The UK Supreme Court held that article 6 of the European Convention on Human Rights does not entitle a legally aided defendant to insist that a junior barrister act as his leading counsel at public expense where a Bar rule requires senior counsel unless none is available. Kevin Maguire’s wish to retain Mark Barlow in that role, founded on confidence in his knowledge of the case, was subordinate to the interests of justice. The rule promoted proper representation and did not violate the right to a fair trial.
Kevin Maguire faced criminal charges in the Crown Court in Belfast. A legal aid certificate dated 7 June 2012 entitled him to public funding for a solicitor and two counsel under article 29 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. At his first trial in November 2012 he was represented by Mark Barlow, a junior barrister described as leading counsel, and Clive Neville, a solicitor-advocate. The jury could not agree.
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Before the retrial Mr Barlow appeared before a Bar Council panel in relation to other cases in which he had led with a solicitor-advocate as junior. He admitted breaching rule 20.11 of the code of conduct of the Bar of Northern Ireland. That rule states that where legal aid has been granted for two barristers, one should be senior counsel; only where, exceptionally, senior counsel is unavailable may an experienced junior of at least 15 years’ standing lead. Mr Barlow, who is not Queen’s Counsel, told Mr Maguire that he could not act as leading counsel. Mr Maguire’s solicitors contended that this would violate article 6. The retrial proceeded in January 2015. He was acquitted of seven of eleven counts; the jury disagreed on the rest and the prosecution did not seek a further trial.
The challenge and the courts below
Mr Maguire applied for judicial review, arguing that the Bar Council’s decision impeded his choice of lead advocate and breached article 6.3(c), which he said limited his right to choose counsel only by the interests of justice. The Divisional Court dismissed the claim. Morgan LCJ treated the right as qualified, so that a defendant’s wish could be overridden where necessary in the interests of justice. Coghlin LJ regarded the rule as a fair and proportionate safeguard, intended to ensure that in murder cases or cases of exceptional difficulty the defendant, victims and the public had the benefit of senior and junior counsel and of the most able representation available. Gillen LJ held that the rule reflected the balance between the interests of the accused, the victim and the public, and that there was no violation.
Legal aid and the Bar rule
The Criminal Aid Certificates Rules (Northern Ireland) 2012 allow a certificate for two counsel where the charge is murder, the case involves substantial novel or complex issues of law or fact, or two counsel are required to protect rights under the Human Rights Act 1998. Where two counsel are certified, the rules provide for instruction of counsel together with senior counsel. Amended costs rules pay a solicitor exercising rights of audience as a solicitor, not as counsel. Mr Barlow could therefore have continued to act for Mr Maguire, but not as leading counsel attracting an enhanced fee, unless the exception in rule 20.11 applied. The label “leading junior counsel” exists in the costs rules only to identify a rate of payment.
Article 6
Article 6.3(c) entitles a person charged with a criminal offence to defend himself in person or through legal assistance of his own choosing, or to free legal assistance when the interests of justice so require. Counsel for Mr Maguire accepted that this is not an absolute right to publicly funded representation by any chosen lawyer, but argued that refusal had to be justified and proportionate, and that Mr Maguire could insist both on his chosen lawyers and on Mr Barlow’s status as leading counsel. The respondent argued that the question was simply whether the rule infringed the right to a fair trial; if it did not, no justification exercise arose.
Lord Kerr, with whom Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed, accepted the respondent’s approach. Decisions of the European Court of Human Rights, including Correia de Matos v Portugal, K v Denmark, Mayzit v Russia, Croissant v Germany and Dvorski v Croatia, show that article 6.3(c) does not let the accused decide the manner in which his defence is to be assured. Contracting states have a margin of appreciation. The right is one element of the fair-trial guarantee in article 6.1. Its concern is adequate representation and the interests of justice, not a freestanding preference comparable to a right under article 8. Courts must have regard to a defendant’s wishes, because trust in counsel can serve justice, but may override them for relevant and sufficient reasons.
Mr Maguire’s affidavit explained his wish by reference to consultations and his confidence in Mr Barlow’s knowledge of the case. He advanced no ground showing that designating Mr Barlow leading counsel was necessary to secure his defence. He was not deprived of Mr Barlow’s services, only of an enhanced payment for a leading role. There was no evidence that he had received the clear advice about available options which, as the High Court of Justiciary indicated in Addison v HM Advocate, solicitors should give when a certificate for two counsel has been granted. Even with such advice, he could not insist on the arrangement he wanted.
Why the rule did not breach article 6
Rule 20.11 is designed to guarantee proper representation once a certificate for two counsel has been issued. Requiring senior counsel, who obtain that rank by objective assessment of expertise and experience, unless none is available, accords with that aim and with the desirability of the highest standard of representation. The rule therefore promotes and vindicates article 6 rather than interfering with it. Article 6 does not confer a right to demand counsel of one’s choice at public expense independently of the interests of justice. If those interests are best served by senior and junior counsel in the ordinary case—and Lord Kerr considered that beyond serious dispute—the requirement cannot violate the article. The fact that the requirement appears in the Bar’s code of conduct is irrelevant to whether article 6.3(c) is breached.
Verdict: The Court unanimously dismissed Mr Maguire’s appeal. Article 6 did not give him the right to insist that his chosen junior barrister be funded to lead in these circumstances.
