COMMENTby Jacqueline McGuigan
The legal system looks set to embark on a heavyweight contest between the justice system and the government.
On May 1, Judge Leonard QC sitting at Southwark Crown Court terminated a complex fraud trial because the defendants did not have advocates to represent them.
The defendants known as R v Crawley and others but more widely known as "Operation Cotton" are charged with offences of conspiracy to defraud after an investigation brought by the Financial Conduct Authority (FCA) which has its headquarters in Canary Wharf.
The defendants pleaded not guilty and they received legal aid to cover the trial costs.
The case was classified as a Very High Cost Case (VHCC) meaning an offence with which the defendant is charged is primarily or substantially founded on allegations of fraud or terrorism or other serious financial impropriety, or involves complex financial transactions.
In 2013 the Ministry of Justice (MoJ) announced their intention to cut fees paid to barristers in VHCCs by 30%.
The Bar announced their dissatisfaction with this decision and as a result barristers have declined to accept instructions for VHCCs.
Enter the ring, one Alexander Cameron QC (brother to Prime Minister David Cameron) who agreed to act pro bono (for free) for the defendants to argue that without suitable representation the defendants could not get a fair trial.
In the May 1 case, Alexander Cameron asked for it to be stayed ie termination rather than adjourned to January 2015 (or a later date) to enable the State to have available suitable barrister's to represent the defendants.
Alexander Cameron successfully argued that the defendants were entitled to the best possible choice of barrister to represent them and that there were no suitable barristers to represent them because of the dispute between MoJ and the Bar about the proposed legal aid cuts to VHCCs.
Judge Leonard QC found that the FCA as an arm of the State has a responsibility to provide adequate representation at public expense in the same way as the State.
The judge was 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 amounted to a violation of the process of the court.
Effectively, this meant that the case was terminated and the defendants walked free. Round one to Cameron.
The decision to stay the trial was appealed by the MoJ, FCA, and the Lord Chancellor.
The appeal was heard on May 13, headed by Lord Justice Levenson. The stay was overturned.
Essentially the appeal court found that the FCA is not an "arm of the state" and was not responsible for the provision of legal aid.
The court looked at the issue of delay and fair trial and dismissed as unsustainable Judge Leonard's finding that were was no realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future.
Commenting generally on the dispute between the Bar and the Government over the VHCC fees, Lord Justice Levenson said that it was of fundamental importance that the MoJ, led by the Lord Chancellor and the professions, continued to try to resolve the impasse that stood in the way of the delivery of justice in the most complex of cases and that the maintenance of a criminal justice system depended on a sensible resolution of the issues.
Round 2 to Government.
In my opinion the decision is extremely important because the UK leads the world in its justice system and it is without precedent that a criminal case has been terminated because the State has failed to provide adequate resources to enable the defendant to have a fair trial.
This cost saving comes as a direct result of the Lord Chancellor's attempt to cut circa £220million from the Legal Aid budget without properly thinking through the consequences. Chris Grayling is the first politically appointed Lord Chancellor who is not a lawyer.
By cutting the legal aid budget and not properly thinking through the consequences has led to this court fiasco.
We all want a legal system that is fair and transparent. We want a system where the innocent walk free and the guilty are punished.
We do not want a system where people walk free because of government failings in its policy decisions. The right to have a fair trial is a fundamental right that goes way back to 1215 and is often referred to as the "rule of law".
The Lord Chancellor must, on taking office, swear to respect the rule of law.
Lord Justice Levenson found in R v Crawley that there was no question of a present breach of the right to have a fair trial and, he said, if this state of affairs continued in the future then a stay could be deployed.
While this would only be as a last resort and used in the most exceptional of circumstances nevertheless the door is left open if the dispute between the Government and the Bar is not resolved.
Result - a draw. Neither side can be said to be a winner.
Jacqueline McGuigan works for TMP Solicitors based at One Canada Square in Canary Wharf.