Legal aid cuts cause case to collapse

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A joint trial of five defendants accused of serious fraud offences has today been stayed due to the recent cuts to legal aid. The trial, R v Crawley and others, codenamed Operation Cotton, has previously been adjourned on several occasions due to the defendants being unable to find any barristers to represent them.

Due to the seriousness and complexity of this case, it is classified as a Very High Cost Case, more commonly referred to as a VHCC. In this particular case the volume of papers amounts to some 46,030 pages. There are in addition 194 excel spreadsheets with a combined total of 864,200 lines of entry and the Case Summary covers 55 pages alone.

As of December 2013, and part of the wider legal aid cuts, the government implemented a 30% reduction in fees payable to barristers for VHCC’s. As barristers are self-employed they were faced with a choice, to either accept cases under the new rates, or not. To date no barristers have accepted any cases under the new rates.

The Operation Cotton case has been the first VHCC case to come to Court under the new rates. The defendants were among eight men charged in April last year with fraud over the alleged tricking of investors over a scam to buy land and sell it at vastly inflated profits.

The trail was due to start this week on Monday 28th April. Upon commencement of the trial, Alex Cameron QC, appearing pro bono, made an application to stay the proceedings on behalf of the defendants. It was argued that the proceedings should be stayed because the defendants are unrepresented through no fault of their own. Further, that no adjournment should be granted because the possibility that at some unknown date in the future an adequately funded barrister may become available is no basis on which to grant an adjournment.

The Crown accepted that involuntary lack of representation would be inconsistent with Article 6(3) of the European Convention on Human Rights and common law rights. As a result, they accepted that a fair trial cannot be commenced this week. However, it was the Crown’s position that there is a reasonable prospect that barristers will be available to represent the defendants in the future and the trial should be adjourned to a future date rather than stayed.

In an extremely detailed judgement, described as a landmark ruling, His Honour Judge Leonard QC rejected the Crown’s submissions and stayed the proceedings. HHJ Leonard QC concluded at paras 80-88 stating:

“80. I have reminded myself that a stay should only be granted in exceptional circumstances and that in most cases an adjournment can cure what otherwise might amount to an abuse of the process of the court.

81. I have taken into account that it is common ground between the parties that where the defendant is not at fault, in a case of this complexity the defendants could not receive a fair trial without advocates to represent them.

82. I have considered The Crown Prosecution Service v. Cambell; McInerney v. The Financial Services Authority; The Medicines and Healthcare Products Regulatory Agency v. Carlton [2009] EWCA Crim 997 in which the Court of Appeal dealt with applications to stay confiscation proceedings because there was no appropriate representation. In giving the judgment of the court, Hooper LJ said:

“We reached the conclusion that the fact that in the future an adequately funded advocate may be available was no justification for an adjournment. The problem identified in this case is not a new one: see e.g. the decision of HHJ Mole QC reported on BAILII as P [2008] EW Misc 2 (EWCC). That decision was handed down over a year ago.”

83. I agree with Mr Little that I should not read too much into that decision where the issues were different from those that I face, not least in that I am dealing with a decision whether to grant an adjournment in respect of a serious allegation which is as yet unproven. However it does provide some support for the care that I should take before granting an adjournment where there is no realistic prospect that in the future a suitable advocate will be available.

84. Having considered all these matters, 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.

85.The knock-on effect on other trials, the waste of court resources and the need to disregard the Criminal Procedure Rules designed to protect the court system from abuse and to ensure that scarce resources are used to the best effect all, in my judgement, add to the reason why an adjournment should not be granted…

86.Even if I am wrong about that, I further find that there is no realistic prospect the sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available

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.

87. It would be unconscionable to put this trial off to September 2015 with the second trial being heard in 2016. On what I now know, there is no basis on which I could find that the availability of advocates would be any different then than it will be in January 2015. In addition it is likely to lead to a violation of the reasonable time requirement in Article 6(1).

88. In those circumstances I stay the proceedings against these five defendants.”

The full judgment is available here.

The prosecution can appeal the stay and were given until 3pm tomorrow to notify the defence and the court whether they will do so.

Shadow justice secretary Sadiq Khan described the case collapsing as ‘an astonishing indictment’ of the government’s policies. ‘Time and again ministers have been warned their changes to legal aid could lead to miscarriages of justice and trials collapsing. Today, these warnings have come true.’

Mukul Chawla QC, Head of Chambers at 9-12 Bell Yard, tweeted: ‘HHJ Leonard QC’s analysis of Govt failures in relation to VHCCs is one of the most polite, yet devastatingly crushing condemnations of MoJ.’

The result of the stay means that the case is effectively adjourned indefinitely. The Courts are not prepared to hear the case as to do so would result in the defendants not receiving a fair trial.

At present the government have reserved any comment on the ruling, as they will need to carefully consider their position. Nevertheless, today’s ruling has come as a blow to the legal aid cuts regime and a victory to justice.

01/05/2014

Dale Timson

LLB (Honours) Student & Aspiring Barrister

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One thought on “Legal aid cuts cause case to collapse

  1. It’s a shame that the same care and attention is not used when considering the suitability of defence counsel in the average criminal case . Yet again , and through no fault of the legal profession , we see high end white collar crime being rewarded whilst what is left of the prison system is overcrowded with mostly petty offenders and recidivists .

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