27 March 2015

Mr Justice Treacy, sitting today in the High Court in Belfast, ruled that the rules governing legal aid for Crown Court proceedings do not have proper regard to the time and skill required to do the work involved in a case where a person is seeking to challenge a decision to prosecute him where he had previously received a letter of assurance from the Government.

Michael Burns (“the applicant”) faces trial on charges of attempted murder and possession of a firearm with intent to endanger life. He received a letter of assurance from the Northern Ireland Office in 2003 stating that there was no outstanding direction for prosecution in NI, there were no warrants in existence and that he was not wanted in NI for arrest, questioning or charge by the police. Relying upon this letter, the applicant lived openly in NI until the time of his arrest and charge for the offences.

The applicant initially applied for leave to seek judicial review of the DPP’s decision to prosecute him on the ground that his decision was unlawful in light of the letter of assurance he had received. He argued that he could not raise these matters as an abuse of process application within his criminal trial because the legal aid fund did not remunerate the kind of exceptional work and skill required to bring such an application.

The Divisional Court directed that the proceedings be served upon the Northern Ireland Legal Services Commission. They provided a position paper entitled “Crown Court Remuneration for Abuse of Process Applications” which set out the fixed fees applicable where the application is made prior to the commencement of the trial. The paper confirmed that there are no “exceptionality” provisions and, unless the application is successful, only the standard application fee is payable. If unsuccessful, the trial continues in which case the appropriate trial and refresher fees are payable. The Divisional Court dismissed the leave application and concluded that, because of the complexity of the issues and the steps that would be required to establish all the relevant facts, it would be more appropriate for the matter to be dealt with in the Crown Court.

The applicant now wishes to make an abuse of process application in the context of his criminal trial but his solicitor states that his counsel of choice and any other counsel he approached have refused to accept papers for the case on the basis that the Legal Aid for Crown Court Proceedings (Costs) Rules (NI) 2005 (as amended by the Legal Aid for Crown Court Proceedings (Costs) Rules (NI) 2011) do not make any allowance for the kind of exceptional work required to prepare and conduct his application meaning that he has no effective remedy in the Crown Court. The applicant brought this application to challenge the Costs Rules as being unlawful by reason of their failure to provide for cases which require exceptional time and skill.

The applicant referred to a decision of the Supreme Court where it was stated that the rule making body should devise rules that will allow payment to be made which reflects the time and skill necessary to carry out particular types of criminal legal aid work and that rules which do not do so are ultra vires the enabling power. The Supreme Court referred to case law which stated that the requirement of fairness in judicial proceedings are rarely, if ever, met by blanket measures of universal application and those “which make no allowance for exceptional cases will not readily meet the standards required for fairness and justice”.

Mr Justice Treacy noted that the 2005 Rules and the 2011 Rules are made under Article 36(3) of the Legal Aid, Advice and Assistance (NI) Order 1981. He said the 2005 Rules had contained a provision for exceptionality but that the 2011 Rules abolished this provision. The applicant submitted that there are now no rules that “cater for payment on the basis of the skill and time required” for work of the kind required in this case. The Department of Justice did not accept that the proposed abuse of process application involved exceptionally complex and time consuming preparatory work such as to take it outside the range of work normally expected to be done under the relevant criminal legal aid certificate. The Department did not agree that it would not be possible to secure the services of other counsel to carry out the work or that the applicant is a proper person to make the application challenging the level of remuneration payable for the work.

Mr Justice Treacy said the issue in the case is whether the 2011 Rules do or do not comply with the requirements of the 1981 Order which in Article 37 requires the Department to have regard to:

(a) The time and skill which work of the description to which the rules relate requires;

(b) The number and general level of competence of persons undertaking work of that description;

(c) The cost to public funds of any provision made by the rules; and

(d) The need to secure value for money.

The parties agreed that the current Rules pay due regard to paragraphs (c) and (d) and that the question is whether they also pay due regard to paragraphs (a) and (b).

In relation to paragraph (b), the applicant’s solicitor asserted that his preferred Counsel refused to take a brief and that he was unable to find Counsel willing to undertake the work despite making extensive enquiries around the Bar Library. The Department pointed out that there was no evidence that the applicant’s solicitor had researched the possibility of engaging a solicitor advocate to perform the work. Mr Justice Treacy commented that there is no doubt that there are a large number of both counsel and solicitor advocates who are, in principle, available to conduct criminal work but that in cases involving serious criminal charges where the liberty of the subject is in jeopardy different considerations may apply:

“In selecting an advocate for the most serious criminal cases the instructing solicitor is not required to invite all advocates on the sole condition that they are willing to take a brief in the case. In serious criminal cases involving grave risk to liberty and to reputation the accused’s solicitor is obliged to use his professional judgment to select advocates he believes have the right skills plus sufficient experience to do justice to the interests of his client. Solicitors in such cases must never take the attitude that “any representative will do”. The 1981 Order recognises that such factors are relevant and indeed instructs the Department to have regard to these factors when setting remuneration rates in the rules it issues. Any rules issued should therefore enable criminal solicitors to brief only those advocates who are genuinely competent to perform this work in terms of their skills and their experience.”

The judge said that in his experience the number of appropriate advocates available to a solicitor for a criminal trial such as the present one is relatively limited. He said the case involves several distinct elements - the criminal trial itself and the separate and distinct abuse of process application – the combination of which requires advocates with a particular mix of skills and experience spanning criminal law, public law and human rights law:

“Advocates with this range of competencies are relatively rare and the solicitor should be encouraged to use his best judgment in selecting appropriately. The legal aid rules should also have regard to the relative scarcity of appropriately skilled advocates because this is what Article 37(b) of the Order requires.”

Mr Justice Treacy then considered Article 37(a) which states that the Department must have regard when setting remuneration rates to “the time and skill which work of the description to which the rules relate requires”. He said that many criminal cases are relatively low risk and follow predictable paths – such cases may well be appropriate for remuneration by scale fees and the scope for gross over and under payment does not arise. The judge commented, however, that some criminal cases may arise which are not routine or predictable and where the work required to deliver a Convention compliant fair trial may be very significant indeed:

“Such cases must not be treated as standard cases. To treat them as standard when they are in fact exceptional is to run the risk that the legal teams involved could be grossly underpaid for the work they are required to do in their client’s interests. A set of rules which delivered such an outcome would be contrary to the requirements of the enabling legislation and, to that extent, those rules would be unlawful.”

Mr Justice Treacy then considered whether or not the work required in the applicant’s case is such as to take it out of the “standard” range. He referred to a list of preparatory work which the applicant’s solicitor said needed to be done and commented that nothing in the list appeared to be excessive. He said it was immediately clear that the work will require significant time to prepare and the case is likely to involve at least several days of hearing. The judge agreed that the rules seem to envisage applications in the Crown Court as generally short matters involving relatively little preparation and the remuneration levels are set accordingly:

“Neither assumption is correct in the specific circumstances of the applicant’s case and therefore his application ought not to be treated as a “standard” one. It ought not to be remunerated at a rate which ignores the very different preparation level and time commitment which this particular application calls for. To treat this application as “standard” runs the risk of a significant discrepancy occurring in payment rates applicable to this application as compared to other Crown Court applications.”

The Department argued that where counsel undertake abuse of process applications like this one they also access the brief fee for the criminal trial whether that trial runs or not. It argued that because of the availability of this second element of remuneration the overall payment for the entire case ought to be regarded as fair and reasonable. Mr Justice Treacy said this argument was flawed. He said that where a brief fee is paid in a standard criminal trial it is usual that the preparatory work for that trial has already been done and the brief fee is therefore already earned whether the trial runs or is abandoned in light of the application. If counsel have already delivered the work required to earn the brief fee it is or may be unreasonable to then require them to spread the same fee over hours of work done in preparation for a separate aspect of the case which requires a different knowledge and skill set. The judge said it would certainly be unreasonable to require such a spreading of fees earned if the net effect of it could be to reduce the hourly rate to less than the minimum hourly rate which that fee would deliver in a truly standard case:

“Spreading the brief fee in such a case does not result in fair and reasonable remuneration for that whole complex criminal case. Rather it results in a gross underpayment for the work already done in preparing the criminal aspect of the case – “gross” in the sense that the hourly rate received in the case would now be excessively out of step with the hourly rate paid generally for cases in this category.”

Mr Justice Treacy commented that having a potential discrepancy of this scale between the remuneration paid for different types of Crown Court applications is contrary to the purpose of the 1981 Order. He said the possibility of receiving grossly reduced fees for cases involving considerably more preparation and presentation time runs counter to the clear enjoinder in Article 37(a) to “devise rules that will allow payment to be made which reflects the time and skill necessary to carry out particular types of criminal legal aid work”. He commented that the effect of such a discrepancy is that some types of criminal work become less attractive than others to the most skilled and competent advocates in the field and that the rules may operate as a disincentive to such advocates to take on the most difficult cases.

Mr Justice Treacy concluded that the present rules are ultra vires the 1981 Order to the extent that they do not have proper regard to the time and skill required to do the work involved in the applicant’s case.