Where the government refuses to pay barristers sufficient fees to conduct the most serious criminal cases (VHCCs), judges should stay the proceedings, according to a retired Court of Appeal Judge.

Sir Anthony Hooper, who retired from the bench last year, told the Criminal Law Solicitors’ Association annual conference ‘the scene is set’ for challenges that could lead to defendants not being prosecuted due to the government’s unwillingness to pay counsel adequately.

Cases are due to start in Southwark Crown Court where the judge has been told it will not be possible to find advocates once the fee rates for VHCCs are cut by 30%. Hooper said if the government does not provide sufficient funding for defendants to be represented, those charged cannot have a fair trial.

In such circumstances, he suggested the judge is ‘obliged’ to stay the proceedings either fully or conditionally. ‘Once you have found that a fair trial is not possible, Article 6 requires you to stop the proceedings.’

Hooper said similar arguments had been successfully advanced in hearings concerned with exceptional criminal confiscation and civil enforcement orders.

He cited the case of R v P [2008] EW Misc 2 (EWCC), where a convicted drugs offender with assets of £4.5m escaped a confiscation order after His Honour Judge Mole stayed the proceedings after 30 barristers turned down the case because of low pay.

Meanwhile, the Law Society has advised solicitors to treat the withdrawal of barristers from VHCCs like any other change in legal team.