Neutral Citation no.[2001] NIQB 41
Ref:  
KERF3523

 
Judgment: approved by the Court for handing down
Delivered:
08.11.2001
(subject to editorial corrections)

 
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 _________ 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 ________ 
IN THE MATTER OF AN APPLICATION BY JOHN DOHERTY TRADING AS JMD AUTOSPARES FOR JUDICIAL REVIEW
 
 ________ 
KERR J
Introduction
This is an application for judicial review of the decision of a Resident Magistrate sitting at Londonderry Magistrates’ Court on 15 March 2001 refusing an application for the adjournment of the hearing of two summonses.  The application is made by John Doherty who is the owner of JMD Autospares which operates a car breaker’s yard at Coney Road, Londonderry.  Mr Doherty challenges the decision of the magistrate, Bernadette Kelly, to refuse his solicitor’s application to adjourn the hearing of two summonses in which he was charged with breach of enforcement orders which had been served on him by the Department of the Environment for Northern Ireland.
Background
The summonses against the applicant were originally due to be heard on 21 December 2000.  His solicitor, William J Hasson, arranged for them to be adjourned in order to seek senior counsel’s advice.  They were adjourned to 15 February 2001.  On that date they were again adjourned and fixed for hearing on 15 March 2001.  Before this, Mr Doherty consulted with Mr Desmond Murphy of Counsel and decided that he wished to retain Mr Murphy’s services for the hearing.  Unfortunately, Mr Murphy was not available on 15 March.  Mr Hasson therefore decided to make a pre-emptive application for an adjournment of the summonses to a date beyond 15 March when Mr Murphy would be available.   The magistrate heard this application on 7 March 2001.  A solicitor for the Department of the Environment was present and indicated that the Department did not oppose the application for the adjournment.  The application to adjourn was refused by the magistrate.  She did not consider that Mr Murphy’s absence constituted a valid reason for the adjournment and that Mr Hasson had ample time before 15 March 2001 in which to instruct another counsel.
Mr Hasson attempted to obtain the services of other counsel but when he discussed the matter with the applicant, the latter indicated that he wished to have Mr Murphy represent him.  Mr Hasson made no further attempt to obtain counsel but attended court on 15 March 2001 with his client.  His instructions from Mr Doherty were to renew the application for an adjournment.  Mr Hasson did that but the application was again refused.  The applicant and his solicitor then left the court.  In due course the hearing of the summonses proceeded in their absence, the applicant was convicted and fined £5000 and ordered to pay £14 costs.
There is a dispute as to what happened during the application for the adjournment on 15 March.  Mr Hasson and the applicant assert that the magistrate was informed that the applicant’s defence involved a point under the European Convention on Human Rights.  The applicant put the matter thus in his affidavit: -
“6.       On Thursday 15 March 2001 I attended with my solicitor at Londonderry Magistrates’ Court.  My solicitor renewed his application for an adjournment pointing out that my counsel was not available but that my counsel had some experience in EEC law (sic) and that our case turned on a Convention point.  The Resident Magistrate indicated that she was not going to adjourn the matter.  My solicitor then indicated that if that was the case he would not be defending the matter but would be leaving.  He pointed out that I was a fee paying client and under the Convention I was entitled, where possible, to the counsel of my choice and that by the resident Magistrate adopting the attitude she was adopting, I was being denied that and that I was being denied my right to a fair trial under Article 6.”
 
In his second affidavit, Mr Hasson said this: -
“6.       I would say that when the learned Resident Magistrate indicated that she would not be adjourning the matter I indicated that in that event I would not be presenting any case on behalf of my client since the point involved was a net point of Convention law and the matter would be dealt with by counsel with a specialist knowledge of the Convention law at another venue.  I also pointed out that I considered that my client was being denied his rights to a fair trial under the Convention.”
 
The Resident Magistrate dealt with these suggestions in paragraph 3 of her second affidavit and paragraph 2 of her third affidavit as follows: -
“3.       Before Mr Hasson left the court with his client on 15 March 2001 I was not told by him that his client’s case involved a net point of Convention law and required counsel with a specialist knowledge to present it.”
 
and
 
“2.       I have been asked to specifically indicate what my state of knowledge, based on what I was told at the hearing of the adjournment application on 15 March 2001, was in relation to whether the applicant wished on the hearing of the summonses to raise a point of European Convention law.  My clear recollection is that I was not told at any stage of the hearing that it was the intention of the applicant or his legal adviser to raise in the applicant’s defence a point relating to the European Convention.  I have looked in particular at paragraph 6 of Mr Doherty’s affidavit and can say that what is contained therein in respect of this matter did not occur.  I also have specifically considered the contents of Mr Hasson’s second affidavit and wish to state that I am clear that I was not told that a point of Convention law would be raised in the substantive proceedings.”
 
In the event of a conflict of evidence the legal burden of proof remains on the applicant - see Supperstone & Goudie Judicial Review, 2nd Edition, p. 17.8.  It is for the applicant to establish (on the balance of probabilities) the version of the facts required to sustain his judicial review challenge.  We are unable to accept the claims made by the applicant and his solicitor in light of the explicit denial of those claims by the magistrate.  We have concluded, therefore, that it has not been established that the magistrate was informed that the applicant’s defence involved a Convention point or that counsel with expertise in this area was required.
The applicant’s case
On behalf of the applicant Mr Murphy accepted that the magistrate’s decision could not have been challenged by way of judicial review before the incorporation of the European Convention on Human Rights into domestic law by the Human Rights Act 1998.  He argued, however, that since the incorporation of the Convention, the right to counsel of one’s choice was either an absolute one enshrined in Article 6 or it was a Convention right that should only be denied after careful inquiry.  He submitted that in the present case the magistrate failed to conduct such an inquiry.  In particular, she failed to have regard to the following matters: -
1.      An adjournment of one week only had been sought. (Mr Murphy was available from 22 March onwards).
2.      There was no prejudice to the Department of the Environment; the Department was neutral as to whether the hearing of the summonses should be adjourned.
3.      The adjournment would not give rise to irrevocable harm “elsewhere”.
4.      The applicant’s insistence on having counsel of his choice was not arbitrary nor was it an attempt to thwart the interests of justice.
5.      The consequence for the applicant in having the application for an adjournment refused was the imposition of a heavy fine.
Mr Murphy argued that the failure of the magistrate to take these matters into account was of special significance since the applicant’s right to a fair trial was at stake.  He relied on the decision in R v Secretary of State for the Home Department ex parte Daly [2001] 3 All ER 433 which, he suggested, called for a more intense scrutiny of the correctness of a decision on a matter affecting an individual’s Convention rights.
The right to counsel of one’s choice
Article 6 (3) (c) of the Convention provides that everyone charged with a criminal offence is entitled “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”. 
We are satisfied, however, that Article 6 does not guarantee an absolute right to counsel of one’s choice.  In Croissant v Germany (1992) 16 EHRR 135 the European Court of Human Rights 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.  At paragraph 39 of the judgment the court said: -
“It is true that Article 6 para. 3 (c) (art. 6-3-c) entitles "everyone charged with a criminal offence" to be defended by counsel of his own choosing (see the Pakelli v. Germany judgment of 25 April 1983, Series A no. 64, p. 15, para. 31).  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 certainly have regard to the defendant's wishes; indeed, German law contemplates such a course (Article 142 of the Code of Criminal Procedure; see paragraph 20 above).  However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.”
 
In Pakelli v Germany Series A, No.64 (1983) ECtHR considered the differences in the French and English texts of Article 6 (3) (c) in the following passage: -
“31.     Article 6 para. 3 (c) (art. 6-3-c) guarantees three rights to a person charged with a criminal offence: to defend himself in person, to defend himself through legal assistance of his own choosing and, on certain conditions, to be given legal assistance free.  To link the corresponding phrases together, the English text employs on each occasion the disjunctive "or"; the French text, on the other hand, utilises the equivalent - "ou" - only between the phrases enouncing the first and the second right; thereafter, it uses the conjunctive "et".  The "travaux préparatoires" contain hardly any explanation of this linguistic difference.  They reveal solely that in the course of a final examination of the draft Convention, on the eve of its signature, a Committee of Experts made "a certain number of formal corrections and corrections of translation", including the replacement of "and" by "or" in the English version of Article 6 para. 3 (c) (art. 6-3-c) (Collected Edition of the "Travaux préparatoires", vol. IV, p. 1010).  Having regard to the object and purpose of this paragraph, which is designed to ensure effective protection of the rights of the defence (see the above-mentioned Artico judgment, SeriesA no. 37, p. 16, para. 33; see also, mutatis mutandis, the Adolf judgment of 26 March 1982, SeriesA no. 49, p. 15, para. 30, and the Sunday Times judgment of 26 April 1979, SeriesA no. 30, p. 30, para. 48), the French text here provides more reliable guidance; the Court concurs with the Commission on this point.  Accordingly, a "person charged with a criminal offence" who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require.”
 
Although the Croissant case makes clear that the right to choose one’s own counsel is not absolute, this is a right which is not lightly to be overruled. In an article in European Human Rights Law Review, Issue 4, 2001, page 409, O’Brien and Arnold suggest that the effect of the decision in Croissant is that the right to choose one’s own counsel was subject to two conditions.  Firstly, where the defendant was legally aided the right was necessarily subject to “certain limitations”.  Secondly, where, as here, the defendant was not legally aided, a national court could override a defendant’s wishes where “there are relevant and sufficient grounds for holding that it is in the interests of justice to do so”.  Before doing so, however, the court must consider and have regard to the preference expressed by the defendant.
               It appears to us that the right to choose one’s own counsel should be respected by courts unless there are substantial reasons for concluding that the interests of justice require otherwise.  Both the Pakelli and the Croissant cases involved the assignment or appointment of counsel by the court.  In their article, O’Brien and Arnold comment on this aspect of the cases in the following passage at page 414: -
“The jurisprudence of both the [ECtHR] and the Commission is rooted in a legal culture in which it was traditionally the function of the court to assign counsel to those charged with criminal offences.  Pakelli is an important decision in so far as it challenges that tradition and argues for an interpretation of Article 6 which recognises that the right of choice is expressly guaranteed by ECHR and does not depend on the accused’s ability to pay.  Although in Croissant the court declared that the right was not absolute and was subject to certain limitations in the case of legally aided defendants, it did not deny that that a right of choice for legally aided defendants was guaranteed by the ECHR.”
 
This passage in our view rightly emphasises the express recognition by ECHR of the right to choose one’s own counsel.  As Lord Bingham has noted in Procurator Fiscal, Dunfermline v Margaret Brown [2000] 2 WLR 817 “particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure”.  The right of a defendant to be represented by counsel of his choosing is expressly provided for in Article 6 (3) (c).  The wish of a defendant to have a particular counsel appear for him must therefore be carefully considered by a court which is asked to adjourn a case in order to allow that wish to be fulfilled.
The decision to refuse the application for an adjournment
            The Resident Magistrate in the present case explained her reasons for refusing to adjourn the applicant’s case in the following paragraphs of her first affidavit: -
“3.  My decision to refuse the application was made on the following basis: -
 
(i)                 An application to adjourn the case had been made before me and granted on 21 December 2000.  The defence had advised the court that the matter was to be contested.  The case was adjourned until 15 February 2001 to facilitate discovery and disclosure.
 
(ii)              On 15 February 2001 the defence advised that the matter could be fixed for hearing.  With the agreement of all the parties, the date of 15 March 2001 was fixed for contest
 
(iii)            The matter was mentioned to me by defence solicitor on 7 March for the purpose of seeking an adjournment.  Although the matter was not properly before me on this date, I did enquire the nature of defence difficulties.  The basis for this application was that counsel instructed would not be available until 22 March 2001 as he was going on holiday.  I enquired why the court was not advised of this information when the case was fixed for hearing.  I was told that counsel was not briefed at that time.  I did not consider this to be a valid reason for an adjournment.  As the applicant’s solicitor had over a week to instruct other counsel I declined to grant the adjournment.
 
(iv)            When the application for adjournment was made again on 15 March 2001 on the same ground (i.e. counsel’s availability) nothing material appeared to have occurred since the previous application.  I was not told that efforts to obtain another counsel had failed.  In these circumstances it appeared to me that the applicant’s solicitor had simple (sic) ignored my earlier refusal of an adjournment and was seeking to present me with a fait accompli.”
 
The Resident Magistrate does not refer to any consideration by her of the applicant’s right to be represented by counsel of his own choice.  Her explanation for refusing the adjournment makes no reference to an investigation of the reasons that the applicant wished to be represented by Mr Murphy.  
               In order to decide whether the right to be represented by counsel of his own choice should be respected or whether that right should yield to greater interests of justice, it appears to us that it would be essential to be aware of and to evaluate the reasons that Mr Doherty wanted to have Mr Murphy as his counsel.  The Resident Magistrate made no such inquiry.  Rather, she appears to have concluded that Mr Murphy’s being on holiday and not having been briefed when the case was originally listed was not a sufficient reason to adjourn the hearing.  This was the wrong approach, in our view.  Some assessment of the reasons for choosing Mr Murphy was an indispensable prerequisite to a valid decision that the applicant should be denied his right to counsel of his choosing.
               It is unquestionably the case that a defendant may not insist upon counsel of his choice if that involves an unacceptable delay to his trial.  Moreover, the availability of suitable alternative counsel when the person chosen cannot be present is undoubtedly a factor to be taken into account when deciding whether to accede to an application for an adjournment.  The Resident Magistrate was correct, therefore, to have regard to the lack of information about any attempt to engage alternative counsel.  Where she fell into error, however, was in her failure to conduct any inquiry into the reasons that the applicant wished to have Mr Murphy represent him.  If she had conducted such an inquiry it is entirely possible that she would have properly concluded that the case should not be adjourned.  She might well have decided that there must have been other counsel available who could have conducted the case adequately and without disadvantage to the applicant.  Such a decision, if taken on proper grounds and after a sufficient consideration of the reasons that the applicant wished to have Mr Murphy represent him, would have been beyond challenge.
Conclusions
               The failure of the magistrate to conduct any inquiry into the reasons that the applicant wished to be represented by Mr Murphy inevitably deprived her of the opportunity to properly consider whether his right to have counsel of his choosing should be respected and an adjournment should be granted.  For that reason, her decision to refuse the adjournment must be quashed.  In consequence, the applicant’s conviction must be set aside and the penalty imposed on him remitted.  It is, in our view, desirable that, if the hearing of the summonses is to proceed, a different magistrate should deal with it.
               It is important to emphasise that an individual is not entitled to insist on being represented by a particular counsel if the effect of that would be to delay his trial unnecessarily or if the interests of justice require that the trial should not be postponed until the chosen counsel is available.  Before deciding whether to grant or refuse an application for an adjournment, however, it is necessary that the tribunal making the decision should conduct an inquiry into the reasons for the selection of a particular counsel.  Provided such an inquiry is carried out and there are sufficient grounds for concluding that the interests of justice require that the matter should proceed, a decision to refuse the adjournment will not be susceptible to judicial review.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 _________ 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 ________ 

IN THE MATTER OF AN APPLICATION BY JOHN DOHERTY TRADING AS JMD AUTOSPARES FOR JUDICIAL REVIEW
 
 ________ 
 
J U D G M E N T
O F
KERR J
 ________