Category: Northern Ireland

Brownlee, Re Judicial Review: QBNI 20 Mar 2013

The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules operate to constitute a breach of the applicant’s right to a fair trial pursuant to Art 6 of the ECHR. He was awaiting sentence, on a matter which might leave him subject to an indeterminate life sentence, but had no legal representation. The judge at trial had decided that he needed representation at a senior level. The LSC had cofirmed that having switched legal representation, fees would be available only on a fixed fee basis.
Held: The Rules were unlawful: ‘in order to avoid illegality there must be a modest adjustment to the impugned scheme or some other provision to enable the necessary adjustment to meet the exceptional and unusual circumstances which have arisen and to avoid the injustice which will thereby inevitably result if this is not done.’ Treacy J made an order of mandamus requiring the respondent, the Department of Justice to take all necessary steps to make Mr Brownlee’s right to legal aid effective.

Treacy J
[2013] NIQB 36
Bailii
Crown Court Proceedings (Cost) (Amendment) Rules 2011, European Convention on Human Rights 6
Citing:
Cited – P, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Cited by:
Appeal from – Brownlee, Re Judicial Review CANI 23-Oct-2013
The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee . .
At First Instance – In re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Criminal Practice, Legal Aid, Human Rights, Legal Professions

Updated: 20 November 2021; Ref: scu.503527

Kennedy v Small and Others (Practising As Small and Marken): QBNI 27 Jun 2013

The plaintiff claied s damages against the defendant solicitors for loss and damage sustained by the negligence and breach of contract of the defendants in the conduct of property transactions. He claims the professional fees expended, the reduced value of the Crumlin lands and the costs of the Antrim mortgage that has not been redeemed.

Weatherup J
[2013] NIQB 81
Bailii

Northern Ireland, Professional Negligence

Updated: 17 November 2021; Ref: scu.513892

Magee, Re Judicial Review: QBNI 28 May 2013

The claimant challenged a decision taken by the Department of Justice not to re-open or reconsider an earlier decision of the Secretary of State taken in 2002 to refuse him compensation under section 133 of the 1988 Act for the compensation of people who spent time in custody following a wrongful conviction. The Department of Justice in 2012 had declined to reopen the application for compensation on the grounds that, since the application had already been decided in 2002, the Department had no powers to entertain the reopening of an old application on his behalf. The applicant contended that the Department of Justice not only had the power to reconsider the 2002 decision, but also a duty to do so.
Held: Stephens J said: ‘The respondent also contends that section 12 of the Interpretation Act 1978 is not to be seen as meaning that the power to decide questions affecting legal rights remains an open ended one. Instead it should be considered in the light of the principle of certainty and finality in administrative decision-making.’ and: ‘Mr Coll, on behalf of the Department of Justice in Northern Ireland, referred to section 12 at page 193 of Wade, Administrative Law, 10th Edition which states that:
‘But this (section 12) gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.
For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act ‘from time to time as the occasion requires’. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose ‘legal rights are determined administratively are entitled to know where they stand.”

Stephens J
[2013] NIQB 59
Bailii
Criminal Justice Act 19888 133, Interpretation Act 1978 12
Northern Ireland
Cited by:
Cited – Subsea Intervention Ltd v The Comptroller General of Patents ChD 19-Nov-2015
The company appealed from refusal of re-instatement of its patent which had expired through non-payment of renewal fees. On payment of the fees, the Patent Office objected that the applicant was not the registered proprietor.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland

Updated: 17 November 2021; Ref: scu.513888

Regina v Livingstone: CANI 25 Jun 2013

The defendant appealed against his conviction for murder, saying that police officers had fabricated a confession, and had severely mistreated another detainee to concoct further evidence.
Held: The appeal was allowed. Had the material regarding the treatment of the second witness been made available it would have raised and suggested the point that the three officers were ready ti use unlawful means to secure the conviction: ‘We are satisfied that it would have provided a real prospect of providing a lead on evidence which would have been material to the issue of bias which was relevant in the case.’ It should therefore have been disclosed, and ‘the Farrell material, which has never been tested, would have opened a line of enquiry which might have affected the credibility of the police witnesses. Because of the non-disclosure the appellant lost the opportunity to pursue that line of argument. We have also concluded that the Bradley material raised evidence of wrongdoing in relation to the giving of evidence in that case by some at least of the police interviewers which may have influenced the assessment of the credibility of those witnesses by the learned trial judge in the appellant’s case.’

Morgan LCJ, Coghlin LJ and McCloskey J
[2013] NICA 33
Bailii
Citing:
Cited – The Attorney-General v Hitchcock 10-Jun-1847
Bias is an exception to the rule against collateral attack on credit . .
Cited – Regina v Foxford CANI 1974
The Crown in opening its case said that it would call two witnesses, but did not do so and only tendered them for cross-examination. That cross-examination produced evidence favourable to the defence, and the witnesses were then re- examined by the . .
Cited – Regina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Regina v Malik CACD 2000
Lord Bingham said: ‘If there is clear evidence that a police officer, whose credit and credibility are significant in the case before the jury, has been guilty of serious malpractice on an earlier occasion, that necessarily damages his credibility . .
Cited – Regina v Pollock CANI 24-Sep-2004
‘1. The Court of Appeal should concentrate on the single and simple question ‘does it think that the verdict is unsafe’.
2. This exercise does not involve trying the case again. Rather it requires the court, where conviction has followed trial . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland

Updated: 17 November 2021; Ref: scu.513864