The consultation period on the government?s Transforming Legal Aid paper has attracted adverse comment from all quarters, including the senior judiciary and even its own Treasury Counsel. One of the most controversial proposals is the removal of choice of lawyer from anyone arrested or charged with a criminal offence who wishes to rely on legal aid. This is central to the price competitive tendering model as it is the only way in which the government can guarantee contracting firms an equal share of work in their area. Any legal challenge will undermine the ability of the government to bring price competitive tendering into effect.

Parliament?s approval

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013. Under section 27 (4) "[an] individual who qualifies ? for representation for the purposes of criminal proceedings ? may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).?

Section 27(6) limits choice in a relatively narrow way: for example, to a specified group of providers (eg those holding a legal aid contract), or the number of legal representatives who can act for any individual at any one time, or restriction on the right of the individual to appoint a new legal representative in place of one previously chosen. But there is still a choice of representative.

However, s27(6)(a) allows for the right of choice not to apply in cases of prescribed descriptions and by s27(8) "regulations may provide that in prescribed circumstances the Lord Chancellor is not required to make available representation for an individual by a prescribed representative?. The Lord Chancellor may change the regulations to deprive a defendant of his choice of lawyer in certain circumstances. But sections 41(6) and 41(7)(j) make it clear that this cannot be done by statutory instrument unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament where these changes concern section 27(6)(a) or (8).

ECHR

Any change in the law will have to be compatible with the European Convention on Human Rights. The right to a fair trial is enshrined in article 6 of the ECHR. At article 6(3)(c), an individual has the right "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?.

If an individual cannot pay for a lawyer, the State must provide one for him but the use of the word "or? may suggest that the lawyer provided does not have to be one of his own choosing.

The case law is a little inconsistent. In Freixas v Spain [2000] ECHR 53590/99, the European Court of Human Rights stated 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 was an admissibility ruling only and related to a case where the court appointed lawyer was not a specialist in criminal law. However, no evidence was presented by the applicant, himself a lawyer, that his appointed lawyer had been incompetent and the application was ruled inadmissible.

Translation discrepancy

The Court in Freixas did not refer to the judgment in Pakelli v Germany [1983] ECHR 8398/78, which was a full judgment rather than an admissibility decision. In Pakelli, the Court examined the interesting difference between the English and the French versions of article 6(3)(c). As stated above, the English version uses the disjunctive "or? to link the three rights: 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. The Court noted that "the French text utilises the equivalent ? ?ou? ? only between the phrases enouncing the first and the second right; thereafter, it uses the conjunctive ?et?.?

The Court could find no explanation for the late change in the English version in the Travaux préparatoires. Therefore, according to the French text, a defendant has a choice in his legal aid lawyer and according to the Court "[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.?

In Croissant v Germany [1992] ECHR 13611/88, the Court confirmed by reference to the Pakelli v Germany case that article 6(3)(c) entitles "everyone charged with a criminal offence? to be defended by counsel of his own choosing. The right was not, however, considered to be absolute. The Court specifically recognised the importance of a relationship of confidence between lawyer and client but also that there was a balancing exercise in the use of public funds.

In Artico v Italy [1980] ECHR 6694/74, the Court was concerned with a case where the applicant had been appointed a lawyer under legal aid who refused to take up the case. The Court stated that "the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive?.

Lawyer-client relationship

The importance of the lawyer-client relationship to the proper and effective defence of an individual is recognised in these cases and, although there is an acceptance that public funds are limited, this cannot extinguish a right to choice of legal representative. It may be appropriate for the choice to be limited, for instance to a range of lawyers who are contracted to undertake legal aid work.

The current UK legal aid system strikes the right balance. Removing choice of lawyer from anyone who cannot afford to pay is most likely to be incompatible with article 6(3)(c).

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