The Court of Appeal has
overturned the decision to halt a major fraud trial after barristers refused to
represent the defendants because of cuts to legal aid.
R v Crawley
A few weeks ago I discussed the
case of R v Crawley. It is a £4.5
million fraud prosecution brought by the Financial Conduct Authority as part of
Operation Cotton. It concerns alleged land banking fraud, where land is divided
into smaller plots and sold to investors on the basis that it can be developed
and will soar in value; but the land is often protected with little chance of
development being permitted, meaning it is worth a great deal less than the
investors paid.
However, barristers have not been
found to represent the five defendants because all barristers have refused to
undertake the work at the new legal aid rates for Very High Cost Cases (VHCC),
which were slashed by 30% in December 2013 by the Government. The barristers that had initially undertaken to do the work returned their
briefs when the fees were cut.
Alexander Cameron QC, the Prime
Minister’s own brother, appeared pro bono
(for free) on behalf of the defendants and argued that they could not receive a
fair trial without being properly represented in this hugely complex matter. Further, it was contended no independent barristers would take the case in the
future, and there was no realistic prospect of sufficient defence advocates
being available before January 2015 from the Public Defender Service (PDS) (a
small group of defence lawyers employed directly by the Government). He therefore
requested a stay on the proceedings (that is, indefinitely halting them).
Judge Anthony Leonard QC, sitting
at Southwark Crown Court, agreed. He made two broad conclusions. Firstly, he held:
‘I am compelled
to conclude that, to allow the State an adjournment to put right its failure to
provide the necessary resources to permit a fair trial to take place now
amounts to a violation of the process of this court.’
Secondly, he found:
‘Even if I am
wrong about that, I further find that there is no realistic prospect that
sufficient advocates would be available for this case to be tried in January 2015
from any of the sources available to the defence, including the PDS. Whatever
reason is put forward by the party applying, the court does not ordinarily
grant adjournments on a speculative basis’.
For those reasons Judge Leonard
QC held that the prosecution was an abuse of the court’s process and stayed
(stopped) the proceedings indefinitely. For the full article on Judge Leonard
QC’s decision, which sets out the entire background, see this earlier article. Judge Leonard QC’s decision can
be read here.
The prosecution appealed the
ruling under section 58 of the
Criminal Justice Act 2003, seeking to reverse the ruling. Under section 67 of the
2003 Act, rulings may only be reversed by the Court of Appeal where it is
satisfied the ruling was wrong in law, involved an error of law or principle,
or was not reasonable for the judge to have made.
An expedited appeal was heard on
12 May and judgment was handed down on 21 May. The Court of Appeal overturned Judge Leonard QC’s decision.
The Court of Appeal Judgment
In the Court of Appeal Sir Brian
Leveson, President of the Queen’s Bench Division, noted that the judge’s two
broad conclusions covered both categories of abuse of process. The two categories are:
1) Where the court concludes that
the defendant can no longer receive a fair hearing. The focus in this category
is firmly on the trial process itself. Where there cannot be a fair trial, the proceedings will be stayed;
2) Where the court concludes that it
would be unfair to try the defendant. The focus in this category is on the
integrity of the justice system. It applies where the court considers the
defendant should not be on trial at all, even if the trial itself could be
fair. For example, it will often be unfair to try a defendant where there has been
bad faith, unlawfulness or misconduct by the authorities.
Ordering a stay of proceedings is
a remedy of last resort. A stay should never be ordered where a lesser remedy
will be just and proportionate in all the circumstances.
The Court of Appeal said the
judge’s first conclusion engaged the secondary category of abuse. That is to say the first conclusion was to the effect that a stay was necessary
to protect the integrity of the justice system because the Government had
failed to provide representation. The Court said the judge’s second conclusion
engaged the first category of abuse. In essence, it would be unfair to try the defendants because a trial has to
take place in a reasonable time but there would not be any defence barristers
available in that time; it would be unfair to try the defendants without
representation. The Court of Appeal dealt with each of the judge’s conclusions
in turn.
As to the first conclusion, the
Court of Appeal held it was wrong to link the Financial Conduct Authority with
those responsible for providing legal aid as two parts of the State. To conclude the State had violated the process of the court or that the
integrity of the justice system had been jeopardised was simply wrong as a
matter of principle.
In relation to the second
conclusion, the Court of Appeal made a number of findings. Firstly, it held the
judge was wrong to consider whether the PDS was able to cover all upcoming VHCC
trials. Secondly, since PDS advocates accepted cases on a first come, first served
basis, at the time there was a potential pool of advocates available for an
adjourned trial in January 2015. The judge was wrong to think that the defendant’s solicitors could wait until
October 2014 to instruct barristers (the latest time to allow for preparation for
a January 2015 trial), and that by that time all the PDS advocates would be
instructed on other matters, because he had also said no independent barristers
would accept the work at the new legal aid rates. Therefore only PDS advocates
would be available and they should have been instructed at the time. The judge
was wrong to conclude advocates would be unavailable; there were sufficient PDS
advocates available.
Overall, the Court of Appeal
concluded that Judge Leonard made errors of law or principle and a number of
his conclusions were not reasonably open to him. His ultimate finding did not
constitute a reasonable exercise of the discretion open to him.
Accordingly, the case will be
returned to Southwark Crown Court for trial.
The Court of Appeal’s judgment can be read here.
The Court of Appeal’s judgment can be read here.
Comment
For my own part, the decision of
the Court of Appeal is, with respect, incorrect.
It is fallacious not to treat the
Financial Conduct Authority and the Ministry of Justice (which provides legal
aid) as part of the unified State. If the FCA did not exist to prosecute fraud
concerning financial services, then the State would create a body to do so; it
is undeniably part of the State. Moreover, although the FCA is in no way responsible
for legal aid, the State, as a whole, is responsible for legal aid. Granting an
adjournment to allow a trial in January 2015 after the State’s reduction in
legal aid resulted in a lack of legal representation indisputably benefits the
State, irrespective of whether there is any fault. It was reasonable for the
judge to conclude that such a benefit would violate the court’s process.
Furthermore, it seems to me that
it was reasonable for the judge to consider the availability of PDS advocates
for all VHCC trials. Even if enough advocates were available for this trial
were they instructed immediately, the probability is there will be insufficient
advocates for future cases. If independent barristers do not accept the cases,
which is not likely, we shall again revisit the position of insufficient
advocates for trials. Applications to stay prosecutions will surely follow.
It is vitally important, as the
Court of Appeal noted, that there are sufficient high quality advocates for the
justice system to function efficiently and justly. The Government cannot and should not ignore this. It is therefore imperative that
the Ministry of Justice and independent barristers engage to end their dispute.
What are your thoughts?
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