Last week a judge halted a major
fraud trial before it even started after barristers refused to represent the
defendants because of the cuts to legal aid.
R v Crawley
R v Crawley was a £4.5 million fraud prosecution brought by the
Financial Conduct Authority as part of Operation Cotton. It concerned 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 could not be
found to represent the five defendants because all barristers have refused to
undertake the work at the new legal aid rates, 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. It is known formally as an abuse of process application.
Judge Anthony Leonard QC, sitting
at Southwark Crown Court, agreed. He found that there was no realistic prospect
of sufficient defence advocates being available before September 2015,
including from the Government’s own Public Defender Service (a small group of
defence lawyers employed directly by the Government). In those circumstances he
held that the prosecution was an abuse of the court’s process and stayed
(stopped) the proceedings indefinitely. The prosecution cannot now go ahead. Judge Leonard QC said 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’.
It is understood that the
prosecution is now appealing the decision to stay the case.
Comment: A Government Fraud?
The case was classified for the
purposes of legal aid as a very high costs case (VHCC). These are the most
substantial, complex and difficult cases to be tried in the Crown Court. They
are cases where the trial is expected to last at least 60 days. Legal aid fees
for VHCCs were cut by 30% in December 2013 as part of the Government’s current
round of sweeping cuts to legal aid.
Responding to the decision to
stay the case, Nigel Lithman QC, chairman of the Criminal Bar Association
(which represents the interests of barristers practising criminal law) said: ‘Skilled
and experienced advocates are required to present [VHCCs]…In April 2013 the
Government announced its intention to cut the fees paid to advocates conducting
VHCCs by 30%. We opposed this proposal, as did many others. We understand that
no barrister has signed a new contract to undertake a VHCC at the reduced rates’.
In response to Judge Leonard QC’s
ruling, the Government attacked barristers for their decision to refuse the
work. It claimed that on a case such as this one, a QC could expect to receive £100,000
and a junior barrister (any barrister that is not a QC, although they may still
be very senior) could expect to receive £60,000. On the face of it, these are not small sums. Indeed, to the public at large
they are great sums. However, they are not what the barristers would earn.
Barristers would, firstly, have VAT deducted from that sum. They are then also
required to pay a number of expenses, including chambers rent and clerking
fees, and tax and national insurance contributions. By the time these deductions are made, the barrister could expect to actually
earn about half of the sum stated by the Government for in the region of a year’s
work. It should be remembered that in the Crawley
case there were approximately 46,000 pages of evidence and nearly 1 million
lines of numerical text. All of a sudden, those barristers are not earning a large sum at all, despite
being among the very best in the country. How many top NHS consultants would work
for £50,000 a year?
The Government has, I would
suggest, presented these figures so that it appears in the minds of the public that
barristers are refusing to work for very large sums of taxpayers’ money. But what
it has actually done is presented the equivalent of a company’s overall annual
turnover as its earnings, rather than its overall profit. It has wilfully
presented misleading figures in order to make a gain in the public’s mind. In short,
it has arguably behaved fraudulently itself. The Government’s own statistics
watchdog, the Office for National Statistics, has criticised the Government for
how it has presented barristers’ earnings.
It must be remembered that the Government
sought to cut the fees of barristers by 30% once it had agreed a price with
them to do the work. Let us suppose for
a moment that one of the Government’s roofs was leaking and it agreed a price
with a builder for its repair. Let us then say that the Government tells the
builder it will now be paying him 30% less than the agreed price. The builder refuses
to do the work and says that no one else is likely to for that price either.
This proves to be true and no one else agrees to do the work at that price.
I would suggest that no one would
say the builder should be made to do the work at the new lower price. The same
is true for barristers. The market determines a fair price. Instead of seeking
to blame barristers, the Government should focus on its own failures in
dismantling the justice system. To take our roof analogy once more, the Government
should fix its leaking roof before it collapses. For once it collapses it is
more costly and difficult to repair. Once the justice system is destroyed, it
will be more costly and difficult to repair. Indeed it may be irreparable. The Government
acts at its peril.
What are your thoughts?
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