Court of Appeal Overturns Legal Aid Judgment: Abuse of Process Law

The Court of Appeal has overturned the decision to halt a major fraud trial after barristers refused to represent the defendants because of cuts to legal aid.

R v Crawley

A few weeks ago I discussed the case of R v Crawley. It is a £4.5 million fraud prosecution brought by the Financial Conduct Authority as part of Operation Cotton. It concerns alleged land banking fraud, where land is divided into smaller plots and sold to investors on the basis that it can be developed and will soar in value; but the land is often protected with little chance of development being permitted, meaning it is worth a great deal less than the investors paid.

However, barristers have not been found to represent the five defendants because all barristers have refused to undertake the work at the new legal aid rates for Very High Cost Cases (VHCC), which were slashed by 30% in December 2013 by the Government. The barristers that had initially undertaken to do the work returned their briefs when the fees were cut.

Alexander Cameron QC, the Prime Minister’s own brother, appeared pro bono (for free) on behalf of the defendants and argued that they could not receive a fair trial without being properly represented in this hugely complex matter. Further, it was contended no independent barristers would take the case in the future, and there was no realistic prospect of sufficient defence advocates being available before January 2015 from the Public Defender Service (PDS) (a small group of defence lawyers employed directly by the Government). He therefore requested a stay on the proceedings (that is, indefinitely halting them).

Judge Anthony Leonard QC, sitting at Southwark Crown Court, agreed. He made two broad conclusions. Firstly, he held:

‘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.’

Secondly, he found:

‘Even if I am wrong about that, I further find that 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. Whatever reason is put forward by the party applying, the court does not ordinarily grant adjournments on a speculative basis’.

For those reasons Judge Leonard QC held that the prosecution was an abuse of the court’s process and stayed (stopped) the proceedings indefinitely. For the full article on Judge Leonard QC’s decision, which sets out the entire background, see this earlier article. Judge Leonard QC’s decision can be read here.

The prosecution appealed the ruling under section 58 of the Criminal Justice Act 2003, seeking to reverse the ruling. Under section 67 of the 2003 Act, rulings may only be reversed by the Court of Appeal where it is satisfied the ruling was wrong in law, involved an error of law or principle, or was not reasonable for the judge to have made.

An expedited appeal was heard on 12 May and judgment was handed down on 21 May. The Court of Appeal overturned Judge Leonard QC’s decision.

The Court of Appeal Judgment

In the Court of Appeal Sir Brian Leveson, President of the Queen’s Bench Division, noted that the judge’s two broad conclusions covered both categories of abuse of process. The two categories are:

1) Where the court concludes that the defendant can no longer receive a fair hearing. The focus in this category is firmly on the trial process itself. Where there cannot be a fair trial, the proceedings will be stayed;

2) Where the court concludes that it would be unfair to try the defendant. The focus in this category is on the integrity of the justice system. It applies where the court considers the defendant should not be on trial at all, even if the trial itself could be fair. For example, it will often be unfair to try a defendant where there has been bad faith, unlawfulness or misconduct by the authorities.

Ordering a stay of proceedings is a remedy of last resort. A stay should never be ordered where a lesser remedy will be just and proportionate in all the circumstances.

The Court of Appeal said the judge’s first conclusion engaged the secondary category of abuse. That is to say the first conclusion was to the effect that a stay was necessary to protect the integrity of the justice system because the Government had failed to provide representation. The Court said the judge’s second conclusion engaged the first category of abuse. In essence, it would be unfair to try the defendants because a trial has to take place in a reasonable time but there would not be any defence barristers available in that time; it would be unfair to try the defendants without representation. The Court of Appeal dealt with each of the judge’s conclusions in turn.

As to the first conclusion, the Court of Appeal held it was wrong to link the Financial Conduct Authority with those responsible for providing legal aid as two parts of the State. To conclude the State had violated the process of the court or that the integrity of the justice system had been jeopardised was simply wrong as a matter of principle.

In relation to the second conclusion, the Court of Appeal made a number of findings. Firstly, it held the judge was wrong to consider whether the PDS was able to cover all upcoming VHCC trials. Secondly, since PDS advocates accepted cases on a first come, first served basis, at the time there was a potential pool of advocates available for an adjourned trial in January 2015. The judge was wrong to think that the defendant’s solicitors could wait until October 2014 to instruct barristers (the latest time to allow for preparation for a January 2015 trial), and that by that time all the PDS advocates would be instructed on other matters, because he had also said no independent barristers would accept the work at the new legal aid rates. Therefore only PDS advocates would be available and they should have been instructed at the time. The judge was wrong to conclude advocates would be unavailable; there were sufficient PDS advocates available.

Overall, the Court of Appeal concluded that Judge Leonard made errors of law or principle and a number of his conclusions were not reasonably open to him. His ultimate finding did not constitute a reasonable exercise of the discretion open to him.

Accordingly, the case will be returned to Southwark Crown Court for trial.

The Court of Appeal’s judgment can be read here.

Comment

For my own part, the decision of the Court of Appeal is, with respect, incorrect.

It is fallacious not to treat the Financial Conduct Authority and the Ministry of Justice (which provides legal aid) as part of the unified State. If the FCA did not exist to prosecute fraud concerning financial services, then the State would create a body to do so; it is undeniably part of the State. Moreover, although the FCA is in no way responsible for legal aid, the State, as a whole, is responsible for legal aid. Granting an adjournment to allow a trial in January 2015 after the State’s reduction in legal aid resulted in a lack of legal representation indisputably benefits the State, irrespective of whether there is any fault. It was reasonable for the judge to conclude that such a benefit would violate the court’s process.

Furthermore, it seems to me that it was reasonable for the judge to consider the availability of PDS advocates for all VHCC trials. Even if enough advocates were available for this trial were they instructed immediately, the probability is there will be insufficient advocates for future cases. If independent barristers do not accept the cases, which is not likely, we shall again revisit the position of insufficient advocates for trials. Applications to stay prosecutions will surely follow.

It is vitally important, as the Court of Appeal noted, that there are sufficient high quality advocates for the justice system to function efficiently and justly. The Government cannot and should not ignore this. It is therefore imperative that the Ministry of Justice and independent barristers engage to end their dispute.

What are your thoughts?

Man Guilty of Syria Terror Plan

A man has today become the first person convicted of terrorist offences in connection with the conflict in Syria.

Mashdur Choudhury, 31, from Portsmouth, was convicted of engaging in conduct in preparation of terrorist acts by a jury at Kingston Crown Court.

The court heard he had travelled to Syria to attend a terrorist training camp. The prosecution said he wanted to be trained in the use of firearms and intended to pursue a ‘political, religious, or ideological cause’. It was said he had discussed his wish to become a ‘martyr’.

The father of two was arrested was arrested at Gatwick Airport upon his return to the United Kingdom.

Choudhury contended in court that he wanted to emigrate to avoid problems he faced at home. The jury did not believe his account and convicted him after a little over a day of deliberations.

Choudhury will be sentenced on 13 June and has been warned he faces a substantial sentence.

What is the law on preparing acts of terrorism?

The Offence

Section 5(1) of the Terrorism Act 2006 provides that a person commits an offence if he engages in any conduct in preparation of his intention to commit an act of terrorism or to assist others to commit terrorist acts.

What is ‘terrorism’? The effect of section 20(1) of the 2006 Act is that terrorism is defined as it is in the Terrorism Act 2000. Section 1 of the Terrorism Act 2000 defines terrorism as:

• the use or threat of ‘action’,
• which is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
• which is made for the purpose of advancing a political, religious, ideological or racial cause.

 ‘Action’ includes:

• serious violence against a person,
• serious damage to property,
• endangering a person’s life (other than the life of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public, or
• anything designed to seriously interfere with or seriously disrupt an electronic system. 

The definition of terrorism is very widely drawn and basically involves the use or threat of violence for political, religious, ideological or racial causes.

Therefore the offence of preparing terrorist acts is completed when an individual engages in any conduct in preparation of his intention to use or threaten violence for political, religious, ideological or racial causes, or to assist others to use or threaten violence for political, religious, ideological or racial causes.

Under section 5(3) of the 2006 Act, the offence is indictable only, which means that it is so serious that it can only be tried in the Crown Court before a judge and jury.

Section 5(3) of the 2006 Act also provides that the maximum sentence on conviction is life imprisonment.

Conclusion

Mr Choudhury can expect a significant sentence. It will be interesting to see if there are further convictions in relation to the Syrian conflict, given that that European Union’s anti-terror chief, Gilles de Kerchove, has said there are now hundreds of Europeans fighting in Syria.

What are your thoughts?

Huhne and Pryce Ordered to Pay Costs: The Cost of Being Prosecuted

Last week former cabinet minister Chris Huhne and his ex-wife Vicky Pryce were ordered to pay significant sums towards the costs of their prosecutions. What is the law on paying prosecution costs?

Huhne and Pryce

Huhne and Pryce were both sentenced to eight months’ imprisonment in March 2013 for perverting the course of justice. Pryce had accepted Huhne’s driving licence penalty points for speeding so that he could avoid a driving ban. For more information, see this article.

The prosecution made an application for Huhne to pay towards the costs of his prosecution in the sum of £108,541.15. This included £31,000 in relation to Operation Solar. Operation Solar concerned the part of the investigation considering the behaviour of barrister Constance Briscoe, who had given witness statements in support of Pryce’s assertion that Huhne had made her accept his penalty points. The prosecution later decided not to rely on Ms Briscoe’s evidence, after it became clear that it was untrue in a number of respects. Briscoe was found guilty of perverting the course of justice and sentenced to 16 months’ imprisonment earlier this month for her deceit.

The prosecution also made an application for Pryce to pay towards the costs of her prosecution in the sum of £48,695.56.

In addition, a further £1,950 was sought by the prosecution for the costs of the sentencing hearing and the hearing to determine costs. This sum was to be apportioned between Huhne and Pryce.

Neither Huhne nor Pryce objected in principle to the making of a costs order against them. However, Huhne objected to paying the costs towards Operation Solar. It was argued on his behalf that the criminality or otherwise of Briscoe’s conduct required investigation once her true involvement became clear. Therefore Huhne should not have to pay for an investigation that would have occurred in any event. Further, it was argued that the prosecution barristers’ fees were unreasonable.

Mr Justice Sweeney held it would not be just or reasonable to require Huhne to pay the Operation Solar costs. However, the barristers’ fees were reasonable. It was held the just and reasonable costs for Huhne to pay was the sum of £76,000 plus £1,750 to reflect a fair apportionment of the costs for the sentencing and costs hearings. Therefore the total to be paid by Huhne was £77,750.

As for Pryce it was held the just and reasonable costs for her to pay was the sum of £48,000 plus £1,200 towards the sentencing and costs hearings. The total was therefore £49,200.

What is the law on prosecution costs?

Prosecution Costs

Section 18 of the Prosecution of Offences Act 1985 provides that when a defendant is convicted or unsuccessful in an appeal the court may order the individual to pay the prosecutor’s costs.

As to the amount to be paid, section 18 only permits payment of an amount that the court considers ‘just and reasonable’ (hence Mr Justice Sweeney’s reference to what was just and reasonable). Further, section 18 requires the amount to be paid to be specified.

When will a prosecution costs order be made? Paragraph 3.4 of the Practice Direction (Criminal Proceedings: Costs) (2010) states that an order should be made under section 18 when the court is satisfied that the offender or appellant has the means and ability to pay. That is to say a costs order will not be made if the offender is unable to pay. It was generally thought that the amount of costs ordered should not exceed an amount which an offender could reasonably pay within a year; however, that may no longer be correct.

The position in respect of young offenders (those under 18) is similar to adults; they can be ordered to pay costs on conviction. However, there are some differences. Firstly, where a young offender is convicted in a magistrates’ court, the amount of any costs they are ordered to pay cannot exceed the amount of any fine imposed on them. Secondly, under section 137 of the Powers of Criminal Courts (Sentencing) Act 2000, the parent or guardian of the young offender will be ordered to pay the costs for the young offender, unless it would be unreasonable to make an order for payment. But where the young offender has attained the age of 16 the court may order the parent or guardian to pay: section 137(3) of the 2000 Act. Therefore for those under 16 the parent or guardian will always be required to pay unless it is unreasonable, but may be ordered to pay where the young offender had reached 16.

Conclusion

It is often forgotten that offenders will not merely be sentenced but will often be expected to contribute towards the costs of their own prosecution, especially in the magistrates’ courts. In those cases where the defendant is wealthy, these costs can be very high, as Chris Huhne and Vicky Pryce have discovered.

Major Fraud Trial Halted Over Legal Aid Cuts: A Fraudulent Government?

Last week a judge halted a major fraud trial before it even started after barristers refused to represent the defendants because of the cuts to legal aid.

R v Crawley

R v Crawley was a £4.5 million fraud prosecution brought by the Financial Conduct Authority as part of Operation Cotton. It concerned alleged land banking fraud, where land is divided into smaller plots and sold to investors on the basis that it can be developed and will soar in value; but the land is often protected with little chance of development being permitted, meaning it is worth a great deal less than the investors paid.

However, barristers could not be found to represent the five defendants because all barristers have refused to undertake the work at the new legal aid rates, which were slashed by 30% in December 2013 by the Government. The barristers that had initially undertaken to do the work returned their briefs when the fees were cut.

Alexander Cameron QC, the Prime Minister’s own brother, appeared pro bono (for free) on behalf of the defendants and argued that they could not receive a fair trial without being properly represented in this hugely complex matter. It is known formally as an abuse of process application.

Judge Anthony Leonard QC, sitting at Southwark Crown Court, agreed. He found that there was no realistic prospect of sufficient defence advocates being available before September 2015, including from the Government’s own Public Defender Service (a small group of defence lawyers employed directly by the Government). In those circumstances he held that the prosecution was an abuse of the court’s process and stayed (stopped) the proceedings indefinitely. The prosecution cannot now go ahead. Judge Leonard QC said 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’.

It is understood that the prosecution is now appealing the decision to stay the case.

Comment: A Government Fraud?

The case was classified for the purposes of legal aid as a very high costs case (VHCC). These are the most substantial, complex and difficult cases to be tried in the Crown Court. They are cases where the trial is expected to last at least 60 days. Legal aid fees for VHCCs were cut by 30% in December 2013 as part of the Government’s current round of sweeping cuts to legal aid.

Responding to the decision to stay the case, Nigel Lithman QC, chairman of the Criminal Bar Association (which represents the interests of barristers practising criminal law) said: ‘Skilled and experienced advocates are required to present [VHCCs]…In April 2013 the Government announced its intention to cut the fees paid to advocates conducting VHCCs by 30%. We opposed this proposal, as did many others. We understand that no barrister has signed a new contract to undertake a VHCC at the reduced rates’.

In response to Judge Leonard QC’s ruling, the Government attacked barristers for their decision to refuse the work. It claimed that on a case such as this one, a QC could expect to receive £100,000 and a junior barrister (any barrister that is not a QC, although they may still be very senior) could expect to receive £60,000. On the face of it, these are not small sums. Indeed, to the public at large they are great sums. However, they are not what the barristers would earn. Barristers would, firstly, have VAT deducted from that sum. They are then also required to pay a number of expenses, including chambers rent and clerking fees, and tax and national insurance contributions. By the time these deductions are made, the barrister could expect to actually earn about half of the sum stated by the Government for in the region of a year’s work. It should be remembered that in the Crawley case there were approximately 46,000 pages of evidence and nearly 1 million lines of numerical text. All of a sudden, those barristers are not earning a large sum at all, despite being among the very best in the country. How many top NHS consultants would work for £50,000 a year?

The Government has, I would suggest, presented these figures so that it appears in the minds of the public that barristers are refusing to work for very large sums of taxpayers’ money. But what it has actually done is presented the equivalent of a company’s overall annual turnover as its earnings, rather than its overall profit. It has wilfully presented misleading figures in order to make a gain in the public’s mind. In short, it has arguably behaved fraudulently itself. The Government’s own statistics watchdog, the Office for National Statistics, has criticised the Government for how it has presented barristers’ earnings.

It must be remembered that the Government sought to cut the fees of barristers by 30% once it had agreed a price with them to do the work.  Let us suppose for a moment that one of the Government’s roofs was leaking and it agreed a price with a builder for its repair. Let us then say that the Government tells the builder it will now be paying him 30% less than the agreed price. The builder refuses to do the work and says that no one else is likely to for that price either. This proves to be true and no one else agrees to do the work at that price.

I would suggest that no one would say the builder should be made to do the work at the new lower price. The same is true for barristers. The market determines a fair price. Instead of seeking to blame barristers, the Government should focus on its own failures in dismantling the justice system. To take our roof analogy once more, the Government should fix its leaking roof before it collapses. For once it collapses it is more costly and difficult to repair. Once the justice system is destroyed, it will be more costly and difficult to repair. Indeed it may be irreparable. The Government acts at its peril.

What are your thoughts?