How should courts resolve cases hit by the bar’s continued boycott of very high cost cases?
Anyone sitting in court two at Southwark Crown Court on Monday would have witnessed a curious sight. (Aside from the jury in the Max Clifford case finally returning with a verdict on their ninth day of deliberations and the celebrity publicist genially thanking the dock officer after being convicted of eight counts of indecent assault.)
Alex Cameron QC, working for no fee, argued that five defendants facing fraud allegations would not have a fair trial, as they were not represented due to legal aid cuts introduced by his brother David’s government. All five deny the charges.
Cameron would not have been compelled to take the case by the cab rank rule, which does not apply to pro-bono representation, but would have chosen to do it for reasons that can only be guessed at. Save to say that the brothers Cameron must have interesting conversations when they get together.
Meanwhile, the prosecutor, the Financial Conduct Authority, drafted in the services of Ben Emmerson QC – more usually heard arguing for the rights of the underdog.
While conceding that unrepresented defendants would not have a fair trial, Emmerson argued that those whose defence is funded from the public purse do not have the right to choose their advocate.
There proceeded a great deal of circular argument about who should represent these men at trial, given the fact that no one at the independent bar will take the case due to the 30% fee cuts imposed in December.
It was suggested that the Public Defender Service (PDS) ride to the rescue. But even with its newly bolstered numbers, it boasts only four silks.
The case at Southwark, dubbed Operation Cotton, has five defendants – who will probably need to be represented separately given the likely nature of their defence.
It is listed for trial next week with a time estimate of 12 weeks. If the adjournment sought by the FCA is granted, it will be looking to start the trial in January.
I am told that any advocates taking the case will need at least six and a half months to prepare it, working solidly on that case alone and without taking any holidays or sick days.
It is unclear when five advocates with such empty diaries will be become free. The PDS said it has one identified silk available from January and two unidentified silks who may be free from May. The PDS indicated at court that it is not seeking to recruit further.
Meanwhile, a second Operation Cotton trial, with three defendants, is listed in January.
Then there are the other six fraud trials that are in the same position. In all seven trials affected by the fee cuts that are listed to start between May 2014 and September 2015, there are 28 legally aided defendants who require representation.
Of the others: Bevan, listed in September, with four publicly funded defendants is listed for 16 weeks; Steinberg, listed in September with three publicly funded defendants, is listed for 12 weeks; Dodgson, listed in September has four publicly funded defendants and is listed for 12 weeks; Wong, is listed in September with three publicly funded defendants, for 12 weeks; and Dobson is split into three trials in 2015 and has four publicly funded defendants with a combined time estimate of 24 months. All deny the charges against them.
Shakespeare, listed in September 2014, running for 14 weeks, is the only one where both legally aided defendants are represented – one by Alun Jenkins QC at the PDS and the second by a solicitor-advocate.
As Tom Little, acting as a friend of the court instructed by the attorney general, told His Honour Judge Leonard on Monday, it is a ‘lottery’ which case gets the limited advocates available. Not that there appears a sufficient number to cover any case, regardless of whether anyone instructed has sufficient time to adequately prepare.
Even if a sufficient number of PDS advocates can be drafted in, the defendants will have to consent to their use and the PDS will have to get over the matter of any conflicts of interest that arise.
Leonard is certainly in an unenviable position. All parties concede the trial cannot go ahead next week. But to stay or not to stay, that is the question.
Granting an adjournment merely punts the problem to be dealt with at a later date. The court cannot adjourn cases indefinitely – that is unfair to the defendants and anathema to proper case management and to the proper running of the criminal justice system.
Staying will not be popular with the FCA, whose virginal prosecution this is; or with government, or with the tabloids, who will no doubt express the view that greedy fat-cat barristers are failing to enable justice take its course with alleged fraudsters.
There is the consideration of the funds that have been spent preparing the prosecution and defending the case thus far, which will have to be duplicated, if the case recommences.
It will also set a precedent for the way the other six trials are dealt with, which could leave prosecutors and the government with large amounts of egg on their faces.
It may be that Leonard will take up the suggestion put forward by the attorney’s man, Little: that he pass the decision on to a High Court judge to deal with the conduct of all seven cases at one single hearing.
That would certainly appeal to me.
Catherine Baksi is a Gazette reporter