In the matter of Raymond Brownlee for Judicial Review (Northern Ireland) [2014] UKSC 4

Raymond Brownlee dismissed his legal team late in his Crown Court trial. New counsel could not be retained for sentencing because the fixed legal aid fees made no provision for preparatory work. The Supreme Court held the Rules were ultra vires for failing to address this.

Facts

Raymond Brownlee was convicted on 1 June 2012 at Belfast Crown Court of false imprisonment, threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecution case, when senior counsel indicated he felt professionally compromised and had to withdraw. After consulting his solicitor over the lunch adjournment, Mr Brownlee dismissed his entire legal team. The judge proceeded with the trial and the jury returned guilty verdicts.

The case was adjourned for sentencing and new solicitors came on record. On 3 July 2012, HHJ Miller QC extended the legal aid certificate to include senior and junior counsel, recognising the sentencing exercise would be complex (an indeterminate or extended sentence being a possible disposal). However, the Northern Ireland Legal Services Commission informed the new solicitors that the fees payable were fixed under the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended by the 2011 Rules: £100 for solicitor, £120 for junior counsel and £240 for senior counsel, with no fees for preparatory work. The 2011 Rules had removed the previous exceptionality provision. The solicitors were unable to engage any counsel, who consistently indicated that the absence of any allowance for preparation made it unfeasible to act for those fees.

Issues

The principal issue was whether the 2005 Rules (as amended by the 2011 Rules), in failing to provide for any payment for preparatory work undertaken by a new legal representative instructed at the sentencing stage, were ultra vires the rule-making power in article 36 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, read with the considerations mandated by article 37. A further issue was whether the judicial review constituted an impermissible collateral challenge to ongoing criminal proceedings.

Arguments

Appellant

Mr Brownlee argued that the inflexibility of the fixed fee regime, with no allowance for preparatory work and no exceptionality provision, made it impossible to retain counsel for the sentencing hearing, thereby denying him effective access to justice and breaching article 6 ECHR. He contended the Rules failed to reflect the time and skill required, contrary to article 37 of the 1981 Order.

Respondent

The Department of Justice contended (and the Court of Appeal had accepted) that Mr Brownlee had dismissed his legal team without reasonable explanation, that the trial judge could assess any article 6 issue during the sentencing hearing itself, and that the judicial review was an impermissible collateral challenge to the criminal process, relying on R (Kebilene) v DPP [2000] 2 AC 326 and R v Ulcay [2007] EWCA Crim 2379.

Judgment

The Supreme Court (Lord Kerr giving the leading judgment, with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Hodge agreed) allowed the appeal.

The Court rejected the Court of Appeal’s characterisation that Mr Brownlee had dismissed counsel without good reason: it was senior counsel who initiated withdrawal on grounds of professional compromise, and the appellant may have concluded he could not insist counsel continue. The trial judge’s grant of an extended legal aid certificate for senior and junior counsel demonstrated that legal representation was considered essential for a fair sentencing hearing, and indicated the judge did not regard the appellant as attempting to manipulate the system.

The Court distinguished Kebilene: the appellant was not seeking to restrain the criminal process but to enable its completion with representation. The trial judge had no power to judicially review the Department’s refusal to adjust fees, so the article 6 violation could not be cured within the sentencing hearing. Ulcay was also distinguished as concerning an attempt to abort the trial through manipulative withdrawal of instructions, not present here.

On the central issue, the Court held that article 37 of the 1981 Order requires the rule-making body to have regard to the time and skill required for particular types of criminal legal aid work. The Department had frankly acknowledged in a subsequent consultation document that the situation of a new legal team instructed at the sentencing stage had not been adverted to when the 2011 Rules were made. This was an admitted failure to have regard to a relevant factor. Lord Kerr stated that a failure to make provision for remuneration of preparatory work by a new legal representative was, to that extent, ultra vires the enabling provision. The obligations to consider cost to public funds and value for money complemented but did not extinguish the obligation to reflect time and skill.

The Court noted the warning given by Lord Clyde in Buchanan v McLean [2001] 1 WLR 2425 about the perils of inflexibility in fixed payment schemes, quoting:

The most obvious, but perhaps not the only, risk may arise from the lack of flexibility in the present Regulations. No allowance is made for any unusual or exceptional circumstances. The requirements of fairness in judicial proceedings are rarely, if ever, met by blanket measures of universal application. Universal policies which make no allowance for exceptional cases will not readily meet the standards required for fairness and justice.

Because the Department had by then accepted that the Rules required amendment and had drafted retrospective amending rules, the order of mandamus made by Treacy J was no longer necessary. The Supreme Court substituted a declaration that the failure of the rule-making body to take account of the need to provide for payment for preparatory work by a new legal representative rendered the Rules to that extent unlawful and ultra vires the powers conferred by article 36 of the 1981 Order.

Implications

The decision confirms that secondary legislation setting legal aid remuneration must genuinely reflect the statutory criteria laid down in the enabling power – here, the time and skill required for the work. Where rule-makers fail to consider a foreseeable category of case (such as new representatives instructed mid-process), the resulting rules may be ultra vires to that extent.

The judgment underlines that judicial review of legal aid remuneration is not an impermissible collateral challenge to criminal proceedings where the alleged article 6 violation cannot be cured within the trial itself – an important clarification of the limits of Kebilene.

While the Court declined to hold that fixed-fee schemes must always contain a general exceptionality provision, Lord Kerr endorsed Lord Clyde’s warning that inflexible blanket schemes risk producing unfairness, signalling that future challenges might succeed where unforeseen circumstances expose similar gaps. The case is significant for legal aid policy across the United Kingdom, demonstrating that cost containment and value for money do not override the statutory obligation to provide remuneration reflective of the work required, and that access to justice considerations remain a real constraint on the design of fixed fee schemes.

Verdict: Appeal allowed. The Supreme Court substituted a declaration that the failure of the rule-making body to take account of the need to provide for payment for preparatory work undertaken by a new legal representative at the sentencing stage rendered the 2005 Rules (as amended by the 2011 Rules) unlawful and ultra vires the powers conferred by article 36 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

Source: In the matter of Raymond Brownlee for Judicial Review (Northern Ireland) [2014] UKSC 4