Are two heads better than one?

The Supreme Court in London recently considered the question of whether two heads are better than one.  Now that I’ve got your attention, let me explain: The Defendant faced criminal proceedings before Belfast Crown Court. He was granted Legal Aid to cover the costs of a solicitor and two counsel from the public purse.  At his trial, he was represented by a ‘leading junior counsel’ and a ‘solicitor-advocate’ instructed by a solicitor.  The jury was unable to reach a verdict. The Defendant then faced a re-trial. 

In the intervening period, the Bar Council brought disciplinary proceedings against the aforementioned ‘leading junior counsel’ on the basis 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. This gave rise to a question as to whether the code of conduct of the Bar Council constituted a violation of the Defendant’s right to a fair trial under the European Convention on Human Rights (ECHR, Article 6).

In any event, the Defendant was acquitted on seven counts at his re-trial with the prosecution indicating they would not seek a further trial on the remaining counts on which the jury failed to agree.

The issue to be determined by the Supreme Court was whether, in cases where public funding for two counsel has been granted and where the accused wishes to retain a particular junior counsel, the requirement of the Bar Council that he must instruct an available senior counsel or proceed with junior counsel alone was not compatible with the accused’s right to defend himself through legal assistance of his own choosing.

The Supreme Court dismissed the appeal on the grounds that the fundamental basis the ECHR right conferred under Article 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 he is 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. 

The deprivation, if there was one, was the denial of an enhanced payment to [‘junior counsel’] acting as “leading counsel”… Article 6 does not give a defendant the right to demand that he have counsel of his choice at public expense, independently of the requirements of the interests of justice. So far from impinging on the appellant’s rights under article 6.3(c), the relevant provision in the Bar’s code of conduct is designed to uphold and vindicate them.

It is noteworthy that both Defendant (Applicant) and Respondent were represented by Queen’s Counsel; junior counsel and solicitor before the Supreme Court.

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