The Supreme Court heard the case of Kevin Maguire’s application for judicial review ([2018] UKSC 17) in which it considered the application of ECHR, art 6.3(c), that every defendant to a criminal charge has the right to defend himself in person or through legal assistance of his own choosing.

The case was heard before Lord Kerr, Lord Reed, Lord Hughes, Lady Black and Lord Lloyd-Jones on 18 Oct 2017. Judgment was given on 21 Mar 2018. All justices were in agreement in the decision.

Maguire 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, one to be a senior. During the trial, he was represented by Mark Barlow, a leading junior, and a solicitor-advocate. The Jury was unable to reach a verdict and they were discharged.

Mr Barlow was disciplined by the Bar Council of Northern Ireland for acting as leading Counsel in a case where the legal aid certificate had been granted for two Counsel, one to be a senior Counsel. Mr Barlow should not have adopted the position of senior Counsel.

Maguire was tried again. He requested Mr Barlow to be his lead Counsel. Mr Barlow informed the appellant that he could not act as leading Counsel.

The appellant claimed that if Mr Barlow was not permitted to appear as his leading Counsel this would be a violation of his rights under ECHR, art 6. The Bar Council dismissed his claim. Maguire applied for judicial review of the Bar Council’s decision. The Divisional Court dismissed his application.

The issues before the Supreme Court:

Two issues were raised. Firstly, the legal aid certificate provides for an ‘instructing solicitor and two Counsel, one to be senior’ but makes no mention of a solicitor-advocate. Under the 2005 Rules there is no reference to solicitor-advocate and therefore Mr Clive Neville, who appeared as the solicitor-advocate, can only be paid as an instructing solicitor.

Secondly, the argument that the defendant’s right to a fair trial, as guaranteed under art 6, has been interfered with. Art 6.1 requires that everyone charged with a criminal offence is entitled to a fair and public hearing. Art 6.2 requires a presumption of innocence. Art 6.3(b) requires that a defendant have adequate time and facilities to prepare their defence. Art 6.3(c) establishes the right to defend yourself if through legal assistance of your choosing. It is this clause that is central to this case. The appellant’s Counsel argued that this does not mean that the defendant can request any Counsel but that it is a justified right that can only be interfered with in circumstances that can be justified. Therefore the appellant is entitled to be represented by Mr Barlow unless the refusal can be reasonably justified. The respondent’s Counsel says that this is not a case where the interference to a qualified right needs to be justified but that, instead, the rules on representation that the applicant received at his trial should be researched to ensure they have not been infringed with. The request for a particular Counsel being denied doesn’t infringe on his right to a fair trial.

ECtHR case law:

The Supreme Court relied on a number of ECtHR cases in reaching their conclusion.

The case of Correia de Mates v Portugal found that the right to a fair trial does not give the defendant the right to decide how that fair trial is secured. In the case, the defendant could not decide to refuse representation assigned to him by a judge.

In Mayzit v Russia, the defendant wished to be represented by his mother and sister. He recognised that the defence must ensure adequate representation but still pursued his desire. The right to choose one’s Counsel is not absolute. It is subject to certain limitations, especially where free legal aid and the cost to the public purse is concerned. Again, no right to decide how the right to a fair trial is achieved.

In Drankovic v Germany, a request for a chosen representation to be designated official defence Counsel was refused because no grounds were put forward as to how this would advance the defendant’s fair trial rights.

Croissant v Germany: the court must decide whether it is necessary for a fair trial that the Defendant be represented by the Counsel instructed by them.

Dvorshi v Croatia: art 6.3 is one element of the right to a fair trial. Thus the right to choose one’s own Counsel is not autonomous. Reasons and justifications must be given as to why this choice advances the right to a fair trial.

Applying this case law to the facts, it was held that Mr Maguire expressed his desire for Mr Barlow to be his lead counsel because of the number of consultations that had taken place between them. No further arguments were made as to why having Mr Barlow as lead Counsel advances Mr Maguire’s right to a fair trial.

The decision of the Supreme Court:

The Supreme Court dismissed the appeal. Art 6 provides for the right to a fair trial. Art 6.3(c) states that every defendant to a criminal charge has the right to defend himself in person or through legal assistance of his own choosing.

All justices concur that, firstly, ECHR case law emphasises adequacy of representation over choice as to the identity. Secondly, the defendant does not have the right to decide in what manner his defence should be provided or the role played by counsel. Thirdly, the defendant has not made any arguments as to why hearing Mr Barlow as leading Counsel will assure his right of defence. Finally, Mr Barlow could appear as junior Counsel. The defendant is not denied of his services. In fact, the material outcome will be the payment that Mr Barlow receives.

In conclusion, the right to a fair trial is achieved by the provision of the legal aid certificate. It was held that art 6 does not give an accused person the right to demand his choice of counsel at public expense.