The prosecution of five defendants charged with a £4.5m fraud will go ahead after the Court of Appeal overturned the stay granted by the Crown court.
Three judges, led by the president of the Queen’s Bench Division Sir Brian Leveson (pictured), overturned the decision of the lower court.
Rather than the ‘draconian action’ of a stay, they said the correct approach would have been to adjourn to continue to see if barristers would become available.
Giving the decision of the court, Leveson said that Leonard’s judgment involved ‘errors of law or principle’ and was ‘not reasonable’ as a number of the conclusions reached were ‘not reasonably open to him based on the evidence’.
‘In any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him,’ Leveson said.
The court held there was ‘no question’ of a present breach of fair trial rights under Article 6 of the European Convention on Human Rights and that if that arose in the future, a remedy short of a stay would suffice.
Leveson said: ‘We are not saying that there could not come a time when it may be appropriate to order that this indictment be stayed.’
But he said that remains ‘very much in the future’ and the problems about representation will have to be ‘developed considerably’ before such an ‘exceptional order’ as a stay could be justified.
While the court made it clear it did not want to get involved in the dispute between the bar and the lord chancellor over fees, it said it is ‘not unmindful of or unconcerned’ about the issues and the impact of the dispute.
Highlighting the importance of having skilled publicly funded advocates, Leveson urged the Ministry of Justice and the legal profession to consider that it is of ‘fundamental importance’ to resolve the ‘impasse’.
‘This will require effort by both sides,’ he said. ‘The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution of the issues that have arisen.’
Leveson added: ‘The criminal justice system in this country requires the highest-quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future.
‘The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence.’
He warned: ‘Poor-quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice.
‘We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.’
An MoJ spokesperson said: ‘We welcome today’s judgment. Legal aid remains available for all very high cost cases and even after the savings a QC working on a VHCC like this could expect to receive around £100,000.
‘We have one of the most expensive legal aid systems in the world and we have to address this. We are entirely supportive of the self-employed bar and have made strenuous efforts to secure their continuing co-operation, including changing our original proposals and introducing support measures where possible.
‘It remains open to barristers to take up these cases.’
The Financial Conduct Authority, which brought the case, also welcomed the decision.
Lee Adams, partner and solicitor-advocate at London firm Hughmans, which represented one of the defendants, did not rule out the possibility of an appeal to the Supreme Court saying he is considering ‘what steps are now best for our clients.’
He added: ‘Our justice system is widely regarded internationally as one of the best. It relies on healthy competition between advocates to bring about the fairest result for everyone involved.
‘Despite the court’s political neutrality, this decision unfortunately does much to hurt that principle and will be relied on by a government seemingly hell-bent on looking tough on crime whatever the cost to justice.’
But Phil Smith, partner at Tuckers, who also acts for one of the defendants, said: ‘There is no appeal; the judgment is sound in law.’
He said the decision was ‘disappointing’ but ‘not surprising in the least’.
‘Where it leaves us, goodness only knows,’ said Smith, suggesting that the judgment may pave the way for trials with unrepresented defendants.
He was uncertain of the impact on the relationship between the ministry and the lawyers, suggesting that the ministry may take the judgment as ‘a green light not to negotiate’.
Bill Waddington, chair of the Criminal Law Solicitors’ Association said the judgment highlights the ‘chronic malaise’ at the heart of our justice system.
‘The government must urgently enter into a constructive dialogue with the legal profession to end this cat and dog fight, and preserve the fundamental principle of equality of access to justice,’ he said.
Nicola Hill, president of the London Criminal Courts Solicitors’ Association said the judgment ‘lets the MoJ off the hook’ in the short-term, but she said ‘the pressure’ is now on the lord chancellor to resolve the ‘stand off’ with the legal profession.
Hill added that it is not just complex trials that are suffering from the ‘ill-thought-out, hasty legal aid reforms’.
‘Many cases in magistrates and Crown courts and police stations are floundering too.’
Urging the lord chancellor to meet with the profession, she said: ‘The state’s Public Defender Service might be able to bail the MoJ out of this particular crisis but it won’t be able to mop up in all the other lower-level cases which are the core work of our criminal justice system.’
Shadow justice minister Andy Slaughter MP said: ‘This will prove to be a hollow victory for Grayling. It will prove difficult to provide representation from the PDS for the Operation Cotton trial alone.
‘With at least seven more complex fraud trials already in the queue, the same problem will arise time and again unless he is prepared to expand the PDS dramatically.
‘And even if he is able to recruit sufficient counsel with the requisite skills and experience, this will undermine the independent bar and cost the MoJ a lot of money.’
Previously, at Southwark Crown Court, His Honour Judge Anthony Leonard had kicked the case out at the start of the month as none of the five was represented due to fee cuts introduced last December that led to barristers refusing to accept briefs for the most serious criminal cases.
He ruled that due to continued boycott by the bar, there was no reasonable prospect that a sufficient number of advocates would be available to do the trial in January 2015.
Leonard said: ‘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.’
At the appeal last week, Sean Larkin QC for the prosecution, the FCA, argued that sufficient advocates would have been available and that the public interest demanded that the case was merely adjourned, as a lesser remedy to a stay.
Read the full judgment.