Re Maguire Application for Judicial Review (Northern Ireland) [2018] UKSC 17

Kevin Maguire, a Crown Court defendant with legal aid for two counsel, challenged the Bar of Northern Ireland's rule requiring that one be senior counsel. The Supreme Court held this rule promoted, rather than breached, his article 6 fair trial rights.

Facts

The appellant, Kevin Maguire, was a defendant in criminal proceedings at Belfast Crown Court. On 7 June 2012 he was granted a legal aid certificate under article 29(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, entitling him to representation by a solicitor and two counsel. His first trial ended with a hung jury. He was represented by Mr Mark Barlow, a junior barrister (described as ‘leading junior counsel’), and Mr Clive Neville, a solicitor-advocate.

Before the retrial, Mr Barlow appeared before a summary panel of the Bar Council in relation to two other cases and admitted breaches of rule 20.11 of the Code of Conduct for the Bar of Northern Ireland. That rule provided that in criminal cases where legal aid had been granted for two barristers, one should be senior counsel, and that a junior might lead only exceptionally where senior counsel was unavailable and the junior was of at least 15 years’ standing. Mr Barlow consequently informed the appellant he could not act as leading counsel. The retrial proceeded in January 2015; the appellant was acquitted of seven counts, with the jury failing to reach verdicts on four counts on which the prosecution decided not to retry.

Issues

The principal issue was whether rule 20.11 of the Bar Code of Conduct, which prevented Mr Barlow (a junior) from acting as the appellant’s leading counsel, violated the appellant’s rights under article 6.3(c) of the ECHR to ‘defend himself… through legal assistance of his own choosing’. Specifically, the Court had to determine whether article 6.3(c) is a qualified right requiring justification for interference, or whether its content is shaped by the overarching requirement of a fair trial.

Arguments

Appellant

Mr O’Neill QC accepted that article 6.3(c) does not confer an absolute right to publicly funded counsel of choice, but argued it is a qualified right which may only be interfered with where justified and proportionate. He contended the appellant was entitled to have Mr Barlow and Mr Neville represent him, and to allocate Mr Barlow the role of leading counsel, unless the Bar Council could justify refusal.

Respondent

Mr Scoffield QC contended that a justification/proportionality analysis was inapt. The correct question was whether rule 20.11 infringed the appellant’s right to a fair trial at all. The claim failed at the anterior stage: there was nothing about the rule that impinged upon the fairness of the appellant’s trial.

Judgment

The Supreme Court (Lord Kerr giving the leading judgment, with whom Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed) dismissed the appeal.

Lord Kerr reviewed the Strasbourg jurisprudence including Correia de Matos v Portugal, K v Denmark, Mayzit v Russia, Dzankovic v Germany, Croissant v Germany and Dvorski v Croatia. This case law establishes that article 6.3(c) does not give an accused the right to decide how his defence shall be conducted, nor an absolute right to choose counsel. The right to choose counsel is one element of the broader concept of a fair trial under article 6.1, not a freestanding, autonomous right analogous to article 8.

The Court concluded that the correct question was what the interests of justice required to ensure proper representation, rather than whether an interference with a qualified right had been justified. An accused’s wishes as to counsel must be taken into account but are subordinate to the fair trial objective. Further, an accused has no right to dictate the status or role that his chosen counsel should occupy: Mr Maguire could request Mr Barlow’s services but could not insist that he act as ‘leading counsel’.

Significantly, Mr Maguire was not deprived of Mr Barlow’s services. Mr Barlow could still appear as junior counsel, either led by senior counsel or, if none was available, alone. The real deprivation was the denial of an enhanced fee to Mr Barlow as ‘leading junior counsel’—a designation appearing in the legal aid costs framework—which had nothing to do with a fair trial guarantee.

Lord Kerr held that rule 20.11 is designed to promote and vindicate the article 6 right by ensuring accused persons are represented at the highest standard, senior counsel having obtained that rank on an objective assessment of expertise and experience. The source of the rule in the Bar’s Code of Conduct was irrelevant, as no violation of article 6.3(c) arose. It was therefore unnecessary to consider whether the Bar Council is a hybrid public authority.

The Court also endorsed, with reference to Addison v HM Advocate 2015 JC 105, the view that solicitors owe a professional duty to give clear, informed advice to accused persons concerning their representation options where a certificate for two counsel has been granted, although this did not affect the outcome here.

Implications

The decision clarifies that article 6.3(c) ECHR does not provide an autonomous right enabling a legally aided defendant to select both the identity and role of his publicly funded counsel. The right to choose counsel is instrumental to, and shaped by, the overarching fair trial guarantee. Regulatory rules which require, save in exceptional cases, that a two-counsel defence include senior counsel do not engage article 6 adversely; they reinforce it by raising the standard of representation.

Practically, the judgment confirms that in Northern Ireland a junior counsel cannot insist on being designated ‘leading counsel’ (with attendant enhanced legal aid fees) merely because the accused prefers him, absent senior counsel being genuinely unavailable. The judgment is of particular importance to the criminal defence Bar, solicitors advising legally aided defendants, and professional regulators. It also reinforces, via the endorsement of Addison, solicitors’ duty to give informed, objective advice on representation options. The Court expressly left open the broader question of whether the Bar Council is a hybrid public authority, noting it did not need to be resolved.

Verdict: Appeal dismissed. Rule 20.11 of the Bar of Northern Ireland’s Code of Conduct did not violate the appellant’s rights under article 6.3(c) of the ECHR; rather, it was designed to promote and vindicate those rights by ensuring proper representation where a two-counsel legal aid certificate has been granted.

Source: Re Maguire Application for Judicial Review (Northern Ireland) [2018] UKSC 17