The prime minister’s brother has acted pro bono to argue that five defendants charged with fraud cannot receive a fair trial as none is represented by counsel because of action against legal aid fee cuts. 

Alex Cameron QC (pictured) of 3 Raymond Buildings appeared at Southwark Crown Court today representing Brendan Daley, Scott Crawley, Daniel Forsyth, Dale Walker and Aaron Preston in the first case to be brought by the Financial Conduct Authority. All five deny charges of fraud.  

Reporting restrictions were lifted by His Honour Judge Leonard.

Sean Larkin QC, Ben Emmerson QC, Paul Raudnitz and Polly Dyer represented the prosecution, while Tom Little was instructed by the attorney general to act as a friend to the court.

The FCA conceded that the five defendants could not have a fair trial at this stage as none is represented and sought an adjournment. For the defence, Cameron argued that the case should not be adjourned, but stayed.

Cameron told the court: 'The state has failed to provide adequate representation to allow a trial to take place.'

The trial date, set down for next week, has been listed for the past 11 months. Following the imposition of 30% cuts to fees in very high cost cases (VHCCs) in December, advocates originally instructed returned the briefs.

All other barristers have continued the boycott of VHCCs despite the deal agreed between the Criminal Bar Association and Ministry of Justice to postpone further 6% fee cuts until after the 2015 general election in return for barristers suspending their protest action.

Cameron told the court it was not the fault of the defendants or the FCA that the situation had arisen, but said: ‘The state has failed to provide adequate representation to allow a trial to take place.’

There are, he said two potential sources of advocates – the independent bar and the Public Defender System.

But he said, the position, with the independent bar is ‘clear’ and remains unaltered by the deal with the MoJ - none will do the work.

The PDS, he said, is a ‘new animal for us all’. It is in a ‘nascent state’ and does not have sufficient advocates available.

In any event, Cameron said, representation by the PDS marks a ‘fundamental change’ in that advocates are not selected due to their skill, but by their membership of an organisation.

Despite insisting that he was not suggesting PDS advocates are less skilled than those at the independent bar, he pointed to entries in the Legal 500 directory and said there is a ‘profound difference’ between the two sets of representatives.

Use of the PDS, he said marks a shift from ‘an advocate for the case to an advocate of all cases, regardless of skill’.

In any event, he said, there is only one PDS silk available to do the trial, if it is put off until January and two unidentified silks who may be available from May.

Cameron told the court that: ‘There’s an element of craps-shoot about who gets an advocate and who doesn’t.’

For the FCA, Emmerson, accepted that ‘all best efforts’ had been made by the defence to secure representation. It is, he said, not the fault of the defendants and ‘incompatible’ with their European Convention and common law rights that they face charges without legal representation.

But, opposing Cameron’s application to have the case kicked out, he said a stay is ‘exceptional’ and the grounds for granting it are not made out.
A stay, he said, should not be granted if an alternative is available to ‘adequately address the unfairness to the accused’.

He argued there is a ‘reasonable or realistic prospect that competent advocates who have sufficient time to prepare will be available for an adjourned hearing.’ Therefore, he said, it is ‘not open’ to the court to stay the proceedings.

For the attorney general, Little warned that if Leonard went down the route of an adjournment it might be ‘one  or two years’ before the case goes ahead, which he said, would not be the be in accordance with the case management expected of judges. 

‘There must come a point where the court will not make an adjournment for lengthy periods, in fairness to the defendants and for the smooth running of the criminal justice system,’ said Little.

Judge Leonard is to rule on a stay on Thursday morning. 

An MoJ spokesperson said: 'Barristers have refused to work on this case - and a number of other very high cost court cases - because they do not agree with savings the government is making to legal aid. Even after the savings, if a QC picked up a case like this one, they could expect to receive around £100,000 for working on it, with a junior barrister receiving around £60,000.

'The government has made sure that the Public Defender Service has a number of suitably qualified advocates who could act in this case.'