![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Brownlee, Re Judicial Review [2013] NIQB 36 (20 March 2013) URL: https://www.bailii.org/nie/cases/NIHC/QB/2013/36.html Cite as: [2013] NIQB 36 |
[New search] [View without highlighting] [Printable RTF version] [Help]
Neutral Citation No: [2013] NIQB 36 | Ref: | TRE8814 |
Judgment: approved by the Court for handing down | Delivered: | 20/03/2013 |
(subject to editorial corrections)* |
TREACY J
Introduction
Background
(i) The applicant was charged with one count of false imprisonment, one count of threats to kill, two counts of wounding with intent and one count of common assault.
(ii) Save for the count of common assault to which he pleaded guilty, the applicant contested all the charges and the matter proceeded by way of a five day trial before a jury between 28 May 2012 – 2 June 2012 at the Crown Court sitting at Laganside.
(iii) During the course of the trial the applicant says that he lost faith in his solicitor and Junior and Senior Counsel and that this relationship became "irreconcilably damaged" after the close of the Prosecution's case and just before the closing speeches. At this point the applicant's lawyers came off record and he was therefore unrepresented during His Honour Judge Miller QC's summing up.
(iv) He was convicted of false imprisonment, threats to kill, wounding with intent and common assault.
(v) It is clear that the Judge had allowed the jury to retire to consider their verdict following his summing up and directions and that this procedure was followed because of the advanced stage of the proceedings at which the developments referred to above had occurred and in order to allow the jury, who had so recently heard all the evidence, to deliver a verdict.
(vi) When the guilty verdicts were returned the Trial Judge advised the applicant to obtain representation for sentencing and it was at this point that the applicant's present solicitors came on record. On 2 July 2012 the solicitor firm's fresh certificate of criminal legal aid was extended to include Senior Counsel on the basis of the seriousness and complexities of the case.
- Solicitor - £100
- Led Junior Counsel - £120
- Senior Counsel - £240
(i) Drafting of Skeleton Argument – fee of £250 for Senior Counsel and £125 for Junior Counsel (noting that this fee is only payable where a Skeleton Argument has been directed by the Court and that no such direction had been given in this case);
(ii) Consultation Fee - £63 per hour for Senior Counsel, £31 per hour for Junior Counsel;
(iii) Mention Fee for any additional days in Court - £100 for Senior Counsel, £63 for Junior Counsel.
"I am directed by the Chairman of the Bar Council and the Bar Council to respond to your letters of 18 and 22 January 2013 ...
The view of the Council at their meeting in December was that the Council was not minded to join in this matter.
In your letter of 22 January 2013, you suggest that additional fees may be paid and you refer to a fee for a Skeleton Argument, a fee for consultation and a Mention fee which might apply.
The additional fees which you suggest would only apply if the Court had:
(i) Directed that a Skeleton Argument is presented – none has been directed in this case to date; and
(ii) For consultation with a lay client – consultation is not paid at the Court building or on the day of hearing.
It is likely that to properly prepare, Counsel would be required to visit the prison to conduct a consultation and, in consequence, would mark a fee. Within the scope and circumstances of the matter this will all require additional work. There is no provision for the necessary preparation – which would be unremunerated.
In respect of the suggestions that you make, neither of the options constitutes a trial fee and upon accepting the brief there is no basis to believe that either would in fact be paid.
It was the view of the Council that the application fee of itself did not represent adequate or fair remuneration for the work required in the case."
"Thank you for your letter of even date. I understand that you are unable to instruct Senior Counsel in a forthcoming sentencing hearing because the Counsel you have approached have indicated that the level of payment offered under the present Crown Court Cost Rules does not reflect fair or adequate remuneration. You ask whether the Northern Ireland Pro Bono Unit might assist.
The Northern Ireland Pro Bono Unit do not assist in criminal cases and to the best of my knowledge never have. This, we understand, to be within the government's remit and responsibility. Such dispute as any lawyers may have with the Legal Services Commission about fair and adequate remuneration is a matter of politics and government. The Pro Bono Unit is very limited in what it can do to assist with access to justice and only where there is no other possible source of funding or assistance. This is usually in cases of specific public import where an important point of legal precedent is engaged.
The country would be in a very sorry state if it relied on pro bono lawyers to represent defendants in criminal trials. The Pro Bono Unit could never contemplate any responsibility in the conduct of criminal trials as there simply are no resources for funding the very limited work we do at present.
It is with regret we must inform you that we are unable to assist.
Yours sincerely"
"If, upon the trial before the Crown Court of a person in respect of whom a criminal aid certificate has not been granted, his defence is undertaken by Counsel or solicitor or both at the request of the Judge, the cost thereof may be paid as if a criminal aid certificate had been granted to that person".
The reference to 36(2) is misplaced because it plainly has no application in the present case since a criminal aid certificate has been granted by the Crown Court Judge for Senior and Junior Counsel and solicitor.
The Relevant 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."
Discussion
"In our view a Trial Judge confronted with an exceptional case where Legal Aid has been refused and who is of the opinion that representation of the accused by Counsel is essential to a fair Trial may, upon being satisfied that the accused lacks the means to employ Counsel, stay the proceedings against the accused until the necessary funding of Counsel is provided."
"The overriding principle is, in my judgment, that for these serious matters, the Defendant must be able to have a fair trial and in this case I am confident that he cannot, unrepresented by counsel. I, therefore, stay these proceedings as an abuse of the process of the Court."[para 93]
"(3) Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
'A person entitled to legal aid must be able to make his right to legal aid effective [emphasis added] by having a new solicitor assigned to him.'
This language chimes with Art6 which is designed to secure the effective protection of right to a fair trial. This principle of law also extends to counsel if a legal aid certificate includes counsel.
"Art6(3)(c) provides that an accused, who does not defend himself in person is entitled to have legal assistance through his own lawyer or subject to certain conditions, by means of free legal assistance provided by the State. The State thus cannot require an accused to defend himself in person. 'Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially, if need be, is one of the fundamental features of a fair trial'."
In support of that proposition the learned authors refer to Poitrimol v France 18 EHRR 130 para34 and at p319 they state:
"The funding of legal aid is an expensive item for states. In the context of legal aid in civil proceedings, it has been held that it must be provided in accordance with Art6(1) irrespective of the economic cost. [In this connection they refer to Airey 2 EHRR 305] The same approach must apply to criminal cases under Art6(3)(c), so that budgetary considerations should not prevent effective legal assistance for accused persons who otherwise qualify under Art6(3)(c)".
"1. …As Lord Hope has indicated, there are respects in which these solicitors, remunerated in accordance with the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, (SI 1999 No 491) will not receive reasonable remuneration for the work done by them in this case. This cannot be regarded as a satisfactory state of affairs. But this does not, of itself, afford a sufficient ground for supposing that, if the solicitors continue to act, they may fail properly to discharge their professional responsibilities towards their clients.
2. Different considerations would arise if the solicitors were to withdraw, and the appellants were unable to find replacement solicitors because of the inflexibility of the 1999 fixed payment regulations. But at present this is no more than a speculative possibility. I will therefore say nothing further about the position which might then arise, especially as the Convention Rights (Compliance) (Scotland) Bill is currently before the Scottish Parliament."
[I interpose that in the present case the applicant is by contrast beyond mere speculative possibility having regard to the steps taken by his solicitor to try and "make his right to legal aid effective].
"45. ... I share the concerns which my noble and learned friends Lord Clyde and Lord Hobhouse have expressed about the potential for injustice which is inherent in the fixed payment regime. A scheme which provides for various items of work and the associated outlays to be paid for in stages, for each of which a prescribed amount will be paid as a fixed fee, will not necessarily be incompatible with the Convention right to a fair trial. But the greater the inflexibility the greater is the risk that occasionally, especially in exceptional or unusual cases, the scheme will lead to injustice."
"But I do not consider that it would be right to leave the case without making some observations on the present form of the regulations. While I have not been persuaded that they have caused, or on the present information are likely to cause, a contravention of Article 6 in the present case, it seems to me that there is a real likelihood that in another case a serious risk of a contravention may arise. If the result of the regulations is that no legal representative is available for an accused in a case where the Convention requires that he should be represented, then a breach will occur. This does not seem to me to be a fanciful possibility. We were informed that cases have occurred where as a result of the regulations no solicitor has been found to act for an accused person. The case of Glendinning in Perth Sheriff Court (February 2001) was quoted to us as an example.
…
70. I see nothing wrong in principle in a scheme which proceeds upon a basis of fixed sums for specified work. Moreover, in so far as the approach adopted recognises that different cases will require different amounts of work, and that different cases will have different degrees of profitability, the policy of adopting a basis of a fixed sum may not in itself be unreasonable if in its general operation the solicitors engaged in the work covered by the regulations, taking as it were the rough with the smooth, will find the amounts acceptable. And it is right to recognise that the scheme is not altogether rigid. In a rough and ready way account is taken of the extra costs involved in a long trial, reflecting the extra work involved. Moreover the outlays covered by the fixed sums are only the "prescribed outlays" and that phrase may be open to construction so as to allow for outlays, but not fees, which fall outside the scope of the definition. In that connection it is to be remembered that in deciding whether or not the regulations comply with the Convention every effort of construction has to be made in order to avoid such a contravention. Section 3 of the Human Rights Act 1998 requires subordinate legislation to be construed in a way compatible with the Convention "[S]o far as it is possible to do so". That approach may go some way to avoid a contravention, but if it is found to be impossible to find a compliance by any technique of interpretation, the consequence may be an invalidity in the regulations.
71. It appears that the danger has been recognised by the Scottish Executive, in that some provision for a remedy has been incorporated in the current Convention Rights (Compliance) (Scotland) Bill. This allows for the making of regulations to prevent a person being deprived of the right to a fair trial. No draft regulations were shown to us and it remains unclear what solution is to be devised. 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."
"79. …There is much to be said for schemes of legal aid which reduce the bureaucracy involved provided that they do not undermine the principle that the lawyer should receive fair remuneration for the work which he is required to do."
"As has been pointed out, the critical defect in the 1999 Regulations is their inflexibility. A more sophisticated code for predefined fixed payments might avoid the pitfalls but the First Schedule to the 1999 Regulations is anything but sophisticated. If the 1999 Regulations are to be retained as the structure, they need to be amended to incorporate an element of flexibility to give the Legal Aid Board the power to avoid breaches of Article 6 of the convention. This is apparently also the view of the Scottish Executive. It has introduced into the Scottish Parliament the Convention Rights (Compliance) (Scotland) Bill to amend certain enactments, including those relating to legal advice and assistance and legal aid, which are or may be incompatible with the convention and to enable further changes in the law where there is or may be incompatibility. Clause 8 of the Bill would amend the 1986 Act, with retrospective effect, so as to enable the fixed payment regime to be amended so as to avoid accused persons being "deprived of the right to a fair trial". This is a welcome development even though the proposed revised regulations have not yet been published even in draft."
"[15] In my opinion, if the 1999 Regulations were thought to be inflexible giving rise to incompatibility with art.6, then so must be the ABWOR Regulations in which there is also no provision for the exceptional case. There is support for this view in HM Advocate v K [2011] HCJAC 61; 2011 SLT 931 ( sub nom HM Advocate v CK) 2011 SCCR 381, to which I was referred by the procurator fiscal depute, where it is stated in 2011 S.L.T., p.935; 2011 S.C.C.R., p.387, para.12 that: "It is wholly reasonable, in our judgment, to have a system of fixed block fees covering certain areas of work, provided exceptions can be made therefrom so that additions may be made to the fee where the complexity of the case is made out and justifies this.
…
[27] In conclusion, ABWOR does not permit remuneration of the solicitor for the exceptional case. This leads to an incompatibility of ABWOR with the accused's Convention right to a fair trial. He cannot receive a fair trial because there will be no one to represent him to ensure that his case ….. is properly and adequately advanced before the court. The Lord Advocate cannot in these circumstances continue the prosecution against the accused in breach of his Convention rights. Accordingly, the complaint falls to be dismissed."
Conclusion
"Legal aid is a service which the modern state owes to its citizens as a matter of principal. It is part of the protection of the citizen's individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor. "Legal Aid for the Poor: A Study in Comparative Law and Reform" (1943) 59 LQR 250, 253 n.8