Yesterday’s collapse of a fraud trial for want of defence counsel has delivered a grievous blow to our supposedly peerless justice system. Grayling should have listened.
Criminal lawyers have a new hero – His Honour Anthony Leonard QC.
He delivered the ruling that most at the criminal bar had their fingers crossed tightly for: staying – or to put it more bluntly kicking out – the trial of five defendants charged with a £2.5m land banking fraud for want of counsel due to legal aid cuts. All deny all the charges.
His ruling was robust and comprehensive. If the Crown seeks to expend more public money appealing the decision, it is hard to conceive that it has much chance of success (though most expect it will have a pop).
Leonard laid the blame squarely at the feet of the state for the failure to ensure the defendants were represented.
‘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.’
But he was clear that his decision was taken ‘without regard’ to the continuing dispute between the bar and the Ministry of Justice.
‘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.’
His careful analysis looked at the ‘complex and substantial’ evidence in the 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. The case summary covers 55 pages.’
He noted the ‘painstaking enquiries’ made by the defence to find advocates, contacting 70 sets of chambers, 90 firms of solicitors, as well as the Northern Ireland bar and the Faculty of Advocates in Edinburgh.
That effort was ‘very substantial indeed’ but ‘unsuccessful’.
Leonard was clear: ‘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.’
He added: ‘The overriding objective of the Criminal Procedure Rules to deal with criminal trials justly is, therefore, subverted by failure of the state to provide adequate representation.’
Leonard considered the extremely limited number and availability of advocates from the Public Defender Service – none of the four silks employed is current available and their future availability was uncertain.
He considered the length of time needed to prepare the trial, and the practicality of PDS advocates who are employed to work 37-hours a weeks completing the task.
The first junior counsel for the Crown, he noted, has spent 1,000 hours preparing this case. An advocate appearing for one defendant would need substantially less time, but he reckoned they would need 450 hours.
‘That would only allow him an hour to read every 100 pages without consideration of the 194 spreadsheets. On the basis of a 37-hour week, the advocate will need a minimum of 12 clear weeks out of court to prepare this case.’
He also looked at the likely conflict of interest that may arise for the PDS, given the cut-throat defence run between two of the defendants and the likelihood that other defendants would seek to blame co-defendants.
He also bore in mind the effect that adjourning the case would have on other cases and the strain it would put on the court’s resources, which he said are already under ‘considerable stress’. The number of trial receipts at Southwark, he said, have gone up by 58% over the last year and the London courts have seen a 26% increase.
He concluded: ‘It is highly unlikely that the work which would have to be moved to accommodate this trial in January will find a home in any of the other London courts.’
Giving his reasons for the decision, he acknowledged that failure to grant an adjournment will deprive the victims of crime of the opportunity to see those allegedly responsible prosecuted.
But he weighed against that the fact there are other methods available to the victims to recover their losses civilly; and that there are other regulatory offences which could be brought against the defendants.
He looked at the state’s role in both prosecuting the case and providing representation.
‘Although the [Financial Conduct Authority] is answerable to HM Treasury rather than the attorney general, it is nevertheless an arm of the state which brings this prosecution. The responsibility to provide adequate representation at public expense is also the responsibility of the state.
‘I have considered whether the state should in those circumstances be entitled to benefit from its own failure by being granted an adjournment.’
The state, he said, also provides at public expense the court in which the case is to be tried. ‘An adjournment of the trial will involve an additional stress on the state’s provision of resources to try crime.’
The PDS, he said, has provided a pool of available advocates at public expense, but is ‘so small that it is insufficient to cover all the VHCC cases due to be tried unless control of listing these cases becomes no longer a judicial function but one effectively controlled and dictated by the availability of the PDS advocates’.
That, he said, would be a ‘dangerous precedent’.
Leonard was not satisfied that, given the availability of advocates and preparation time required, the PDS would be able to assist.
In relation to the independent bar’s willingness to take the cases, he said: ‘I have no reason to think that there is a realistic prospect that the bar will accept contracts in VHCC cases on the present terms.’
He accepted that legally aided defendants do not have a right to an advocate of their choice, but noted the solicitor’s duty to ‘assess which available advocate would best suit his client’s case’.
‘A solicitor is entitled to delay that choice until the moment that he judges the pool from which to choose is at its height,’ he said.
Leonard said: ‘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 best effect all, in my judgment, add to the reasons why an adjournment should not be granted.’
He concluded: ‘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.
Adding: ‘Whatever reason is put forward by the party applying, the court does not ordinarily grant adjournments on a speculative basis.
‘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).’
Lawyers’ welcomed the decision. But yesterday was hardly a good day for justice.
Quite the reverse. The collapse of the trial means that the many alleged victims, some of whom were elderly and lost their life savings, have lost the comfort of knowing that at least justice will take its course.
Of course lawyers warned justice secretary Chris Grayling this would happen. His ministry simply closed its eyes to the possibility.
Other major fraud trials, in a similar position, could now also be in jeopardy.
Moreover, it is difficult to see how Grayling’s handling of VHCCs is compliant with his duty as lord chancellor under section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act to ‘secure that legal aid is made available’ in accordance with the act.
What a mess.
Catherine Baksi is a Gazette reporter