High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neutral Citation No. [2015] NIQB 4	Ref:	MOR9509
Judgment: approved by the Court for handing down	Delivered:	19/01/2015
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ______ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) _______ A's Application [2015] NIQB 4 IN THE MATTER OF AN APPLICATION BY A FOR JUDICIAL REVIEW ________ AND IN THE MATTER OF A DECISION OF THE GENERAL COUNCIL OF THE BAR OF NORTHERN IRELAND _______ MORGAN LCJ, COGHLIN LJ, GILLEN LJ _______

MORGAN LCJ

[1] The applicant is a defendant in criminal proceedings. He has been assessed as eligible for criminal legal aid and has been granted a criminal aid certificate under Article 29 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 ("the 1981 Order"). The District Judge certified that the interests of justice required that the applicant should have the services of two counsel to conduct his trial. By the present application the applicant challenges a decision of the Bar Council which, it is asserted, prevents him from instructing his representative of choice, Mr Mark Barlow B.L., to act as lead counsel in his trial. Mr O'Neill appeared for the applicant was assisted by Mr O'Rawe who acted on a pro bono basis and Mr Scoffield QC and Mr Sayers appeared for the Bar Council.

Background

[2] The applicant faced trial on 13 counts of indecent assault and sexual assault on a male covering the period from June 2005 to June 2010. On 1 June 2012 a certificate for legal aid allowing representation by two counsel was granted by reason of the case appearing to present exceptional difficulty. On 28 November 2012 the trial began before Belfast Crown Court and the applicant was represented by Mr Mark Barlow, Mr Clive Neville, solicitor-advocate, and Mr Chris Mitchell, solicitor, both of Trevor Smyth & Co., solicitors. At the end of the trial in December 2012 the jury failed to reach a verdict and was discharged. A re-trial was scheduled to take place on 13 November 2013.

[3] The Code of Conduct of the Bar of Northern Ireland ("the Code") had at the relevant time a specific provision dealing with the grant of legal aid for two counsel at paragraph 20.11.

"20.11 In criminal cases where legal aid has been granted for two barristers one should be a Senior Counsel. Where, exceptionally, a Senior Counsel is unavailable, it is permissible for a Junior to lead. This Junior should be experienced and be of not less than 15 years' standing."

Mr Mulholland QC, Chairman of the Bar Council until August 2014, stated that paragraph 20.11 reflected the Bar Council's position that two counsel should mean a junior and a senior counsel. One junior counsel can appear on their own if they can deal with the case fairly and in the interests of justice but if the case requires more than one counsel due to its complexity and gravity there must be one senior leading a junior. Mr Mulholland said that paragraph 20.11 was plainly directed at the protection of defendants. He referred to the Bar Council's document Reform of legal representation by way of criminal aid in the Crown Court which was a response to a consultation carried out by the Northern Ireland Courts and Tribunals Service and which stated:

"The quality of representation in the most serious criminal cases through the retention of senior and junior counsel working together in cases that merit two counsel is an intrinsic part of ensuring proper representation is afforded to an accused in the system of justice in Northern Ireland. It is in the public interest that such high standards continue."

[4] On 16 November 2012, just prior to the commencement of the trial, Mr Barlow received correspondence from the Professional Conduct Committee of the Bar Council indicating that there had been a complaint that he had breached the Code by appearing as the only counsel in a case in September 2012 leading a solicitor advocate where a certificate for two counsel had been given. In March 2013 he was advised that there was a further complaint that he had similarly led a solicitor advocate, in a case where a certificate for two counsel had been given, in December 2012. In each case Mr Barlow explained that the clients were fully advised of their entitlement to instruct senior counsel but they indicated that they wished Mr Barlow to conduct their cases. Mr Barlow was paid the fee for a leading junior in each of the cases.

[5] A hearing of the complaints took place before the Professional Conduct Committee Summary Panel on 4 September 2013. Mr Barlow was represented by Mr George QC, the head of his former chambers in England. After a long discussion about the exceptionality provision in the rule Mr George accepted that Mr Barlow was in breach because no steps had been taken to ascertain whether senior counsel was available. He was reprimanded and ordered to pay a fine of £500. On 5 September 2013 Mr Barlow wrote to the PCC seeking clarification on whether it was permissible for him to continue to act as a leading junior in a number of cases including the applicant's case. By letter of 1 October 2013 the PCC advised as follows:

"Notwithstanding your prior acceptance of instructions in these matters, the rules remain clear as to the particular circumstances under which Junior Counsel are entitled to act as lead Counsel in a Crown matter.

We attach for your attention a further copy of the determination of the panel in your case and remind you of the importance of complying with the code of conduct."

[6] In October 2013 the applicant wrote to the Bar Council setting out his wish to have Mr Barlow lead in his case notwithstanding that Mr Barlow had explained that doing so would cause him to be in breach of the Code. On 4 November 2013 the Bar Council replied indicating that an experienced judge had clearly deemed that the applicant required a senior counsel as well as junior counsel and that appointment of barristers as senior counsel was made only after a stringent selection process and reflected the experience and ability of the most able members of the profession. The applicant was entitled to the benefit of representation by senior counsel. Mr Barlow could remain in the case as junior counsel or, if the applicant wished Mr Barlow to lead, he was entitled to waive his right to senior counsel.

[7] By letter dated 29 January 2014 the applicant's solicitors contended that paragraph 20.11 of the Code was the only obstacle inhibiting his ability to instruct his counsel of choice and, in light of his choice, to be represented by two counsel. That was in breach of his Article 6 rights. The letter also submitted that the Bar Council had a residual discretion under the Code as to whether to take disciplinary proceedings against Mr Barlow and asked that such discretion be exercised in Mr Barlow's favour. The response on 13 March 2014 stated that it was difficult to see precisely how the applicant's Article 6 rights were being adversely affected. The applicant's solicitor again wrote to the Bar Council on 25 March 2014 making submissions relying on the applicant's right under Article 6(3)(c) of the Convention to defend himself in person or through legal assistance of his own choosing. Since the Bar Council was a public body it was therefore under a duty to comply with the Convention.

[8] On 29 April 2014 the Bar Council provided its response which stated:

"the operation of section 20.11 of the Code of Conduct of the Bar of Northern Ireland does not give rise to an interference with the applicant's Article 6(3) right to legal assistance of his own choosing. Section 20.11 is a rule of conduct, applicable in legally aided cases, by which it is sought to ensure that cases meeting such criteria involve counsel whose appointment as Queen's Counsel recognises that particular experience and expertise. This is clearly a safeguard put in place in furtherance of the interests of justice and for the protection of defendants.

… it is the view of the Council that the applicant may not, as a matter of right, avail of two junior counsel under Rule 4(5)(b) [of the Criminal Aid Certificate Rules (Northern Ireland) 2012]. As such, there is no breach of Article 6(3)(c) ECHR."

The Bar Council did not accept that a residual discretion in respect of enforcement of the Code fell to be exercised by the Council. The criminal proceedings against the applicant now stand adjourned pending the outcome of this application which was launched on 9 June 2014.

Statutory Background

[9] Article 6 ECHR is given force in domestic law by the Human Rights Act 1998. The relevant provisions are as follows:

"Article 6 Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

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…"

[10] Article 29 of the 1981 Order is headed Free legal aid in the Crown Court and provides inter alia that any person returned for trial for an indictable offence shall, if granted a criminal aid certificate, be entitled to have solicitor and counsel assigned to him for the purpose of the preparation and conduct of his defence at trial. Article 36 gives the Department of Justice, after consultation, the power to make Rules prescribing the manner of such assignment. The Rules applicable to this grant of legal aid were the Criminal Aid Certificate Rules (Northern Ireland) 2012 (the 2012 Rules) which came into operation on 16 April 2012. Rule 4 states:

"Assigning solicitors and counsel: free legal aid in the Crown Court

4.—(1) When granting a criminal aid certificate under Article 29(2) of the Order, the certifying authority shall, after taking into account any representations which the applicant may make, assign a solicitor who is practising in Northern Ireland and is willing to undertake the defence of legally aided persons in criminal cases.

(2) The assisted person shall be entitled to the services of any solicitor assigned under paragraph (1).

(3) Any member of the Bar who is practising in Northern Ireland and is willing to appear as counsel for legally aided persons in criminal cases may be instructed, on behalf of the assisted person, by the solicitor assigned under paragraph (1), and, in any case in which the certifying authority has granted a certificate as provided for under paragraph (5)(b), one such member of the Bar and a member of the Bar, being one of Her Majesty's Counsel who is practising in Northern Ireland or a senior counsel practising outside of Northern Ireland, may be so instructed.

(4) Any member of the Bar instructed as provided under paragraph (3) shall, for the purposes of the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) SR (NI) 2005/112, be regarded as having been assigned in pursuance of a criminal aid certificate under Article 29 of the Order.

(5) A criminal aid certificate granted under Article 29 of the Order—

(a) includes representation by one counsel; and

(b) may include representation by two counsel only in the cases specified and in the manner provided for by the following provisions of this rule.

(6) Where the charge is one of murder, or the case appears to present exceptional difficulties, the certifying authority may certify that in its opinion the interests of justice require that the assisted person shall have the services of two counsel.

(7) For the purposes of paragraph (6), the term "exceptional" means that the case for or against the assisted person involves substantial novel or complex issues of law or fact, such that it could not be adequately presented by one counsel.

(8) Every application for a criminal aid certificate in respect of two counsel shall be made in writing, in such form as the Department may direct, specifying:

(a) the terms of the certificate sought and the grounds of the application; and, where the charge is other than murder,

(b) which of the conditions in paragraph (7) is relied upon in support of the certificate sought, and on what grounds it is contended that each such condition is fulfilled.

(9) The certifying authority may, before granting a criminal aid certificate in respect of two counsel, require written advice from any counsel already assigned to the applicant on the question of what representation is needed in the proceedings.

(10) The certifying authority making a decision whether to grant a certificate in respect of two counsel shall record the reason for the decision in writing, in such form as the Department may direct, stating whether each of the conditions relied upon in support of the certificate granted or sought is fulfilled.

(11) Without prejudice to paragraphs (6) and (7), where a judge of the court before which the assisted person is to be tried is of the opinion that in the interests of justice a criminal aid certificate in respect of two counsel must be granted in order to protect the assisted person's rights under the Human Rights Act 1998, the judge shall grant such a certificate."

[11] The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 as amended (the 2005 Rules) provide for the payment of counsel and solicitor. Solicitors may appear in, conduct, defend and address the court in any proceedings in the Crown Court by virtue of section 50 of the Judicature (Northern Ireland) Act 1978 and Rule 4A provides for enhanced costs for a solicitor who exercises certain aspects of that right:

"Enhanced costs where a solicitor conducts trial or hearing

(1) Where a solicitor exercising his right of audience under section 50 of the Judicature (Northern Ireland) Act 1978 conducts a trial or hearing without counsel he shall be entitled to an enhancement of his costs in accordance with this rule.…

(4) This rule also applies where a criminal aid certificate was granted for two counsel and a solicitor conducts the trial or hearing with or without a second counsel."

It is apparent, therefore, that a solicitor cannot avail of the enhanced fee merely by appearing in the proceedings or addressing the court. He must conduct the trial or hearing in order to avail of the enhanced fee.

[12] In Rule 2 of the 2005 Rules counsel is defined as including counsel assigned under a criminal aid certificate granted under Article 29 of the 1981 Order. In effect, by virtue of Rule 4(4) of the 2012 Rules counsel instructed by the assigned solicitor is thereby assigned. There is no such provision for a solicitor conducting a trial or hearing instructed by a fellow solicitor. Where junior counsel appears in a legally aided criminal case in which there is a certificate for two counsel there are different rates of remuneration depending on the role performed. Junior counsel may be paid as leading junior counsel, sole junior counsel or led junior counsel depending on the circumstances.

[13] The written application for representation by two counsel in this case is contained within the papers. The name of the person making the application was given as Adrian Harvey – Trevor Smyth and Co. Solicitors. The form provides for the provision of information as to why such a certificate should be granted. This was not a murder case in which such a certificate is automatically granted. It was contended that this was a case in which there were substantial novel issues of law or fact such that it could not be adequately presented by one counsel. The grounds for that assertion were:

"Historical domestic sex abuse case involving stepson over a period of 7 years from age 15. Issue of law in relation to the admissibility of purported handwritten and detailed suicide note from stepson. Stepson makes admissions in witness statement to abusing drugs at time of alleged offences namely ecstasy."

It was also submitted that there were substantial complex issues of law or fact such that the case could not be adequately presented by one counsel on the following grounds:

"Large number of incidents reflected by 13 specimen counts. Alleged abuse of stepson from the age of 15. Involvement of social services with both families will be subject to third-party applications."

The application form appears to be signed by Mr Harvey and dated 1 June 2012.

[14] The District Judge has completed the remainder of the form. In that portion of the form there are three boxes that may be ticked by the judge. The first is for murder, the second is for substantial novel issues of law and fact and the third is for substantial complex issues of law or fact. In respect of the latter two boxes there is a space for the provision of reasons. None of the boxes are ticked and no reasons are provided in the allocated spaces. In the area for the decision the box for "granted" is ticked and above it is written "See applic". The form is then signed and dated by the District Judge.

[15] The Criminal Aid Certificate was issued on the same date. The Certificate recorded that the defendant had insufficient means and that it was desirable in the interests of justice that he should have free legal aid, granted the Certificate and assigned to the defendant as solicitor:

"Solicitor name:

Solicitor firm:

Trevor Smyth and Co Solicitors"

The Certificate then went on to certify the opinion of the District Judge that by reason of the case appearing to present exceptional difficulty the interests of justice required that the defendant should have the services of two counsel.

[16] It may be that the District Judge was satisfied by the fairly sparse reasons advanced to justify the issue of a certificate for two counsel on both grounds as submitted by the applicant but the requirement under Rule 4(10) of the 2012 Rules is to record the reasons in writing in respect of each of the grounds. Secondly, Rule 4(1) of the 2012 Rules provides for the assignment of a solicitor. The Certificate in this case has identified a solicitors' firm but has not assigned a solicitor. We also understand that it is proposed to instruct a solicitor from the same firm to appear as an advocate. Such a solicitor could only, of course, claim an enhanced advocacy fee if he could demonstrate that he had conducted the trial or hearing but if that solicitor has not been assigned by the District Judge it is difficult to see how he could make any claim for payment on foot of the legal aid certificate.

[17] We did not receive detailed submissions on the interpretation of the 2012 Rules in the course of the hearing but it seems unlikely that Rule 4(1) is satisfied by identifying a firm as the assigned solicitor. The first reason is that the express terms of the Rule require the assignment of a solicitor and not a firm. Secondly, one of the critical functions of the Rules is to ensure that any criminal defendant has the opportunity for professional representation at the appropriate level for the charges at issue irrespective of his means. When assigning a solicitor the court has to be satisfied that the assigned solicitor is competent to provide the required representation. If the court merely identifies a firm it has no control over the assignment of the solicitor who provides the service. Thirdly, we were referred to the decision in Addison v HM Advocate [2014] HCJAC 110. That case emphasised the need for the court to be satisfied that persons accused of serious crimes were properly informed of their right to the services of counsel and noted the potential for a conflict of interest where the solicitor giving the advice proposed to represent the client himself. If the certifying authority merely identifies the firm the court will not even be aware of the existence of such a potential conflict where the firm proposes to conduct the trial or hearing through one of its solicitors.

[18] Although the legal aid issues are not directly material to the outcome of this application certifying authorities must be alert to their obligations to comply with the governance arrangements in respect of the expenditure of these considerable sums of public money. We are mindful of the tremendous caseload of District Judges in the Magistrates' Courts where 50,000 cases per year are processed. We consider, however, that Rule 4 of the 2012 Rules places an emphasis on written applications and reasons in writing which must be observed in the interests of the proper scrutiny of public expenditure.

The Code

[19] The terms of the Code of Conduct of the Bar of Northern Ireland applicable at the time that this case was due to be heard are set out at paragraph 3 above. Mr Barlow has indicated his concern that he will be in breach of the Code if he appears leading a solicitor advocate and he has good reason to fear that he would be found in breach having regard to the earlier disciplinary proceedings against him. There are, however, two reasons to question whether this provision of the Code is engaged where counsel appears with a solicitor advocate.

[20] First, the history of the relevant rule was set out by Mr Potter, the chairman of the Professional Conduct Committee. It began with the Bar Library Handbook issued in December 1979 which provided as follows:

"In criminal cases where legal aid for two counsel has been granted, one counsel should be a silk.

Where exceptionally a silk is not available it is permissible for a junior counsel to lead but he should be an experienced junior (not less than eight years standing should be taken as a general guide)."

In 1979 there was no enhanced fee for a solicitor who conducted a trial or hearing. The relationship between counsel and solicitor remained that of the solicitor instructing counsel. The rule, therefore, was a rule about professional conduct between counsel where a certificate for two counsel had been granted.

[21] A Code of Conduct was first promulgated by the Bar in January 1991. At paragraph 18.14 it retained the rule with largely the same wording except that the qualification period for standing was increased to 10 years although provision was made for a junior of lesser standing to lead in exceptional circumstances. The same provision was retained in a revision of the Code introduced on 6 March 2003. The Code was further revised on 27 May 2010 where the qualification period for standing was increased to 15 years and the exceptionality provision for a junior of lesser standing was excluded. It could be argued, therefore, that the history of the rule supports the view that it is a rule applying only to cases in which two counsel are instructed and governs the circumstances in which junior counsel can appear in such cases. If that is right it does not apply to a case such as this where it is proposed to instruct one counsel but also to claim an enhanced fee for a solicitor who would have to show that he conducted the trial or hearing.

[22] Secondly, there is some support for that interpretation from the wording itself. The first sentence of paragraph 20.11 of the Code clearly contemplates the instruction of two barristers. The reference at the end to "one should be a Senior Counsel" clearly contemplates the instruction of a second barrister. The next sentence makes it permissible for a junior to lead where exceptionally Senior Counsel is unavailable. It is arguable, however, that since the first sentence is predicated upon the proposition that two barristers have been instructed the second sentence refers to junior counsel leading another barrister. If that is correct the rule does not bite on whether junior counsel can lead a solicitor. There is no other rule within the Code prohibiting counsel from leading a solicitor.

[23] Neither of these points was canvassed before the Summary Panel of the Professional Conduct Committee which dealt with the proceedings against Mr Barlow. In the absence of full argument on these issues it would be inappropriate to come to any view about the proper interpretation of the rule. In any event there is no challenge within these proceedings to the interpretation favoured by the Professional Conduct Committee on the basis of which Mr Barlow was disciplined.

Submissions

[24] Mr O'Neill submitted that in light of the certification by the District Judge it followed that the interests of justice required that the applicant should have the services of two counsel. He submitted that the starting position was that the choice of legal assistance was a right protected under Article 6 (3) (c) of the ECHR and that good reason was required to justify any interference with his choice. He accepted that the right was not absolute but submitted that the case law of the Court established that the choice of legal representation could only be overridden if there were relevant and sufficient grounds (see Croissant v Germany (1992) 16 EHRR 135). That required a proportionality assessment. The need for relevant and sufficient grounds was also supported by Re Doherty's Application for Judicial Review [2002] NI 11.

[25] Secondly, there was no doubt that Mr Barlow was available, qualified and willing to act for the applicant as his lead counsel in the forthcoming retrial. There was, therefore, no need for other counsel to be assigned or appointed as his lead counsel. The Code as interpreted by the Professional Conduct Committee was inflexible. We note that Mr Barlow was only qualified to obtain a fee as a leading junior if his period of practice in England counted towards the 15 years required by the 2011 legal aid costs rules. It appears that this was accepted in earlier cases.

[26] Thirdly, the onus lay on the respondent to justify the interference with the applicant's choice of legal assistance or to show that the interference was proportionate. The Code imposed a blanket and inflexible rule which required that senior counsel be instructed as leading counsel despite the client's own wishes, the competence, experience and expertise of available junior counsel and the relative lack of expertise or experience of such senior counsel who happened to be available for instruction. The imposition of such an inflexible rule did not make proper allowance for exceptionality in some cases of junior counsel of long-standing who were judged to be the best counsel for the particular trial in terms of their experience and expertise. Such inflexibility gave rise to unlawfulness (see Mc Lean v Buchanan [2001] 1 WLR 2425 JCPC and Re Brownlee [2013] UKSC 4).

[27] In support of the last submission the applicant relied on correspondence in March 2011 between the then chair of the Bar Council and the Minister of Justice concerning the proposed 2011 legal aid costs rules. The chair of the Bar Council had indicated that there was no practice in this jurisdiction of instructing two junior counsel where a certificate for two counsel was granted and sought an amendment to the proposed rules to provide that senior and junior counsel should be instructed in such cases. The Minister replied noting that in the financial year 2009/2010 a total of 103 claims representing 13% of all two counsel certificates had provided for leading junior counsel. The rules as implemented provided for the costs of leading junior counsel as long as the applicant had at least 15 years' experience but did not require the instruction of senior counsel where a certificate for two counsel had issued.

[28] Mr Scoffield submitted that there was no arguable case that the applicant was not entitled to have Mr Barlow instructed on his behalf. The sole issue was whether he was entitled to have Mr Barlow instructed as lead advocate. The effect of the Code was that in legally aided cases meeting the test for two counsel one should be a senior counsel save exceptionally where senior counsel is unavailable. That policy takes into account the triangulation of interests espoused by Lord Steyn in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91:

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public"(emphasis added by respondent)

The respondent submitted that the provisions of paragraph 20.11 of the Code sought to ensure that those representing accused persons in serious criminal cases were sufficiently competent and qualified to do so, an objective acknowledged by this court in R v Bothwell [2006] NICA 35.

[29] Even if it were accepted that the right to choice of counsel included a right in respect of the precise capacity in which a junior counsel could act the issue of breach has to be considered in the context of the general right to a fair trial protected by Article 6(1) of the Convention. Since in this case Mr Barlow could appear for the applicant either as sole junior counsel instructed by a solicitor or with senior counsel it was submitted that the provisions of the Code did not operate to create any unfairness to the applicant; consequently there was no breach.

[30] The submission by the applicant that rule 20.11 imposes an obligation to instruct any available senior counsel whatever their expertise and experience is wrong. By virtue of Rule 4.08 of the Code a barrister is under a duty to accept a brief to appear in any court in which that barrister holds out for practice having regard to experience and seniority but Rule 4.11 provides that a barrister should decline to act in any case which is beyond his competence. The combination of these Rules ensures that only those fit to conduct the case are available to be instructed.

[31] The respondent submitted that the proper analysis in this case was the consideration of the fairness of the proposed trial but if a proportionality assessment was appropriate it was submitted that the provisions of rule 20.11 were plainly rationally connected to the legitimate aim of securing appropriate representation in legally aided criminal cases meriting a certificate for two counsel and fell within the range of reasonable alternatives that might be directed at that objective.

[32] The Order 53 Statement argued that the respondent had acted unlawfully in not exercising its discretion not to pursue the applicant by way of disciplinary proceedings. The respondent submitted that this was a matter for the Professional Conduct Committee and that the decision could only be made in the event of breach taking into account all material considerations. The skeleton argument for the applicant did not pursue the point and we consider that the answer to the primary question will render that issue redundant one way or the other. We did not therefore, consider it further.

Consideration

[33] Paragraph 1.08 of the Code provides that the Bar Council deals with the maintenance of the standards, honour and independence of the Bar and through its Professional Conduct Committee receives and investigates complaints against members of the Bar in their professional capacity. In appropriate cases the Professional Conduct Committee deals with matters of discipline through its Summary Panel or prosecutes complaints before a Disciplinary Committee of the Inn of Court of Northern Ireland.

[34] It does not exercise these powers on the basis of any statutory authority although there is a legislative proposal to provide for regulation of the exercise of such powers. We are satisfied, however, that the nature of these functions and the context in which they are exercised makes the respondent a body exercising functions of a public nature within the meaning of section 6(3)(b) of the Human Rights Act 1998 in respect of those powers and we are further satisfied that this application is directly concerned with the exercise of those powers. We accept, therefore, that the applicant is entitled to rely on the Convention rights in this application.

[35] The right of an applicant to counsel of his choice has been considered in Croissant v Germany (1992) 16 EHRR 135 which was followed by the Privy Council in McLean v Buchanan [2001] 1 WLR 2425. The applicability of those principles has recently been confirmed by the ECtHR in Dvorski v Croatia [2013] ECHR 25703/11. The first principle to be deduced from this case law is that the requirements of Article 6 (3) are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 (1) and applied in the context of the requirement for the Court to evaluate the fairness of the criminal proceedings as a whole (see para 108 of Dvorski).

[36] Secondly, the choice of legal representation is a qualified right. The defendant's wish to have particular legal assistance may be overridden where there are relevant and sufficient grounds for concluding that this is necessary in the interests of justice (see para 89 of Dvorski). We accept that it is for the public authority to demonstrate those grounds. Thirdly, in examining the fairness of the trial it is necessary to ensure that the defendant effectively participates and that he has the opportunity to organise his defence and to put all relevant defence arguments before the court.

[37] The letter of 29 April 2014 from the Bar Council, a portion of which is set out at paragraph 8 above, shows that the purpose of the rule is to ensure that cases in which a certificate for two counsel is granted in the interests of justice have counsel who have the particular experience and expertise recognised by their appointment as senior counsel. That purpose is plainly designed to serve the interests of defendants generally and contributes to the fairness to defendants required by the triangulation of interests espoused by Lord Steyn.

[38] It was submitted that the rule gave rise to inflexibility which prevented consideration of exceptional cases. By analogy with the decisions in McLean v Buchanan and Re Brownlee Mr O'Neill argued that the inflexibility gave rise to unlawfulness. I do not accept that the cases are analogous. In both of the cases upon which Mr O'Neill relied the core issue was whether the defendant was going to be able to secure representation at all. It is common case that the rule does not prevent a defendant from instructing junior counsel of his choice. The inflexibility, if any, relates only to the designation of that particular counsel's role.

[39] It was further contended that the rule went further than the 2011 legal aid costs provisions which required junior counsel to have 15 years standing before he could claim the fee as a leading junior. Arguably the legal aid rule is not inconsistent with the Code. The Code recognises that in exceptional circumstances junior counsel of 15 years standing should be able to act as leading counsel and the legal aid costs rules obviously have to make provision for payment in such circumstances. It is entirely consistent, therefore, for the legal aid costs rules to provide for payment to junior counsel of 15 years standing as leading counsel.

[40] Even if there is some difference of emphasis between the legal aid costs rules and the Code I consider that it relates to the extent to which a defendant should be protected by the availability of counsel of appropriate experience and expertise. The judgement as to where to draw the line in such circumstances cannot be definitively established. It requires a balance to be struck between the interests of the applicant and in this case the public interest and the interests of defendants generally. I consider that the balance struck in this case is well within the area of discretionary judgement.

[41] Turning then to the context of the fair trial the first point is that the applicant can, of course, instruct Mr Barlow as junior counsel at his trial. This is not a case where he has been deprived of counsel of his choice. He will have the choice of also instructing senior counsel of appropriate expertise and experience. It was argued by Mr O'Neill that the rule envisaged a requirement to instruct any senior counsel who was available irrespective of his expertise or experience. I do not accept that submission. The Code read as a whole clearly indicates that any counsel, including senior counsel, should only accept a brief in a case where he is fit to conduct it and bring to it the expertise and experience expected of his standing and rank. I consider that it is unarguable that the instruction of Mr Barlow with senior counsel of the applicant's choice could adversely affect the fairness of the trial because the applicant was deprived of the opportunity to instruct Mr Barlow with junior counsel or a solicitor advocate.

Conclusion

[42] For the reasons given I consider that any interference with the applicant's right to choose counsel arising from the provisions of the Code were justified by reasons which were relevant and sufficient and I would dismiss the application.

COGHLIN LJ (COG9511)

[1] The applicant faces a re-trial in which he is charged with a number of serious sexual offences. He has been granted legal aid and, in these proceedings, he challenges a decision of the Bar Council which, it is asserted, prevents him from instructing his representative of choice, Mr Mark Barlow B.L., to act as lead counsel in his trial. Mr O'Neill appeared for the applicant together with Mr O'Rawe, who acted on a pro bono basis, while Mr Scoffield QC and Mr Sayers appeared for the Bar Council. The court had the benefit of carefully constructed and well prepared submissions from both sets of counsel.

[2] I am indebted to the Lord Chief Justice for the helpful and accurate record of the relevant facts and applicable legislative provisions contained in his judgment herein which I respectfully adopt.

[3] The legal profession in Northern Ireland is divided between those who practice as solicitors and those who practice as barristers. Barristers in independent practice are self-employed professionals charged with the duty of providing a referral service of independent legal advice and representation. As such, they are subject to the terms and conditions of a Code of Conduct the most recent edition of which was adopted by the Bar in General Meeting on 27 May 2010 ("the Code of Conduct"). Practice at the Bar is highly competitive and the Code of Conduct discharges the essential function of providing a framework of duties and obligations owed by individual practitioners to the lay client, to the court and the interests of justice, to the public and to one another.

[4] The independence of the Bar is fundamental. Rule 12 of the Code of Conduct provides that a barrister must not permit a professional client, the solicitor, to limit his discretion as to how the best interests of the lay client can be served. Rule 13 entitles a barrister to refuse to accept instructions from a solicitor which are not comprehensive or properly presented and provides that he or she should draw the inadequacy of such instructions to the attention of the solicitor. Rule 16 provides that if a barrister believes that evidence exists that the professional client, the solicitor, has failed to perform his professional duties properly, he should inform the lay client accordingly.

[5] The purpose of Rule 20.11 of the Code of Conduct is to provide, in the interests of justice and a fair trial, a basic generic safeguard for the lay client, any relevant victim\s and the general public by ensuring that in cases appearing to present exceptional difficulties or involving a charge of murder representation should include both senior and junior counsel as independent legal representatives if that is considered necessary by the appropriate judicial authority. As such, in my view, the Rule is both fair and proportionate. Where the judge of the court before which an assisted person is due to be tried considers that it is in the interests of justice that a certificate for two counsel must be granted in order to protect the Human Rights of the assisted person the judge shall grant such a certificate. Rule 4(3) of the 2012 Rules provides that in any case in which the certifying authority has granted a certificate for two counsel a junior and senior counsel may be instructed. The reference to may instruct takes account of the situation in which appropriately experienced senior counsel is not available and the exception contained in Rule 20.11 of the Code applies. Rule 4.11 of the Code provides that a barrister should decline to act in any case which is beyond his competence and so inform his professional client forthwith. The purpose of the Statutory Rules and the Code of Conduct is to ensure that, in appropriate cases, the lay client should be represented by the most able and experienced counsel available.

[6] The essential case made on behalf of the applicant is that the decision by the Bar Council contained in the letter of 29 April 2014 was unlawful in so far as the application of Rule 20.11 of the Code of Conduct in this case has led to an interference with the applicant's Article 6(3) Convention right to defend himself through legal assistance of his own choosing. However, it is common case that there is nothing to prevent the applicant from being fully and effectively represented by Mr Barlow throughout the criminal proceedings. Such a result may be obtained by the applicant agreeing to his solicitors briefing a suitably qualified senior counsel to act with Mr Barlow upon his behalf, waiving his right to senior counsel or discharging the current certificate for two counsel and applying for a single counsel certificate. In fact what the applicant seeks to secure is not the right to be represented by the legal representative of his choosing but the right to determine the particular structure and designation of his representation together with the role to be played therein by Mr Barlow. No authority has been produced to this court that suggests that Article 6(3) extends such a right to persons charged with a criminal offence.

[7] Article 6(3) does not provide an absolute right to choose the identity of legal assistance and in any particular case the interests of justice, together with those of the public and any victims, will also require consideration – see Croissant v Germany (1992) 16 EHRR 135 and, in this jurisdiction, R v Bothwell (2007) NICA 35.

[8] Apart from representation by Mr Barlow, it is not entirely clear what else was originally being sought by the applicant. Paragraph 13 and 29 of his affidavit sworn on 9 June 2014 appear to suggest that the applicant wished to instruct two junior counsel. In their letter of 25 March 2014 the applicant's solicitors for the purpose of these proceedings expressed the desire of the applicant as: "He wants a full legal team of his original solicitor, junior counsel assisting his lead advocate Mr Barlow BL." In fact, no second junior counsel has ever been instructed on behalf of the applicant in the relevant criminal proceedings. As the applicant's current solicitors confirmed in their letter of 27 May 2014 a solicitor advocate was "junior" at the first trial.

[9] I have given careful consideration to the application for a certificate for representation by two counsel presented by the solicitors acting for the applicant in the course of the criminal proceedings and dated 1 June 2012 about which each member of this court has expressed some concern. At paragraph 35 of his grounding affidavit the applicant confirmed that it was his understanding that in most cases where a defendant was issued with a certificate for two counsel the usual practice would be to instruct a QC together with junior counsel. However, the application form submitted upon his behalf did not provide any indication that the application should be considered in any way out of the ordinary. In particular, despite applying for a "two counsel" certificate, no indication was given to the judicial authority of the proposal that no steps were to be taken to ascertain the availability of/brief appropriate senior counsel, that Mr Barlow as junior counsel was to act as "leading counsel", and that Mr Barlow was to lead a solicitor advocate. No information was provided of the role to be played by the solicitor advocate, the extent to which he was to 'conduct' the case or his experience.

[10] The original application form specified the identity of the applicant's legal representative as 'Adrian Harvey – Trevor Smyth & Co Solicitors'. No further mention of that individual occurs throughout the proceedings. The legal aid certificate does not identify any individual in the firm and simply specifies the assigned solicitor as Trevor Smyth & Co. There was no reference to Mr Neville, the member of the firm who ultimately acted as solicitor advocate. In completing the relevant section of the form the certifying judicial authority has not specified any particular ground for granting a certificate for two counsel other than a brief two word note simply referring back to the material contained in the application – in terms "see applic". In that context I bear in mind that the authority has the right to require written advice from counsel and is subject to an obligation to record the reasons for the decision – see Rule 4(9) and Rule 4 (10) of the 2012 Rules. No doubt, owing to the application form having all the appearances of the standard exercise, it was not considered necessary to make any particular inquiries. In my view the overwhelming probability is that the judicial authority believed that this was a straightforward application to provide the solicitors with authority to instruct two counsel in accordance with Rule 22, 11 of the Code. In such circumstances it is difficult to see how that certificate can apply at all to the applicant's current representation.

[11] There is nothing to indicate in the affidavits sworn in this case that the applicant's then solicitors explained to the applicant in detail the nature and implications of the proposed arrangement prior to making the application for the certificate. The need to provide a lay client with clear, objective and unambiguous information in order to ensure that the exercise of his right to representation of his choice is properly and effectively informed has been recently emphasised by the Lord Justice General and Lord Brodie in the Scottish case of Addison v HM Advocate [2014] HCJAC 110 with particular reference to clarifying representation by solicitor advocates. While Addison was a Scottish case concerned with, inter alia, the Law Society of Scotland Practice Rules 2011, it seems to me that the observations contained in paragraphs [25], [26], [37], [42] and [43] are of general application. Such information should be generally balanced and comprehensive including, for example, the comparative experience and ability of available representation, the need for and relevance of independent advice, the potential for conflicts of interest, the significance of any difference in fee structures etc. I note that, in the course of giving evidence before the Bar Professional Conduct Committee on the 4 September 2013, Mr Barlow stated that it was his practice in this jurisdiction for either himself or his instructing solicitor to explain to the client that a two counsel certificate entitled him to representation by senior and junior counsel but that it was "a matter entirely for themselves." In such circumstances it is reassuring to note the amendment of Rules 17.05 and 20.11 of the Code together with the introduction of the Two Counsel Compliance Certificate by the Bar Council.

[12] In the circumstances I do not consider that any breach of Article 6(3) has been established. The question of discretion of the Bar Council does not arise and, accordingly, I agree that the application should be dismissed.

GILLEN LJ (GIL9495)

[1] I have read the draft judgment of Morgan LCJ and I gratefully adopt the factual, statutory, regulatory and Convention background which he has fully set out together with the summary of the submissions by counsel contained therein. The nature of the application and the issues before this court are fully set out therein and do not require repetition by me. In essence this is a challenge to the decision of the Bar Council, made pursuant to section 20.11 of the Bar Code of Conduct, which A (the applicant) asserts prevents him from instructing his representative of choice, Mr Barlow B.L., to act as lead counsel in his forthcoming criminal trial.

Summary of my conclusions

[2] I have determined that this application must fail for 4 interconnected and complementary reasons:

1. Whilst the right to a lawyer of choice is an important facet of the overarching right to a fair trial, that choice is not an absolute right. Section 20.11 of the Code is but an illustration of that proposition in circumstances where it is both fair and proportionate to so confine choice.

2. The Code is consonant with the provisions of the relevant domestic legislation and regulations.

3. The Code, the Convention, the legislation and regulations all chime with the concept of the triangulation of interests which lies at the heart of the criminal law.

4. In the circumstances of the instant case the Code does not in practice operate to deprive the applicant of his choice of counsel.

Discussion

1. The Code and Art 6 (3) (c) of the Convention

[3] The right of an accused to be effectively represented and defended by a lawyer of his own choosing is an important facet of the overarching right to a fair trial set out in Article 6(1) of the Convention. That point has been repeatedly made by the European Court of Human Rights.

[4] That representation however must be an effective representation enshrining the principle of equality of arms and recognising that justice should not only be done but should be seen to be done (see McLean v Buchanan (2001) 1 WLR 2425, JCPC at [56] et seq).

[5] However that right is not an absolute one. There may be a myriad of reasons why an accused may not be absolutely entitled to a representative of his own choice. These may vary from the most mundane – the chosen representative is not available or unwilling to act for a variety of reasons including conflict of interest or insufficiency of qualification or experience – to the more complex where the interest of justice requires otherwise. Thus in Croissant v Germany (1992) 16 EHRR 135, ECtHR held that the appointment by the Regional Court of Germany of a lawyer to represent the applicant against his wishes did not constitute a breach of Article 6 in circumstances where there was a need to ensure he was adequately represented throughout his trial having regard to its probable length and to size and complexity of the case. The lawyer in question was selected on the view of the court that he was the lawyer who possessed the qualification called for by those special features.

[6] At paragraph [29] the court declared:

"It is true that Article 6 para 3(c) entitles 'everyone charged with a criminal offence' to be defended by counsel of his own choosing …. Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certain have regard to the defendant's wishes …. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice."

[7] This theme has coursed through a rich array of cases conscientiously cited to us by counsel. I trust I do no disservice to their industry by citing only one further instance. In R v Bothwell (2006) NICA 35 (2007) NI 58 Kerr LCJ observed at [16]:

"To allow a general right to representation of choice would be unworkable in the legal system as it currently operates in this jurisdiction.  Besides this, the interests of justice require that there be a system of ensuring that those who present cases, particularly in criminal courts where the liberty of the subject is at stake, are sufficiently competent and qualified to do so." 

[8] In that case the court determined that it should not exercise its inherent jurisdiction to confer rights of audience on two solicitor advocates who had been chosen by the applicant to represent him but who had never presented a criminal appeal previously.

[9] The Code at section 20.11 easily fits into this genre of cases. It is manifestly in the interests of justice that free legal aid granted at public expense for two counsel in cases of complexity should involve one senior counsel. Not only does this ensure value for money and the avoidance of abuse of the process by excluding the possibility of two relatively inexperienced counsel availing of the certificate, but more importantly it guarantees a defendant will be properly and competently defended and the trial process itself expertly conducted.

[10] Whether one approaches this on the basis of proportionality as advocated by Mr O'Neill or fairness of the trial as advocated by Mr Scoffield, the outcome is the same. It is a proportionate measure in that the interference with the right to choose a lawyer is done in this instance with the aim of ensuring the triangulation of interests that lies at the heart of the criminal law process (see paragraph 22 et seq below). There is no alternative lawful measure which could guarantee that legitimate aim in such circumstances. It necessarily balances on the one hand the benefit to the interests of justice and community as a whole whilst on the other hand taking into account the importance of the right to choose and any adverse effects which the rights of the person would suffer by denying him the right. As in this case he preserves the right to retain his counsel of choice to assist him - Mr Barlow in the instant case - but in addition there is a necessity for him to choose a senior counsel as the best guarantee of a fair trial. Implementation of the Code is thus not only a proportionate step but also in the interests of a fair trial.

[11] In any event a discrete point on the impact of Article 6 (3)(c) in this case arises because I believe there is great weight in the argument that the article is not calculated to protect the particular designation of Mr Barlow as lead counsel. It was unsurprising that counsel was unable to advert to any case where the right to designate the position of counsel had ever been successfully instituted. Article 6 affords protection to an accused to secure assistance from his lawyer of choice but not to designate the role of that lawyer as senior or junior counsel. The assistance of Mr Barlow is still available albeit as junior counsel to a senior counsel if a certificate of two counsel remains extant. If A is unhappy with that designation then the choices open to him are as set out in paragraphs 24 et seq of this judgment.

2. The Code and the 2008 Order/ 2005 Rules /2012 Rules

[12] Law is characterised by a dialectic between theory on the one hand and experience on the other. The theoretical rights to a lawyer of choice must find restraint in the experience of courts that the right to choose representatives at trial is only meaningful and in the interests of justice if it is adequately informed with an accused having sufficient information about the significance and importance of his choice.

[13] Neither a purposive construction of the order and rules set out above nor the interests of justice would be served if, in cases of murder, complexity or novelty etc, the grant of a certificate for two counsel could lead to a situation where public money was invested in an uniformed decision by an accused to choose counsel or solicitors who were inadequately experienced to meet the rigours of the complexity of the case.

[14] Hence Parliament has imposed on District and Crown Court Judges the burden of rigorously scrutinising cases and representation where it is argued that they involve substantial novel or complex issues of law or fact such that it cannot be adequately presented by one counsel.

[15] Such is the importance of the exercise that it is incumbent on District Judges/Crown Court Judges as certifying authorities under Article 4(10) of the 2012 Rules to record the reasons for their decision in writing in the forms provided by the Department and to state whether each of the conditions relied upon in support of the certificate granted or sought is fulfilled. Indeed before granting a criminal aid certificate in respect of two counsel, under Rule 4(9), the certifying authority may even require written advice from any counsel already assigned to the applicant on the question of what representation is needed in the proceedings.

[16] I pause to observe that in this instance I harbour concerns as to whether that task was carried out with sufficient rigour in that the obligation under Rule 4(10) seems to have been addressed merely by the District Judge inserting the words "see applic"(referring to the reasons outlined by the solicitor in the accompanying application) without setting out clearly the reasons for the decision in the boxes provided in the Department's documentation.

[17] Moreover Rule 4(1) of the 2012 Rules provides that the court, after taking into account any representations, may "assign a solicitor who is practising in Northern Ireland". It seems to me that a purposive construction of this rule would involve the certifying authority naming a specific solicitor rather than simply a firm which could include a number of solicitors who were far too inexperienced to be carrying a case of this kind. I consider that there is therefore merit in the assertion of Mr Scoffield that before a solicitor advocate can act in a case of this kind, it would be necessary under the 2012 Rules for the court to assign that solicitor and identify him in so doing. It is of course unnecessary for the court to identify or instruct the counsel involved because that is a task which under Rule 4(3) is vested in the assigned solicitor.

[18] In this context, for example, it may be necessary to explore the identity and experience of the solicitors who will represent the accused in the event of such a certificate being granted in a case of murder, complexity or novelty. If, as in the present instance, it is intended that the appellant should be represented by a junior counsel leading a solicitor advocate instructed by a solicitor from the same firm, it would be necessary to ensure that the client has been advised of his options for representation.

[19] In Addison v HM Advocate (2014) HCJAC 110 the Lord Justice General (Gill) observed as follows concerning the Law Society of Scotland Practice Rules 2011 which provide that if a case requires appearance in a superior court, the solicitor must advise his client that it is for the client to decide whether a solicitor advocate or counsel is instructed. At paragraph [26] he said:

"The observance of these duties may present the accused's solicitor with a conflict of interest, especially if he has a solicitor advocate or if a senior member of his firm is a solicitor advocate …. .. Even where there is no such obvious conflict of interest, the solicitor may nonetheless find it difficult to give wholly objective advice as to the choice of defender from those who are available. In the event, any advice that he gives may be thought to lack the appearance of objectivity."

[20] It cannot have been the intention of Parliament that the reference to a certificate for two counsel in such serious and complex cases, with the accompanying need for detailed judicial scrutiny before being granted, could lead to a situation where public money was expended on anything other than the most experienced and able of counsel or solicitor advocates.

[21] The Code at 20.11 thus reflects the spirit of Parliamentary intention in this context. By insisting on the presence of the expertise and experience of Senior Counsel (save in exceptional circumstances) where two counsel have been certified, it ensures that the carefully considered decision of the certifying authority in such cases is properly and fairly implemented without risk of abuse. It is in the interests of the accused person, the legal profession, fair trials and the public at large that the Bar Council should be seen to marshal its own members in a manner that is transparently accountable and reflective of the will of Parliament. Accordingly I consider that the implementation of the Code in this instance is unimpeachable.

3. The Code and the Triangulation of Interests

[22] Such an approach not only resonates with principle and common sense, but it also embraces the concept of the triangulation of interests adumbrated by Lord Steyn in Attorney General's Reference (No. 3 of 1999) (2001) 2 AC 91 at p. 118 where he said:

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public."

[23] I consider that the rule of conduct Section 20.11 falls neatly into this principled approach to the triangulation of interests necessary in criminal cases. There is much weight in Mr Scoffield's submission that the provision of the enhanced service of Queen's Counsel under the provisions of the section is a safeguard put in place in large measure not only for the protection of defendants but also of the equally important function of furthering the public interest in the just and efficient disposal of criminal cases of identified significance. I am of the opinion that he is right to assert that the independent Bar is entitled to adopt this position and that in doing so it impugns neither the 2012 Rules nor Article 6(3)(c) of the Convention.

4. The Code and A

[24] The operation of the Code does not deprive A choosing the assistance of Mr Barlow. Application can be made to the original court to discharge a certificate for two counsel thus enabling Mr Barlow to fully conduct the case without the assistance of Senior Counsel provided he satisfies the court it is right to discharge the current certificate for two counsel.

[25] Under the current certificate A has the right to have instructed anyone of a number of highly experienced senior counsel who currently operate in Northern Ireland or elsewhere in addition to Mr Barlow. He is not inflexibly committed to any senior counsel who is free and thus will not be obliged to accept the services of any inexperienced senior counsel. Mr Scoffield correctly drew our attention to the comprehensive nature of the Code of Conduct which at Rule 4.08 provides:

"A barrister in independent practice is under a duty to accept a brief to appear in any court in which that barrister holds out for practice (having regard to experience and seniority) …."

[26] In addition Rule 4.11 provides that:

"A barrister should decline to act in any case which is beyond his competence and he must so inform his professional client forthwith."

[27] The courts can depend upon the integrity and professionalism of the Northern Ireland Bar to ensure that this Code of Conduct is rigorously observed with a commitment to objective value. A senior counsel who is not able to comply with the strictures of 4.08 and 4.11 will thus not be available within the terms of section 20.11 of the Code.

[28] Moreover whilst the matter does not require specific determination in the circumstances of this application and was not fully argued before us, it may be plausibly argued that it is open to A to return to the District Judge and seek to persuade her to vary the legal aid certificate to obtain the right to have the services not of two counsel but of one counsel and an assigned solicitor advocate in addition to the existing assigned solicitor. Arguably this may fall outside the provisions of Code section 20.11 in so far as this section should perhaps realistically be interpreted to address only that situation where it is contemplated that two barristers will have been instructed by the assigned solicitor under the terms of the relevant legal aid certificate. Determination of that issue may finally fall to be considered on another day.

Conclusion

[29] I have therefore come to the conclusion that section 20.11 as interpreted in this instance is unimpeachable and it is consistent with the Convention and domestic legislation. Accordingly this application must fail.