In the matter of an application of Raymond Brownlee for Judicial Review (AP) (Northern Ireland)

Rules governing criminal legal-aid remuneration must reflect the time and skill required for the work covered by the statutory scheme. A rule-making body acts unlawfully where it fails to consider the preparatory work required when new representatives are instructed for sentencing. The need to control public expenditure and secure value for money complements, but does not extinguish, that obligation.

Judicial review is available where the alleged defect lies in the legal-aid rules and cannot be remedied by the criminal court during sentencing. Although fixed-fee schemes are permissible, inflexible schemes which make no allowance for unforeseen circumstances may cause injustice and remain vulnerable to challenge.

After Raymond Brownlee was convicted of serious offences, the trial judge granted a legal-aid certificate for new senior and junior counsel to represent him at sentencing. The applicable fixed fees made no allowance for the substantial preparation required by representatives who had not conducted the trial. Solicitors were consequently unable to secure counsel.

Treacy J granted judicial review and ordered the Department of Justice to make Brownlee’s right to legal aid effective. The Court of Appeal allowed the Department’s appeal in [2013] NICA 57, reasoning that the fairness question was fact-sensitive and could be considered by the sentencing judge. Brownlee appealed. The central issues were whether the rules were unlawful for failing to provide for the necessary preparatory work and whether the proceedings were an impermissible collateral challenge to the criminal process.

1. Appeal allowed unanimously. Lord Kerr delivered the judgment, with which Lord Neuberger, Lord Clarke, Lord Reed and Lord Hodge agreed. The order of mandamus was replaced by a declaration that the relevant rules were unlawful and ultra vires to the extent identified.

2. The assessment and payment of fees to a representative first instructed at the sentencing stage was a material consideration when the 2011 amendments were made. The Department admitted that this situation had not been considered. That failure to take account of a relevant factor was sufficient to justify judicial review.

3. Article 37 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 required the rule-making body to prescribe payments reflecting the time and skill necessary for particular forms of criminal legal-aid work. The failure to provide remuneration for the preparatory work required of a new representative at sentencing was therefore ultra vires the enabling power. The requirements to consider cost to public funds and value for money complemented, but did not extinguish, the obligation concerning time and skill.

4. The judicial review was not an impermissible collateral challenge under R (Kebilene) v Director of Public Prosecutions [2000] 2 AC 326. Brownlee did not seek to restrain or delay the criminal proceedings. He sought representation so that they could be completed, and the sentencing judge could not review the Department’s refusal to provide adequate remuneration.

5. R v Ulcay [2007] EWCA Crim 2379 did not govern the case. Ulcay concerned an attempt to manipulate the legal-aid system and abort a continuing trial. Brownlee wished to complete sentencing, and the new legal-aid certificate indicated that the trial judge did not regard the change of representatives as manipulative.

6. The Department’s proposed retrospective amendments would meet Brownlee’s complaint, so mandamus was no longer necessary. The court nevertheless endorsed, as a salutary obiter warning, the concern expressed in Buchanan and Advocate General for Scotland v McLean [2001] SCCR 475 about the potential injustice of inflexible fixed-payment schemes. The court did not decide that every lawful scheme required a general exceptionality provision.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court reversed the Court of Appeal and substituted a declaration of unlawfulness and ultra vires action for the order of mandamus.

2. Court of Appeal in Northern Ireland: In [2013] NICA 57, the Department’s appeal was allowed and Treacy J’s order was set aside.

3. High Court of Justice in Northern Ireland: Treacy J granted judicial review and ordered the Department of Justice to take the steps necessary to make the applicant’s right to legal aid effective. No citation is stated in the judgment.