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

The Supreme Court considered whether rule 20.11 of the Bar of Northern Ireland's code of conduct and related statutory rules governing legal aid and the assignment of counsel infringed article 6.3(c) of the European Convention on Human Rights by preventing an assisted accused from insisting that particular counsel be designated as "leading counsel" and paid at public expense. The court treated the right in article 6.3(c) as an element of the overarching fair trial right in article 6.1 and held that the key inquiry is what the "interests of justice" require to secure adequate representation, not the defendant's unqualified choice of the manner in which his defence is to be conducted.

The court reviewed ECtHR authorities (including Correia de Matos, K v Denmark, Mayzit, Croissant and Dvorski) and concluded that the domestic rule requiring senior counsel to be engaged where a certificate for two counsel has been issued is aimed at promoting a fair trial and does not violate article 6. The appellant was not deprived of the services of his chosen junior counsel; the only consequence was denial of the status and enhanced payment of "leading junior counsel" which is a matter of professional regulation and payment rules rather than a Convention issue.

Background and parties

• The appellant, Kevin Maguire, was a defendant in Crown Court criminal proceedings in Belfast and was granted a legal aid certificate under article 29(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 entitling him to a solicitor and two counsel.
• Mr Maguire had been represented at trial by a junior counsel, Mr Barlow, and a solicitor-advocate, Mr Neville. After a summary panel of the Bar Council found that Mr Barlow had breached rule 20.11 of the Bar's code (which ordinarily requires senior counsel to be engaged where legal aid provides for two counsel), Mr Barlow informed the appellant that he could not act as "leading counsel."

Procedural history

• Leave to apply for judicial review was granted and the Divisional Court (Sir Declan Morgan LCJ, Coghlin and Gillen LJJ) dismissed the application ([2015] NIQB 4).
• The appellant appealed to the Supreme Court. The appeal was heard on 19 October 2017 and judgment was given on 21 March 2018.

Nature of the claim and issues

• The appellant sought judicial review on the ground that the Bar Council's decision effectively impeded his choice of counsel and violated article 6.3(c) ECHR by preventing him from having particular counsel act as his "leading counsel" at public expense.
• The central issues were (i) whether article 6.3(c) confers an absolute right to public funding of the services of counsel of the accused's choice and to dictate the role (for example, "leading counsel") that counsel should play; and (ii) whether rule 20.11 and the statutory/legal aid rules impinge on the fair trial rights guaranteed by article 6.

Court's reasoning

• The court analysed ECtHR jurisprudence and concluded that article 6.3(c) guarantees adequate representation as an element of the fair trial right in article 6.1 and does not give the accused an absolute right to decide "in what manner his defence should be assured." The proper inquiry is what the interests of justice require to secure an adequate defence rather than the defendant's unfettered preference.
• The court found that rule 20.11, read with the Criminal Aid Certificate Rules (Northern Ireland) 2012 and the costs rules, is designed to secure high-quality representation where two counsel are certified and thus promotes, rather than infringes, article 6 rights. The designation of "leading junior counsel" is principally relevant to rates of payment under the costs rules and does not affect the adequacy of representation required for a fair trial.
• The court emphasised solicitors' professional duty to give informed advice to accused persons about representation options when a certificate for two counsel has been granted.

Conclusion

The Supreme Court dismissed the appellant's challenge, holding that the impugned rules are compatible with article 6 and that the appellant was not deprived of the services of his chosen counsel.

The appeal was dismissed. The court held that article 6.3(c) does not confer an absolute right to insist on public funding for counsel of the accused's choice or to dictate the role (such as "leading counsel") to be played by that counsel; the correct test is what the interests of justice require to secure adequate representation. Rule 20.11 and the relevant legal aid and costs rules are designed to promote a fair trial by ensuring experienced representation and therefore do not violate article 6.

The applicant obtained leave to apply for judicial review; the Divisional Court (Sir Declan Morgan LCJ, Coghlin and Gillen LJJ) dismissed the application ([2015] NIQB 4). The appellant's appeal to the Supreme Court resulted in judgment given on 21 March 2018 ([2018] UKSC 17).