A series of high profile fraud prosecutions risk collapse after HHJ Leonard QC refused to stay proceedings in a trial because barristers refused to represent the defendants in protest at legal aid cuts. Barrister Maryam Syed examines the case.
Judgment in the landmark R v Crawley and Others case at Southwark Crown Court is being heralded as a wake-up call signposting the reality of the legal aid cuts. The unprecedented decision to stay proceedings in the so-called “Operation Cotton”, a complex land banking fraud with a value of £4.5m, raises concern that legal aid cuts could leave defendants unrepresented in high profile cases.
In a painstaking and carefully considered judgment of 88 paragraphs, HHJ Leonard QC made it plain that the equality of arms principle and right to a fair trial and proper representation were bastions of the criminal justice system which the courts would defend.
Because of government cuts to legal aid and a 30 per cent reduction in fees for VHCC (Very High Cost Cases), which are traditionally the most complex and voluminous, since December, barristers have refused to undertake the work for such disproportionately low payment.
Three Raymond Buildings’ Alex Cameron QC – brother of the Prime Minister, appeared for the defendants pro bono to argue that proceedings should be stayed as the they were unrepresented through no fault of their own with no adequately funded advocate available.
The Crown, represented by four counsel, two of whom were Queen’s Counsel, conceded that this involuntary lack of representation would be inconsistent with the ECHR but a stay could be avoided by an adjournment for representation to become available.
Approximately 70 sets of chambers and lawyers in Northern Ireland and Edinburgh were approached as part of the efforts to find representation.
The judge made it plain he was not concerned with the political dispute but the right to a fair trial.
In marking that an arm of the state had brought the prosecution, the judge noted that the state must provide adequate representation at public expense, but that the Public Defence Service wouldn’t have the resources to do so.
The judge ruled the defendants could not thus receive a fair trial. He stated he was compelled to take the exceptional decision to stay the whole case. It was a violation of the court’s process to allow the state to seek an adjournment to put right its failure to provide the necessary resources for a fair trial.
This was the first of a series of linked trials. The second trial and six other major fraud trials are not governed by this ruling, but are clearly in jeopardy as the bar continues to refuse to work at lower rates.
Shadow Justice Secretary Sadiq Khan stated this ruling was foreshadowed by warnings that the legal aid cuts would lead to trials collapsing and miscarriages of justice.
The prosecution have until 3pm on the 2nd May to notify any appeal.
As part of the state’s traditional separation of powers, the judiciary has always meant to exist as a constitutional check on executive power – upholding the basic and fundamental rights of those under the law. Here, the judge did not see any realistic prospect of the bar agreeing to handle high profile cases at these rates, nor the PDS being able to cover it.
One might expect that for future complex prosecutions, the availability of proper representation will be one of the first issues, which needs to be decided.
Maryam Syed is a barrister at 7 Bedford Row.