Thursday, 1 May 2014

Serious fraud indictment stayed in R v Crawley and others

In the Crown Court at Southwark, His Honour Judge Leonard QC has ordered the indictment in a serious fraud trial to be stayed.  The ruling of the judge is available via the Judiciary website - HERE.

In January, the judge had ordered preparations for the trial to go ahead without counsel but he did say that he would consider 'an abuse argument if that becomes necessary, ....'

The background to this matter is that the Ministry of Justice - in its efforts to cut the justice bill - made severe cuts (30%) to remuneration paid to counsel in so-called Very High Cost Cases (VHCC).  These are lengthy and complex cases usually involving voluminous documentation and requiring considerable time to prepare.  It was not possible to find suitable counsel to represent the defendants in this case because those with the ability and experience to handle these cases are not prepared to work at the reduced rates.

More on this may be read at ITV News - Fraud trial halted in legal aid row  

The application
for the indictment to be stayed was, somewhat ironically, made by Alexander Cameron QC who acted pro bono and happens to be the Prime Minister's brother.  Reductions in legal aid have been a key policy of the coalition government.  The government argues that the cuts are necessary to save money at a time of financial difficulty but this argument can sound hollow given the massive expenditure in other areas such as overseas aid.  The staying of an indictment is an exceptional course for a trial judge to take - on this see Crown Prosecution Service on Abuse of Process.

The Right to a Fair Trial is one of the key rights in the European Convention on Human Rights.  Article 6(3)(c) guarantees those charged with criminal offences certain minimum rights including the right:
(c) 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;
Here, given the complexities of modern law and legal systems, the Convention is stressing the crucial importance to a fair trial of legal representation.  When,  for no fault of his own, a defendant is without representation in a complex case, it is clear that Article 6 cannot be complied with.  Inevitably, this point was accepted by counsel for the Crown - see Judge Leonard's ruling at paragraph 30.

It remains to be seen whether the Financial Conduct Authority will appeal Judge Leonard's ruling.  An appeal is possible under the Criminal Justice Act 2003 section 58.  A brief statement was issued by the Authority.

See the Statement by Leaders of the Bar on Very High Cost Cases - 1st May 2014

The Bar Council's response (at para 53) to the government's 2013 Transforming Legal Aid consultation suggested that the Bar's GFS Plus Scheme would be an attractive solution to the Ministry's concerns regarding VHCCs and they warned against the blunt 30% cut.  Sadly, the government did not listen.

For more on GFS Plus see the Bar Council's response at Annex 2. 

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