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ECHR, art 6 does not give a right to demand counsel of choice at public expense

Re an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17

Related Member(s):
Aidan O’Neill QC (Scot) QC, Anita Davies
Related Practice Area(s):
Human Rights, Public Law
Court:

The appellant was a defendant in criminal proceedings in the Crown Court in Belfast. A legal aid certificate entitled him to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. During his first trial, he was represented by a junior barrister and a solicitor-advocate. The jury were unable to reach a verdict and were discharged. The appellant was tried again and wished to have the same barrister as lead counsel. In the meantime, however, the barrister had been disciplined by the Bar Council of Northern Ireland on the basis that the Bar Council’s rules provided that where a certificate had been granted for two counsel, unless there were exceptional circumstances meaning that a senior counsel was not available, he could not act as leading counsel. The barrister therefore informed the appellant that he could not act as leading counsel.

In dismissing the appeal against dismissal of an application for judicial review of the Bar Council’s decision, the Court examined the relevant ECHR case law, which emphasised adequacy of representation over freedom of choice as to the identity of counsel. The fundamental basis of the right guaranteed by art 6.3(c) is that the legal representation should be conducive to a fair trial, rather than conferring complete freedom to an individual defendant to choose the lawyer by whom to be represented. A defendant does not have the right to decide in what manner his defence should be assured – the right is to be represented by sufficiently experienced counsel of one’s choice, but the role to be played by that counsel cannot be dictated by the defendant.

Aidan O’Neill QC and Anita Davies were involved in this case.