In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland)

The right under article 6.3(c) of the European Convention on Human Rights to legal assistance of one’s choosing is an element of the right to a fair trial. It is not an autonomous right to select publicly funded counsel or dictate counsel’s role.

The governing inquiry is what the interests of justice require. A defendant’s wishes must be considered, particularly where confidence in a lawyer may promote an effective defence, but they remain subordinate to trial fairness. A professional rule generally requiring senior and junior counsel where legal aid authorises two counsel is compatible with article 6.3(c). Such a rule promotes competent representation and requires no proportionality justification as an interference with an independent right.

The appellant received legal aid authorising a solicitor and two counsel for criminal proceedings. After his first trial ended without a verdict, he wished a junior barrister who had already represented him to act as leading counsel at the retrial. Rule 20.11 of the Bar of Northern Ireland’s code of conduct required one of two legally aided barristers to be senior counsel unless, exceptionally, senior counsel was unavailable.

The appellant sought judicial review, alleging that the rule violated his right under article 6.3(c) of the European Convention on Human Rights to legal assistance of his own choosing. The Divisional Court dismissed the claim in [2015] NIQB 4. The central issue on appeal was whether article 6.3(c) conferred a qualified right to the appellant’s chosen publicly funded arrangements, requiring any interference to be justified, or whether the arrangements fell to be assessed directly by reference to the interests of justice and the fairness of the trial.

1. The appeal was dismissed unanimously. Lord Kerr delivered the judgment, with which Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed.

2. Article 6.3(c) is one component of the fair-trial guarantee in article 6.1. Its purpose is to secure adequate representation and thereby contribute to a fair trial. It does not confer an autonomous entitlement to choose publicly funded counsel independently of the interests of justice. The proportionality analysis ordinarily used for an admitted interference with an intensely personal right, such as article 8, was therefore inapt.

3. The applicable inquiry is what the interests of justice require. A defendant’s wishes must be taken into account, but they are subordinate to the overall aim of achieving a fair trial. Those wishes may nevertheless carry weight where representation by a trusted lawyer would assist the proper conduct of the defence. The domestic authorities may override the defendant’s preference where relevant and sufficient grounds show that the interests of justice require another arrangement.

4. The right to choose a lawyer does not include a right to determine the manner in which the defence is organised or the status assigned to that lawyer. The appellant could request that the junior barrister represent him, but could not insist that he act as leading counsel. The barrister remained able to act as junior counsel with senior counsel or, if senior counsel was unavailable, alone. The practical dispute concerned an enhanced rate of payment for a leading junior, not a safeguard necessary to secure a fair trial.

5. Rule 20.11 of the Bar’s code of conduct was designed to secure proper representation when two counsel had been authorised. Its general requirement for senior and junior counsel was consistent with rule 4(3) of the Criminal Aid Certificates Rules (Northern Ireland) 2012 and promoted the highest available standard of representation. It therefore upheld rather than interfered with the appellant’s article 6 rights. The rule’s location in a professional code did not alter that conclusion.

6. Lord Kerr also approved as sound guidance the proposition that solicitors should give an accused clear and objective advice about available representation, particularly where a certificate for two counsel has been issued. This observation did not affect the result: even with such advice, the appellant could not insist upon his chosen barrister acting as leading counsel.

7. It was unnecessary to determine whether the Bar Council was a hybrid public authority or the extent of its regulatory authority over representation in criminal trials.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously in [2018] UKSC 17.
2. Divisional Court of the High Court of Justice in Northern Ireland: Dismissed the judicial review challenge in [2015] NIQB 4, holding that the right to chosen counsel was qualified and that rule 20.11 was compatible with article 6.3(c).