On 1 May 2014, Southwark Crown Court (Judge Leonard QC) stayed proceedings against five defendants in a complex fraud matter. The defendants were unable to obtain representation by counsel. Thus, they would not get a fair trial, whether tested by the standards of the common law or Article 6 of the European Convention on Human Rights.
The defendants claimed that their inability to obtain representation was due to counsel returning and declining briefs over cuts in Legal Aid fees to counsel. This case could be the first of many following the United Kingdom government’s changes to Legal Aid funding.
The defendants were charged with conspiracy to defraud, and possessing criminal property. The evidence was complex and substantial. The case against the five defendants amounted to more than 46,000 pages of documents. The case summary covered 55 pages. In essence, the Crown alleged that the defendants had been involved in a fraudulent land banking scheme. Some purchasers were given good title, some were not, and some sub-plots were sold more than once.
Of the five defendants, three had been deemed eligible for Legal Aid funding for representation by a silk and a junior, and two had been deemed eligible for a leading junior and junior.
On 22 July 2013, the Legal Aid authority notified that the case had been categorised as a very high cost case (VHCC) due to its complexity. Such cases receive specific levels of funding for defence counsel, determined by the Ministry of Justice.
In September 2013, the Ministry of Justice announced it was cutting fees paid to counsel in VHCCs by 30%. This would even apply to cases in which counsel had already been briefed. The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases.3
On 14 November 2013, the defence raised concerns that they would not have counsel for the trial. There was insufficient time for counsel, who might then have been instructed, to be ready for the 2½ to 3 month trial commencing in April 2014.
By 27 November 2013, all counsel had returned their briefs.
Now, Mr Alex Cameron QC, appearing pro bono, applied to stay the proceedings because the defendants were unrepresented through no fault of their own. He contended against grant of an adjournment, which would be based on the possibility that, at some unknown date, an adequately funded advocate may become available.
The Crown accepted that involuntary lack of representation would be inconsistent with the European Convention on Human Rights and common law rights. The Crown acknowledged that a fair trial could not presently be held. The Crown submitted that there was a reasonable prospect that advocates would be available to represent the defendants in the future, and that the Court should adjourn the trial to a future date, not stay the indictment.
Before considering the merits of whether to adjourn or stay the matter His Honour stated:
‘My decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.’4
The defendants’ solicitors had tried to find representation. They had contacted seventy (70) sets of chambers with barristers held out as competent for this work. They had looked beyond London. By 15 January 2014 there was one silk who put himself forward as willing to accept instructions. He withdrew on 16 January. Enquiries were made, without success, of the Bar of Northern Ireland and the Faculty of Advocates in Edinburgh.
Enquiries had also been made in January 2014, to the Public Defender’s Service (‘PDS’), a department of Legal Aid. The PDS had begun recruiting advocates. By the date of the present hearing, only a limited number of junior and senior counsel had been recruited. In particular, there was no available senior counsel until July 2014.
His Honour accepted that the efforts of the defence to find trial advocates had been very substantial, but unsuccessful.
The Crown made a number of suggestions to overcome unfairness to the defendants due to insufficient legal representation. These included that if there were insufficient silks available, the defendants could be represented by two juniors or even just one junior if appropriate. His Honour stated:
‘…it is the duty of the State to provide advocates at the required level of competence and experience pursuant to the court’s interpretation of the government’s own legislation. It is not for the defence to cut its just entitlement to representation to suit the State’5
The Crown suggested that, to level the playing field, the Crown could decline to adduce any bad character evidence relating to the defendants. His Honour noted that such an approach would result in a perversion of the trial process. The better representation a defendant had, the more likely he is to have his bad character adduced.
The Crown suggested that if the defendants were unable to find senior counsel, perhaps the Crown could reduce its own representation by removing its own senior counsel from the case. His Honour rejected this. Complex criminal trials rely on competent and experienced advocates on both sides.
His Honour was referred to Croissant v. Germany6, in respect of the right to choice of representation where the state pays for legal assistance. There it was considered sufficient that the court appoints a lawyer to defend an individual; the right of a defendant to choose his own counsel cannot be considered absolute. His Honour agreed that the defendants could not hold out for independent counsel of their choice to become available.
In determining whether he should grant an adjournment rather than the more drastic remedy of staying the indictment, His Honour considered:
- That a failure to grant an adjournment would deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted. To deny them that opportunity should not be lightly taken.
- Against that, there were other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a role in corporate activity in the future.
- On the other hand, the responsibility to provide adequate representation at public expense is also the responsibility of the State. Consideration had to be given to whether the State should be entitled to benefit from its own failure, by being granted an adjournment.
- An adjournment of the trial would involve an additional stress on the State’s provision of resources to try crime.
In view of the availability of barristers and the preparation time required His Honour was not satisfied that sufficient advocates would be available to assist these defendants at trial. Nor did he have reason to think that there was a realistic prospect that the Bar would accept contracts in VHCC cases on the present MOJ terms.
His Honour then stated:
‘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 process of the court
…
‘ 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’7
There was no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 or possibly even by September 2015, from any of the sources available to the defence, including the PDS. Granting such an adjournment would be unconscionable. The proceedings were stayed.
The judgment can be found at www.judiciary.gov.uk/judgments/r-v-crawley-and-others
Jason Voight
Footnotes
- 2013] VSC 48, upheld [2013] VSCA 99.
- R v Crawley and Others, Southwark Crown Court, unreported, 1 May 2014.
- Letter to Secondary Legislation Committee of the House of Lords, dated 10 November 2013, from the Chairman of the Criminal Law Bar Association, http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/2803-2804-VHCC-Criminal-Bar-Association.pdf
- R v Crawley and Others, Southwark Crown Court, unreported, 1 May 2014, [25].
- Ibid [41].
- (1993) 16 E.H.R.R. 135.
- Ibid [80], [84].
