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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Brownlee for Judicial Review (Northern Ireland) [2014] UKSC 4 (29 January 2014) URL: http://www.bailii.org/uk/cases/UKSC/2014/4.html Cite as: [2014] NI 188, [2014] UKSC 4 |
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Hilary Term
[2014] UKSC 4
On appeal from: [2013] NICA 57
In the matter of an application of Raymond Brownlee for Judicial Review (AP) (Northern Ireland)
Appellant | Respondent | |
Ronan Lavery QC Conan Fegan BL (Instructed by McGuigan Malone Solicitors) |
John F Larkin QC, Attorney General for Northern Ireland David Scoffield QC Peter Coll BL (Instructed by Departmental Solicitor's Office) |
LORD KERR (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Hodge agree)
The statutory scheme
"[The Department of Justice], after consultation with the Lord Chief Justice, the Attorney General and, where appropriate, the [relevant Rules Committee], and with the approval of [the Department of Finance and Personnel] may make rules generally for carrying [Part III of the 1981 Order] into effect and such rules shall in particular prescribe –
…
(d) the rates or scales of payment of any fees, costs or other expenses which are payable under [Part III]."
"The [Department of Justice] in exercising any power to make rules as to the amounts payable under this Part to counsel or a solicitor assigned to give legal aid, and any person by whom any amount so payable is determined in a particular case, shall have regard, among the matters which are relevant, to-
(a) the time and skill which work of the description to which the rules relate requires;
(b) the number and general level of competence of persons undertaking work of that description;
(c) the cost to public funds of any provision made by the rules; and
(d) the need to secure value for money,
but nothing in this Article shall require him to have regard to any fees payable to solicitors and counsel otherwise than under this Part."
"(4) Where an advocate considers that, owing to the exceptional circumstances of the case (or part of the case which is the subject-matter of the application), the amount payable by way of fees in accordance with paragraphs (2) and (3) [which made provision for the payment of standard fees] would not provide reasonable remuneration for some or all of the work involved, he may apply to the Commission for a Certificate of Exceptionality and the Commission may, in its discretion, grant such application in accordance with paragraph (5)."
"When considering an application for a Certificate of Exceptionality, the Commission shall have regard, among the matters which are relevant, to-
(a) whether the issues involved were significantly more complex than other cases involving the same offence or Class of Offence;
(b) whether the volume of evidence (including any un-used evidentiary material) was significantly greater than that in other cases involving the same offence or Class of Offence;
(c) any novel issues of law which were involved in the case; and
(d) any new precedents established in the case …"
The decision of Treacy J
"It is clear to me that the inflexibility of the impugned aspect of the scheme is preventing the applicant from being able to make his right to legal aid effective. This is a consequence of a blanket measure which makes no allowance for the exceptional and unusual circumstances which have arisen. Whilst there is much to be said for a fixed payment scheme such a scheme must not undermine the principle that lawyers should receive fair remuneration for the work they are required to do. The critical defect here is the inflexibility of the Regulations and the inability of the scheme to enable adjustments to be made even in exceptional and unusual cases where the failure to do so would lead to injustice."
The Court of Appeal decision
"… the appellant was provided with legal representatives who conducted the trial on his behalf until it was near its end at which stage he dismissed them. There is nothing to indicate that those representatives would not have continued to act in the sentencing hearing if they had not been dismissed and they, unlike newly instructed counsel, had benefitted from the overall trial fee payable."
"An accused who loses his legal representation in the course of a trial through no fault of his own should be given the opportunity to obtain alternative representation. Where he cannot do so because of the inadequacy of legal aid funding a breach of article 6 may well follow. The inflexibility of these Rules potentially raises the possibility of such an outcome. In this case, however, the material before us suggests that the accused dismissed his counsel and solicitors without any reasonable explanation at a late stage of his trial. Whether the circumstances of this case are such that even then a breach of article 6 would arise from the absence of an ability to secure further representation by counsel necessitates a careful review of the issues in the sentencing exercise. The learned trial judge will know the factual basis for the conviction, having heard the evidence. He will have the opportunity to hear from the author of the pre-sentence report and to see the psychiatric report prepared for the appellant if it is relied upon. He may wish to explore further the reasons for the decision by the appellant to dispense with his original legal team. He will be in a position to judge the materiality of previous convictions against the circumstances of the offence and the reports. All of those matters indicate that the decision as to whether the absence of legal representation gives rise to a breach of article 6 is a highly fact specific exercise which should be decided by the trial judge."
"The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible, but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer's retainer for improper motives, the court is not bound to agree to an application for a change of representation …"
"… The fact that the judge was prepared to transfer the legal aid certificate does not mean that he was saying that, whatever the consequences to the trial, new representation must be obtained, and that thereafter he would conduct the trial in accordance with whatever applications were made by new counsel. The clear implication of what the judge decided was that whilst he was content for new representation to be obtained at public expense and no doubt he hoped that it would, nevertheless he could not and did not abrogate his responsibilities to the interests of justice in the overall context of the trial and its proper conduct and management."
Events following the hearing of the appeal
"One area where the 2005 Rules were challenged recently by judicial review proceedings was on their alleged failure to provide appropriate remuneration for a sentence hearing. This arose because the defendant dismissed his counsel just before conviction and required new counsel to represent him during sentencing. However, he was unable to secure the services of counsel on the basis that the fees payable did not provide sufficient remuneration for the work involved. Essentially, this was because the new counsel would have to undertake an amount of preparation work to familiarise themselves with the case before being in a position to properly represent the defendant and, in these circumstances, counsel considered that the fees available did not provide sufficient remuneration. The circumstances which caused this situation to arise were highly unusual and entirely unforeseen."
"… the Department is content that it should make adjustments to the sentence hearing fee contained in the 2005 Rules, where a new legal team is instructed following a defendant's conviction, to better reflect the amount of work involved in preparing for and representing the defendant at the hearing. To achieve this, the Department is proposing to set fees, which could be applied retrospectively, that would be triggered by the volume of evidence served on the defendant by the Public Prosecution Service in relation to his case."
"In light of the Court of Appeal judgment, the Department is content that it should proceed and introduce enhanced sentence hearing fees in the 2005 Rules, where a new legal team is instructed following a defendant's conviction, to better reflect the amount of work involved in preparing for and representing the defendant at the sentence hearing. To achieve this, the Department considers that it would be appropriate to introduce the fees that were the subject of public consultation …"
Discussion
"… 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."