Criminal Legal Aid Reform, the Right to Choose and the ECHR – Some Thoughts

Richard A. Edwards.ILHRU. UWE Bristol.

One of the most contentious proposals in the Green Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale. In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?

This is an interesting and important question. Article 6(3)(c) articulates one of the minimum fair trial rights as the right  trial fairness thus: ‘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.’ This is known as the right to a defence. Read literally, in English at least, the right of defence contains a right to defend yourself in person or via an appointed lawyer; but if you are indigent and it is in the interests of justice, then a lawyer is to be provided free. The indigent have no choice of lawyer. There is some case law that supports this interpretation. In Freixas v Spain [2000] ECHR 53590/99 the European Court, ruling on the admissibility of an application, observed that ‘Article 6(3)(c) does not guarantee the right to choose an official defence counsel who is appointed by the court, nor does it guarantee a right to be consulted with regard to the choice of an official defence counsel.’ This point was also made, if somewhat more eloquently, by Mosk J of the Supreme Court of California: ‘While it might be desirable to recognize [the right to choose legal aid counsel] as an abstract principle, its application in the real world of criminal courts procedure is fraught with complications … Many a defendant charged with a commonplace violation, in the dreary solitude of his jail cell, contemplates his case as a cause celebre deserving representation by a Clarence Darrow or a Jerry Geisler.’ (Drumgo v The People (1973) 106 Cal. Rptr. 631, 940.)

However, that may not be the end of the matter, for the European Court has not been entirely consistent here. In full judgments, as opposed to admissibility decisions, the European Court has taken a different view. In Pakelli v Germany [1983] ECHR 8398/78 the European Court discussed the text of Article 6(3)(c). (Pakelli was not cited in Freixas). Crucially the European Court noted that there are important differences between the English and French versions of the ECHR:

31. Article 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(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, the French text here provides more reliable guidance.

Therefore, according to the French text the accused would have a choice in his legal aid counsel. In Croissant v Germany [1990] [1992] ECHR 13611/88 the European Court refined this view:

29 … It is true that Article 6(3)(c) entitles “everyone charged with a criminal offence” to be defended by counsel of his own choosing (see Pakelli v Germany). 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.

Croissant is interesting for two reasons. First, the European Court recognised the importance of the lawyer-client relationship to the right to a defence. And second, the right to a defence funded by legal aid is subject to limitations. A balancing exercise is necessary.  On the one hand, in the context of legal aid a defendant cannot enjoy a carte blanc in the choice of their lawyer. The public purse is not unlimited. Yet on the other hand this does not preclude a choice albeit a limited one i.e. from a range of legal aid providers. Indeed, the European Court seems to recognise this in Pakelli and Croissant. In fact, a choice, even a limited one, is essential if a proper lawyer-client relationship is to be created and maintained. This relationship is the foundation of a defence that is practical and effective; not theoretical or illusory. (Artico v Italy [1980] ECHR 6694/74, para 33.)

The relationship between lawyer and client is crucial to the effectiveness of the right to a defence. The nature of the lawyer-client relationship was summarised by O’Connor JA in the Canadian case of R v McCallen [1999] O.J. No. 202. While of course this was a case considered under the Canadian Charter (The right to counsel – section 10(b)) the reasoning is nonetheless equally applicable to the relationship between lawyers and clients under Article 6 ECHR. It bears quoting in full:

34 … The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsel’s ethical constraints, in the clients’ best interests.

35 In addition, the relationship of counsel and client requires clients, typically, untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel’s loyalty and dedication to the client’s case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

36 The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

37 In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

38 The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.

39 Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(b) right are of fundamental importance and must be vindicated when breached. (Emphasis added).

Thus it could be argued that the current regime for the provision of legal aid in criminal cases strikes an acceptable balance between the right of the accused to a defence of his choosing and the broader public interest maintaining an economically viable system of legal aid. However, if the Coalition removes the existing limited choice and replaces it with Hobson’s choice, then there is a good argument that the new legal aid regime would be incompatible with Article 6(3)(c).

Finally, we should also bear in mind that the requirement of fairness under Article 6 is constantly evolving (R v H [2004] UKHL 3, para 12 Lord Bingham). And ‘what the public was content to accept many years ago is not necessarily acceptable in the world of today … the indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago.’ (Lawal v Northern Spirit Ltd [2004] UKHL 35, para 22 Lord Steyn). Fifty years ago the provision of free legal assistance without a choice would have no doubt struck many as both generous and fair. Today, however, this may not be the case.

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