is a sound rule as far as it goes; but the
decision of the client on [whether a solicitor advocate or
counsel is instructed] must be an informed decision. To make
such a decision the client must be advised of his options for
representation. A mere recital of those options is no more than
a formality if it is not supplemented by advice, a point on which
the Practice Rules are silent. In my view, it is the duty of the
accused’s solicitor to take all reasonable steps to ascertain
which members of the Bar and solicitor advocates experienced
in this area are, or may be, available to conduct the defence.
Only then can a worthwhile decision on representation be
made.
26. The observance of these duties may present the
accused’s solicitor with a conflict of interest, especially if he is
a solicitor advocate or if a senior member of his firm is a
solicitor advocate. This court has already adverted to the latter
problem in Woodside v HM Advocate 2009 SCCR 350 (at paras
71-74). It is a matter for concern that it continues. Even where
there is no such obvious conflict of interest, the solicitor may
nonetheless find it difficult to give wholly objective advice as
to the choice of defender from those who are available. In the
Page 14
event, any advice that he gives may be thought to lack the
appearance of objectivity.”
41. Although this admonition was based on a rule which has no equivalent in
Northern Ireland, it seems to me to contain sound guidance on how solicitors should
ensure that accused persons have sufficient information to make a proper choice as
to how they should be represented, particularly when a certificate for two counsel
has been issued. There is nothing in the evidence as to the circumstances in which
Mr Maguire made his choice to indicate that he received advice of the nature
outlined by the Lord Justice General. He should have received such advice. Of
course, in the particular circumstances of this case, even if Mr Maguire had received
that advice, it does 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 in these paragraphs are made to
reinforce the message given by the High Court of Justiciary in Addison that it is the
professional obligation of solicitors to give clear advice to accused persons of the
options available to them when a certificate for two counsel has been granted.
Conclusions
42. Rule 20.11 of the code of conduct is obviously designed to ensure that proper
representation of accused persons should be guaranteed when a certificate for two
counsel has been issued. Imposing a requirement that senior counsel be engaged,
unless none is available, is entirely consonant with that aim. There is no question of
interference with the appellant’s right under article 6. To the contrary, the rule is
designed to promote and vindicate that right.
43. In light of that conclusion, it is unnecessary to embark on an examination of
the interesting issues raised by the respondent about whether the Bar Council is a
hybrid public authority and its entitlement to regulate representation of accused
persons in the conduct of criminal trials.
44. Article 6 does 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 can be shown that the interests of justice will best be
served by having a requirement that, where a certificate for two counsel is issued, it
will, in general, be better for an accused to be represented by both senior and junior
counsel, a requirement that this be so cannot give rise to any violation of article 6.
That the interests of justice will be best served in this way is beyond serious dispute,
in my opinion. Senior counsel obtain that rank on the basis of an objective
assessment of their professional expertise and experience. Rule 20.11 does no more
Page 15
than give effect to the desirability that defendants be represented at the highest
possible standard, just as rule 4(3) of the 2012 Rules does.
45. The circumstance that that aspiration finds expression in a rule contained in
the code of conduct of the Bar does not sound on the question of the appellant’s
article 6 rights. So far from impinging on those rights, the rule is plainly designed to
uphold and vindicate them. The source of the rule is therefore irrelevant to any
possible violation of article 6.3(c). That simply does not arise.