Crown Court for Northern Ireland Decisions

 


Lees, R v [2002] NICC 2449 (25 February 2000)

Ref. HIGF3149

IN THE CR0WN COURT SITTING AT BELFAST

________

THE QUEEN

-v-

WILLIAM COLIN JOHN LEES

________

HIGGINS J

1. On 12 April 1999 William Colin John Lees (the accused) was rearraigned on Bill 5A/1997 and pleaded guilty to Counts 2 - 5 and 8 - 48. Count 1 was left on the file not to be proceeded without leave. He was committed for trial on these charges on 19 December 1996. A Criminal Aid Defence Certificate was granted to him and he was assigned as solicitor Patrick Francis McDaid of Kearney Kelly & Co. Solicitors of Londonderry. On 7 September 1999 the accused was arraigned on Bill 336A/1998 and pleaded guilty to all 19 counts on the indictment. He was committed for trial on these charges on 30 December 1998. A similar defence certificate was granted and he was assigned as solicitor Cormac McKeone of Kearney Kelly & Co. On 30 September the accused was rearraigned on Bill 169/1999 and pleaded guilty to both counts on the indictment against him. He was committed for trial on these charges on 12 May 1999. A similar defence certificate was granted and the accused was assigned as solicitor Cormac McKeone of Kelly Kearney & Co. The pleas of guilty were entered when the trials of the accused were about to commence with the swearing of a jury. There have been a considerable number of pre-trial hearings principally related to the management of these very substantial trials but also about when the defence would be ready for trial. During these pre-trial hearings the court was made aware of the very considerable work being carried out by and on behalf of Kearney Kelly & Co in preparation of the accused’s defence. The solicitor in court in attendance on counsel has been the experienced principal of the firm assigned to the accused namely Mr Brendan Kearney. Counsel instructed on behalf of the accused and who appeared before this court was Mr E Grant QC with whom appeared Mr Talbot BL. On 20 December 1999 Mr Grant QC informed the court that the accused wished to apply for leave to withdraw his pleas of guilty and to enter pleas of not guilty and to be tried on all counts in the three bills of indictment. Mr Grant has now withdrawn from the case and Mr Harvey QC has been instructed by Mr Kearney and is now briefed to make the application for leave to withdraw the pleas of guilty. While the court has been ready to hear that application since before the end of last term, for some reason unknown to the court it has yet to be made. I have already indicated on more than one occasion that the court is anxious that the application be made as soon as possible. On Friday 21 January a solicitor in another firm of solicitors applied that the defence certificate granted in the magistrates court “be transferred to his firm Madden and Finucane”. The proceedings were adjourned to enable the Legal Aid Authorities to be notified that the application was being made in case they wished to make representations. As it transpired they did not indicating by letter that it was a matter for the court. The application was then renewed on Tuesday 25 January. No reasons were advanced for “a transfer of the certificate” though the solicitor who appeared was given the opportunity to do so. Nor was any submission made setting out legislation involved or the principles which the court should apply or any matters which the court should consider on such an application nor was any authority referred to.

2. Prior to this application being moved on 25 January, Mr Kearney wrote to Madden and Finucane indicating that they would have no objection to Madden and Finucane having a defence certificate for and to have carriage of, the application for leave to change the plea of guilty, following which they would resume as the accused’s solicitors in such proceedings as would follow the ruling on the application for leave. The accused has made a statement dated 20 January in which he rejected this offer. How and why this situation has developed has not been revealed to the court. In the statement the accused stated that he “has instructed Madden & Finucane to act for him in all matters”. The next stage in the proceedings against the accused will be the application for leave in which Mr Kearney has already briefed Mr Harvey QC who I understand is willing to appear and make the application.

3. By Article 29(1) of the Legal Aid, Advice and Assistance (NI) Order 1981 (which consolidates the earlier legislation) a person returned for trial for an indictable offence shall be entitled to free legal aid in the preparation and conduct of his defence at trial if a criminal aid certificate is granted in respect of him in accordance with the provisions of Article 29. Such a person is entitled also to have solicitor and counsel assigned to him for that purpose in accordance with Rules made under the 1981 Order. By Article 29(2) a criminal aid certificate may be granted by a Magistrates Court when he is returned for trial or by a judge before which he is to be tried and the court or the judge is for the purpose of deciding whether to grant a defence certificate or not, referred to as “the certifying authority”. By Article 29(3) a criminal aid certificate shall not be granted in respect of any person unless it appears to the certifying authority that his means are insufficient to enable him to obtain such aid. By Article 29(3)(a), where it appears to the certifying authority that a person’s means are insufficient to enable him to obtain legal aid, and he is returned for trial upon a charge of murder he shall be granted a criminal aid certificate without further inquiry. By Article 29(3)(b), where it appears to the certifying authority that a person’s means are insufficient to enable him to obtain legal aid, and he is returned for trial on a charge other than murder, he may be granted a certificate, if it appears to the certifying authority that it is desirable in the interests of justice that he should have free legal aid in the preparation and conduct of his defence at the trial. Thus once the person charged satisfies the magistrate or the judge that he has insufficient means to obtain such legal assistance as he requires, in the case of a murder charge the magistrate or judge shall grant a certificate. In any other case the magistrate or judge should consider whether or not the interests of justice require a certificate to be granted and if so to grant a certificate and in any other case to refuse one.

4. The Legal Aid in Criminal Cases: Defence Certificates Rules (NI SR & O 1966 No 53) make provision for the assignment of solicitors and counsel upon the grant of a defence certificate. Rule 2(3) provides that the court or judge shall, after taking into account any representations which the person charged may make, assign to him a solicitor, to whose services the person charged shall be entitled. The solicitor assigned shall be chosen from the Register of Solicitors willing to undertake the defence of legally aided persons in criminal cases - see the Legal Aid in Criminal Cases: Legal Aid Certificate Rules ( NI SRO 1966 No 52). Rule 2(4) of the Defence Certificate Rules makes provision for the magistrate or judge to certify that the case is one in which the person charged should have the assistance of two counsel. Rule 2(6) makes provision for the instruction of counsel and “ any member of the Bar so instructed shall be regarded as assigned in pursuance of a defence certificate”. The rules make no provision for the grant of a criminal aid certificate in any other circumstances. Nor do they make provision for the transfer of certificate already granted from one solicitor so assigned to another solicitor. It would appear that neither the legislature nor the rule making authority contemplated that once granted any further application would be made in respect of a defence certificate. Nor do they make provision for the assignment of another solicitor. Thus it seems tolerably clear that the certifying authority (the magistrates court or the Crown Court) has power a) to grant a criminal aid certificate in respect of a person for the preparation and conduct of his defence at trial and b) to assign solicitor and counsel to that person for that purpose. Both powers have been exercised by the magistrates court as certifying authority and thus the requirements of the legislation and of a fair trial and legal representation for that trial have been met.

5. It is not unknown for applications to be made in the Crown Court for “a defence certificate to be transferred to another solicitor”. However an application couched in those terms would seem to be inappropriate. It would seem that what is meant or intended by such an application is that a different solicitor be assigned to the person charged. The criminal aid certificate is granted in respect of the person charged and not to or in respect of a solicitor. Such applications to the Crown Court have been made when a good and proper reason has been furnished to the court. An example would be when the same solicitor is assigned to two persons charged with the same offence or related offences and a conflict of interest between those persons arises at a later stage. The Order and rules made thereunder make provision for the grant of a criminal aid certificate either in the magistrates court when the person charged is returned for trial or ( failing that ) at the Crown Court after the judge has read the depositions or written statements. When granting legal aid the magistrates court or judge shall assign to the person charged a solicitor but only after hearing any representations which the person charged may make.

6. Article 29(4) provides that where a criminal aid certificate is granted to a person he is entitled to free legal aid in respect of work reasonably undertaken and properly done by the solicitor assigned to that person. When a person is returned for trial and a defence certificate is granted and solicitor is assigned, the solicitor must prepare his client’s defence and brief counsel on his behalf. If the charges are contested the case will be listed for trial on a specific date. Counsel will probably have consulted with the person charged. On the day listed for trial a decision may required to be made whether a jury is to be sworn or not. If a jury is sworn then the trial commences. At this point the conduct of the trial is very much in the hands of counsel on the basis of the preparatory work undertaken by the solicitor. If a jury is not required then a plea of guilty will be entered and the focus will shift to the presentation of the plea in mitigation. Up to the time when the trial commences or a plea of guilty is entered the assigned solicitor will have undertaken much work in the preparation of his client’s defence. For a different solicitor to be assigned at that stage (assuming the certifying authority had the power to do so) the judge would require a good and substantial reason for a change at that stage. The net result of such a transfer would be that the first assigned solicitor would be entitled to fees for his professional work to date and the newly assigned solicitor would be entitled to fees for his preparatory work which would probably result in much duplication. Furthermore an adjournment of the trial would probably be necessary thus incurring further fees as well as delay. Thus the implications of an application to assign a different solicitor (which I assume the application to be in this case ) at that stage in the criminal process would be substantial indeed.

7. What approach should the court adopt in an application of this nature. According to the legislation and rules a criminal aid certificate (in a case involving a charge other than murder) should be granted in respect of the person charged in the interests of justice, taking into account the circumstances of the case as well as the nature of the defence. This application has been made at a time when the accused has already pleaded guilty. The assignment of a solicitor (and counsel) by the court or Judge does not involve a consideration of the circumstances of the case or the interests of justice but does require the court or Judge to consider the representations made by the person charged, if any. Such representations may include the circumstances of the case and the nature of the defence but more probably relate to the wishes of the person charged to have assigned to him a particular solicitor, who is probably already representing him at the committal proceedings or in the Crown Court. A person charged and granted a criminal aid certificate cannot demand or require the magistrates court or Judge to assign a particular solicitor or counsel though the practice is to assign solicitor and counsel of choice where possible. Once a solicitor has been assigned, in what circumstances can another solicitor be assigned. A relevant factor for the court or Judge as the certifying authority would be the proper use of public funds. Once a solicitor has been assigned a change in that assignment should only be contemplated where a good and substantial reason has been offered to the court. The court would be required to be satisfied that the interests of the person charged, the interests of justice and the interests of the public and public funds require a new solicitor to be assigned. No reason has been put forward in this application why the court should assign a new solicitor when an experienced solicitor has already been assigned. In those circumstances this application however it is framed is refused.

8. I note that in the statement dated 20 January 2000 the accused has stated that “he has instructed Madden & Finucane to act for him in all matters”. Outside the Legal Aid Advice and Assistance (NI) Order 1981 an accused is entitled to instruct any solicitor to represent him and that solicitor is free to act for him. The arrangements in respect of payment of fees for professional work carried out by a solicitor are a private matter between the client and the solicitor. If by the statement of 20 January 2000 the accused is indicating that he has instructed Madden & Finucane to act for him in these criminal proceedings and that he has the means to discharge their and counsel’s fees for professional work undertaken then he is entitled so to do. However in those circumstances the court would be obliged to discharge the criminal aid certificate granted in the magistrates court and the solicitor assigned when the certificate was granted would be entitled to withdraw and to be paid for the professional work reasonably undertaken and properly done to date. Thereafter the accused would be responsible for discharging solicitor and counsel fees. To date I do not understand the accused to be making such an application to the court. Therefore the solicitor assigned by the magistrates’ court to represent the accused in these proceedings will remain so assigned.