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Fraud trial legal aid ruling overturned by appeal court Fraud trial legal aid ruling overturned by appeal court
(about 9 hours later)
A £4.5m fraud trial halted due to disputes over legal aid cuts has been restarted after the court of appeal ruled that the defendants could receive a fair trial. A £4.5m fraud prosecution, halted by disputes over legal aid cuts, has been restarted after the court of appeal ruled that the defendants will be able to receive a fair trial.
The ruling is a setback for the prime minister's brother, Alexander Cameron QC, who represented the men but will come as a relief to the justice secretary, Chris Grayling. The judgment prevents the immediate collapse of the case against five men, but it leaves the Ministry of Justice scrambling to recruit experienced defence lawyers to ensure defendants in this and other complex fraud cases will be adequately represented.
Overturning a stay put on the alleged land bank fraud case, the court stressed it could not become involved in the industrial confrontation between barristers and the minister. The decision is a setback for the prime minister's brother, Alexander Cameron QC, who appeared on a pro bono basis to argue that the accused would not be sufficiently well defended but will come as a relief to the justice secretary, Chris Grayling. At least eight other big fraud trials have been thrown into doubt by the dispute between criminal barristers and the MoJ.
"The criminal justice system in this country requires the highest quality advocates both to prosecute and defend those accused of crime," said the senior judge, Sir Brian Leveson. Barristers with expertise in what are known as very high cost cases (VHCC) are refusing to take new instructions in protest at the Ministry of Justice's imposition of 30% cuts in legal aid fees for such cases. The MoJ hopes to outflank resistance by independent barristers by boosting the size of the newly expanded Public Defender Service (PDS) and providing more state-salaried counsel.
"It is of fundamental importance that the MoJ [Ministry of Justice] led by [Grayling] and the professions continue to try to resolve the impasse that currently stands in the way of the delivery of justice in the most complex cases." Three weeks ago, a judge at Southwark crown court ruled that the alleged land bank fraud trial, R v Crawley, should be abandoned because the defendants were inadequately represented and there was no prospect of their receiving a fair trial.
Lawyers for the justice secretary had intervened in an emergency appeal in an attempt to resolve the dispute over legal aid cuts that has halted all complex fraud trials. In a unanimous judgment on Wednesday, the three court of appeal judges, Lord Justices Leveson, Davis and Treacy, ruled that the crown court judge, Anthony Leonard QC, had erred in law when he formally stayed the prosecution and that it was too early to decide that the men could not receive a fair trial.
Earlier this month, a judge at Southwark crown court ruled that the trial should be abandoned because the defendants were inadequately represented and would not therefore receive a fair trial. Overturning the stay, the appeal court stressed it could not become involved in the industrial relations confrontation between barristers and the minister. "The criminal justice system in this country requires the highest quality advocates both to prosecute and defend those accused of crime," said Leveson, the senior judge. "In addition they are the potential judges of the future.
Barristers with specialist experience in such complex cases, known as Very High Cost Cases (VHCC), are boycotting new instructions in protest at the MoJ's imposition of 30% cuts in legal aid fees. "It is of fundamental importance that the MoJ led by [Grayling] and the professions continue to try to resolve the impasse that currently stands in the way of the delivery of justice in the most complex cases."
Three judges, including Sir Brian Leveson, heard arguments about whether the fraud case, R v Crawley and others, should remain 'stayed' or be reactivated. Although the judges emphasised their reluctance to become involved in the dispute, their comments may provide comfort for barristers opposed to deep cuts in legal aid. "We are not saying that there could not come a time when it may be appropriate to order that this indictment be stayed," they concluded. Representation of the defendants would still have to be assessed.
At least another eight major fraud trials have been thrown into doubt while the dispute between criminal barristers and the MoJ continues. Skilled advocates were necessary to enable the justice system to function, they added. "The better the advocates, the easier it is to concentrate on the real issue in the case, the more expeditious the hearing and the better the prospects of true verdicts according to the evidence.
The defendants in the case, who maintain they would not receive a fair trial, were represented on a pro-bono basis by Cameron. "… We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work."
The MoJ maintains that the legal aid bill is too high and must be reduced. It has argued that its newly expanded public defender service will provide adequate representation for the defendants in R v Crawley. The MoJ maintains that the legal aid bill is too high and must be reduced. It has argued that the PDS, which employs 22 advocates, can provide sufficient representation for defendants in R v Crawley and other fraud cases that follow. It is advertising for new recruits.
The appeal was brought by the Financial Conduct Authority, which is prosecuting the case. An MoJ spokesperson said: "We welcome today's judgment. Legal aid remains available for all very high cost cases and even after the savings a QC working on a VHCC like this could expect to receive around £100,000.
The case will be restarted at Southwark crown court but there may still be difficulties in obtaining sufficiently qualified barristers from the npublic defender service. "We have one of the most expensive legal aid systems in the world and we have to address this. We are entirely supportive of the self-employed Bar and have made strenuous efforts to secure their continuing co-operation, including changing our original proposals and introducing support measures where possible. It remains open to barristers to take up these cases."
NEW The appeal was brought by the Financial Conduct Authority, which is prosecuting the case. A spokesperson said: "[We] welcome the court of appeal's decision. The FCA is committed to pursuing criminal action in appropriate cases and is pleased this case can now proceed towards trial."
Although the three court of appeal judges, Sir Brian Leveson, Lord Justice Davis and Lord Justice Treacy, emphasised their reluctance to become involved in the dispute, their final comments may provide some comfort for barristers opposed to deep cuts in legal aid. The case will be restarted at Southwark crown court before Judge Leonard. Lee Adams, a solicitor with the law firm Hughmans who represents defendants in the trial, said: "Our justice system is widely regarded internationally as one of the best. It relies on healthy competition between advocates to bring about the fairest result for everyone involved.
Despite overturning the stay and ruling that Judge Leonard at Southwark Crown Court had erred in law, the judges implied that the trial may only have been halted prematurely. "Despite the [appeal] court's political neutrality, this decision unfortunately does much to hurt that principle and will be relied on by a government seemingly hellbent on looking tough on crime whatever the cost to justice. We are considering what steps are now best for our clients." Nicola Hill, president of the London Criminal Courts Solicitors Association, said: "Now that this high-profile fraud trial has been reinstated the pressure is on Mr Grayling to resolve his stand-off with the legal profession. The Appeal Court judges have flagged up their concerns about the impact of the legal aid cuts and the importance of maintaining a thriving 'cadre of advocacy'. They are right.
"We are not saying that there could not come a time when it may be appropriate to order that this indictment be stayed," they said. Their representation would still have to be assessed. "The state's Public Defender Service might be able to bail the MOJ out of this particular crisis but it won't be able to mop up in all the other lower level cases which are the core work of our criminal justice system. We urge the Lord Chancellor to meet us and sort this mess out. "
Skilled advocates were necessary to enable the justice system to function and become judges in future, they added. Bill Waddington, chair of the Criminal Law Solicitors' Association, said: "Today's judgement highlights the chronic malaise at the heart of our justice system. The Government must urgently enter into a constructive dialogue with the legal profession to end this cat and dog fight, and preserve the fundamental principle of equality of access to justice."
"The better the advocates, the easier it is to concentrate on the real issue in the case, the more expeditious the hearing and the better the prospects of true verdicts according to the evidence. The Labour Justice spokesman Andy Slaughter MP said: "This will prove to be a hollow victory for Grayling. It will prove difficult to provide representation from the Public Defender Service for the Operation Cotton trial alone.
"... We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work..." "With at least seven more complex fraud trials already in the queue, the same problem will arise time and again unless he is prepared to expand the PDS dramatically. And even if he is able to recruit sufficient counsel with the requisite skills and experience, this will undermine the independent Bar and cost the Ministry of Justice a lot of money."
Lee Adams, a solicitor advocate who will represent the defendants at the reactivated crown court trial, said: "Our justice system is widely regarded internationally as one of the best. It relies on healthy competition between advocates to bring about the fairest result for everyone involved. Nicholas Lavender QC, Chairman of the Bar Council, said: "[The council] remains, as it always has been, willing to talk with the Ministry of Justice about potential solutions to the present difficulties which, as the Court of Appeal has said 'clearly flow from [the Lord Chancellor's] decision to reduce the funding' for VHCC cases.
"Despite the court's political neutrality, this decision unfortunately does much to hurt that principle and will be relied on by a government seemingly hell bent on looking tough on crime whatever the cost to justice. We are considering what steps are now best for our clients." "It is a shame that the Government did not heed the warnings it received. It is also a shame that the Government has tried to put the blame for its own actions onto barristers, when the truth is that no-one can be criticised for deciding not accept a 30% cut. As the Court of Appeal has said, 'they are fully entitled to take that view."