Crawley – a quick look and some implications

R v Crawley and Ors, a ruling given in Southwark Crown Court in a pre-trial hearing by His Honour Judge Leonard QC on Labour Day is an important staging post in the ongoing battle over legal aid cuts. The five defendants had been charged with fraud offences and prosecuted by the FCA; three more awaited trial in a subsequent case deriving from the same events. The evidence was complex and substantial (46,030 pages, 194 excel spreadsheets and a Case Summary of 55 pages). At the time of this hearing, all defendants were legally aided. In the course of the case, the Ministry of Justice (“MoJ”) sought to implement cut fees of the order of 30% for Very High Cost Cases (VHCCs). As the judge puts it:

The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases. The Bar Standards Board was involved in this and the Code of Conduct was amended to undeem such work. Sensing that a number of cases might be affected, the MoJ allowed the previous rates to be extended to any trial which was due to start before 31st March 2014. In all other cases the Bar were given until 2nd December 2013 to decide whether to accept a VHCC contract on the new terms. In this and every other case which did not fall within the concession provided by the MoJ they declined to accept instructions.

By November the defence were expressing concern that would not have counsel for the trial as no suitable barrister would take the case. By April 2014, when the trial was due to take place, the court heard the argument that the defendants were unable to obtain suitable counsel and that the case should be stayed as an abuse of process. The Prime Minister’s brother, Alex Cameron QC – an experienced fraud and crime Silk – advocated for the defendants “bro bono” a typo in the judgment which should not intentionally be read as for the criminal defence brotherhood. He did it for nowt, but his glass will no longer go unfilled in the environs of Temple. Joking aside, the judge also noted:

At previous hearings the solicitors representing the interests of their clients have been keen to stress that they do not want their clients to become the victims of a dispute between the Bar and the Government. I agree with them.

Similarly my decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.

What had the defendants’ solicitors done to try and obtain representation? Their work included:

  • contact with (what looks like to me) 105 sets of chambers competent to undertake this sort of work (and not just in London, Scottish and Northern Irish advocates also appear to have been contacted)
  • contact with the Public Defenders Services (the PDS) who were not in a position to act for all defendants in a trial beginning in April 2014.
  • contact with 90 firms of solicitors with Higher Court Adovcates to see if they could provide Advocates.

Everyone refused or did not get back to them. It was the legal equivalent of Gdansk in the 1980s. As a result, it was accepted by the prosecution, that it was through no fault of their own that the defendants they were unrepresented and that none of them could receive a fair trial unrepresented and –in the short term – none of them were likely to be able to be represented. Whilst the prosecution were said to have raised, “important issues” on alleged failings in the defence’s approach to the search (they were said to have concentrated more on Magic Circle HCAs than small firm HCAs when asking solicitors), the Judge also described their attempts as “very substantial indeed” . Nor did the judge accept that the defendant should accept senior juniors in the place of QC: “It is not for the defence to cut its just entitlement to representation to suit the State.” Interestingly also the prosecution suggested that the case would proceed with slimmed down basis (e.g. by preventing prosecution from producing bad character evidence). The suggestion judge described as, “a perversion of the trial process”.

Interesting issues arose as regards the Public Defender Service. Two silks were available but at the initial stage the PDS Code of Conduct prevented them both acting where “…a client’s best interests conflicts with the interests of…another client of the salaried service…”. This approach is modelled on the conflict rules in the solicitors firm. Interestingly:

“the solicitors were told that the Code was under review, they judged, because the Code was binding on all parties, that where there was a potential conflict between the defendants, it would not be ethically proper to proceed until the Code had been amended. I do not criticise them for that decision.”

It is difficult to see how they could have done anything else. That code was amended in March 2014. Although arguments and conflict-of-interest continued the PDS claimed they could now act. Nor was the PDS able to offer a junior barrister (as the lead defendant’s representation order entitled them to have). The solicitors also took the view that, “They would be failing in their professional duty to advise their client, as a matter of expediency, to accept one or those two silks of whom they have had no experience and cannot personally vouch for.” In the meantime, the PDS recruited more barristers and began to indicate they could offer representation although not in time for the predicted trial start date. Also, “The PDS consider that, with the revised Code, they can manage all conflicts.”

The defence accepted that they were, “required to make use of advocates employed by the PDS if they are available.” Article 6(3)(c) of the ECHR providing (only), the rights: “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” As the judge put it:

In my judgment the defendants cannot hold out for independent counsel of their choice to become available and Mr Cameron QC does not seek to argue that. However, the solicitor acting for a defendant is under a duty to advise his client on the best counsel available to them and is entitled to hold off instructing anyone until he has the best possible choice available to him, so long as that delay does not jeopardise the date set for trial and the ability of advocates to be trial ready by that date.

He also, “ascertained that, were I to grant an adjournment this trial could be heard on 15th January 2015 with the second trial to follow on. If that is not practicable then the case could not be listed until September 2015.” He also engaged in a calculation of what time it would take an employed barrister to prepare to case as part of his calculation as to, “whether there are sufficient employed advocates to cover this case when those same advocates may be required to prepare for and appear in other cases.” And whether, “the trial could ever take place.” I’m sure this was music to the ears of the private bar. Also, I wonder how often if ever judges look at private barristers diaries (or indeed the diaries are prosecutors) to determine whether they are really going to be able to take on a case when seeking an adjournment? [This is not a rhetorical question: I’d be genuinely interested.] Equally, there is a proper and legitimate interest in proper assurance that lawyers have adequate time to prepare their cases.

Furthermore, delaying the trial would disrupt other cases, being inconsistent with the overriding obligations to justice system. Similarly, splitting the trials if one or more of the defendants could get representation was also seen as an anathema to the interests of justice.

Ultimately, he decided that there was not a realistic prospect of a fair trial in January or September and that there should therefore not be an adjournment to allow that to take place. He considered the following factors:

  • “Failure to grant an adjournment will deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted. To deny them that opportunity should not be lightly taken. Against that I judge that there are other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a rôle in corporate activity in the future.
  • Although the FCA is answerable to HM Treasury rather than the Attorney General, it is nevertheless an arm of the State which brings this prosecution. The responsibility to provide adequate representation at public expense is also the responsibility of the State. I have considered whether the State should in those circumstances be entitled to benefit from its own failure by being granted an adjournment. The State also provides at public expense the court in which the case is to be tried. An adjournment of the trial will involve an additional stress on the State’s provision of resources to try crime.
  • Whilst the PDS has provided a pool of available advocates at public expense, it is so small so that it is insufficient to cover all the VHCC cases due to be tried unless control of listing these cases becomes no longer a judicial function but one effectively controlled and dictated by the availability of the PDS advocates. That would be a dangerous precedent, see De Oliveira.
  • Bearing in mind availability and preparation time required I am not satisfied that sufficient PDS advocates would be available to assist the defendants in this trial. It is not in the interests of justice to try each defendant separately. I have no reason to think that there is a realistic prospect that the Bar will accept contracts in VHCC cases on the present terms.
  • Whilst Article 6(3) does not provide the legally aided defendant with the right to an advocate of his choice, it still permits the solicitor to carry out his duty to assess which available advocate would best suit his client’s case. A solicitor is entitled to delay that choice until the moment that he judges the pool from which to choose is at its height. That may be at any time between now and early October.”

He also indicated:

Having considered all these matters 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. The knock-on effect on other trials, the waste of court resources and the need to disregard the Criminal Procedure Rules designed to protect the court system from abuse and to ensure that scare resources are used to best effect all, in my judgment, add to the reasons why an adjournment should not be granted.

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.

As I understand it, it is possible to apply for stay to be lifted subsequently but his judgment also seems to warn against that possibility:

It would be unconscionable to put this trial off to September 2015 with the second trial being heard in 2016. On what I now know, there is no basis on which I could find that the availability of advocates would be any different then than it will be in January 2015. In addition it is likely to lead to a violation of the reasonable time requirement in Article 6(1).

A quick deal on VHCC fees could get round that problem – perhaps.

So the case was stayed. What are the implications?

  1. Firstly, my learned friends on Twitter suggesting that although such decisions are not usually given leave, given the importance of this case an appeal hearing is likely to be granted if the FCA seek it. We shall see. I’d not like to comment on the prospects of success. There’s a fair bit of building up of the judgment’s care and robustness at the moment by some commentators. I’d not take that too seriously at this stage.
  2. Secondly, let us assume the decision stands. As the judge suggests, the defendants may face lesser charges or civil action but failing that the accusations will not be tested and the victims will be incredibly hacked off.
  3. Thirdly, what can the Lord Chancellor do to rescue a key part of his legal aid policy? It may be that he can do nothing and concedes on VHCCs. There is the interesting issue of whether a boycott of very high cost cases might be a breach of the Cab Rank Rule. This would involve the Lord Chancellor (or someone else) arguing that the VHCC fee was in fact a proper fee and that it was not therefore legitimate for the Bar to turn down the cases en masse. I doubt he’ll bother complaining against every single barrister contacted, even if he could identify them. He’ll make the same point in a rather different way which is by parading what he expects the barristers will have earned before a somewhat incredulous public (with sympathy for who is anyone’s guess).
  4. Fourthly, he could sit it out, take the occasional publicity hit on stays (reports of about a dozen or so VHCC trials in the pipeline where similar issues may arise) and see if the VHCC boycott starts to unpick, whilst the prosecution and LAA seek to manage cases away from VHCC problems. Without success here, the ability to prosecute serious complex crime (not ‘just’ fraud either) will be seriously compromised. Whilst there will be some handwringing about reputation of the City I’m going to gently suggest the City is more concerned about next week’s tube strike than this year’s Barristerial (and Solicitor) boycott; at least for now.
  5. Fifthly, the judge reported that the expected size of the PDS advocacy unit will be six QC’s, ten Senior HCA’s and two junior HCA’s by July and that there were no plans for greater expansion. Further expansion would be a possibility. The issues that this poses around conflicts of interest are extremely interesting. The new (March 2014) PDS Code is here. It’s possible that the courts might not accept this approach as lawful (ultimately confidentiality issues are a matter for the court, and they’ve taken quite robust lines on occasion – and one can see them being particularly careful here). Alternatively, it might accelerate consideration of the differences between the PDS, Bar and Solicitor rules on conflicts. Ultimately that might mean a larger, PDS (or a PD advocacy service independent of the LAA) and solicitors firms with weaker conflict rules. It may also mean a defeat on legal aid rates for VHCCs and the axe for Grayling if the crisis escalates.
  6. Sixthly, it was often suggested in the past that defences in complex fraud trials be funded by a levy on the City (my earliest recollection of this is it emanated from LAG when Roger Smith was Director, but I may be wrong). I can’t see a Conservative led government doing it, not even in the strange world of coalition influences, but who knows?

7 thoughts on “Crawley – a quick look and some implications

  1. It seems to me a bit surprising that the Judge seemingly closed the door very quickly on the suggestion that a junior(s) might have the “required level of competence and experience” to conduct the defence. This seems to rule out the very real possibility of the existence of variations in quality at the Criminal Bar that straddle, in either direction, the silk/junior divide.

    Of course, we don’t know for sure whether any suitably qualified senior juniors would have been prepared to act, which is a different question. I’d be surprised if this was not the case.

  2. Richard,

    Interesting views, as ever. Some brief thoughts.

    There is a pleasing irony that Grayling has been embarrassed by the operation of the market. I don’t personally subscribe to the proposition that the market is all, but he says he does. His reaction seems to me to provide a clue as to the genuineness of his political beliefs, which is also interesting. Grayling’s reaction (to name the fee he says a QC would get) is that of a child who isn’t getting his own way – there is no principle involved at all.

    The fee for a silk his department has spun is £100k. By my calculations, assuming Crawley to be a Category 2 case (I don’t know if this is accurate), that assumes a preparation time of approx 1,125 hours. That is to say, 112 days if a day is 10 hours long – or 16 weeks work. The MoJ MUST therefore be lying when it spins this, because the Judge said that PDS advocates could prepare the case in 12 weeks at 37 hours a week, on a 5 day week. That is 444 hours, for which the fee would be £39,500 odd – or less than half the fee asserted by the MoJ.

    That, in turn, raises the enticing possibility that the MoJ fee is the cost to the PDS. You wouldn’t like to make a FoI request would you?

    I am unclear how the PDS’s own code can sort this mess out. All barristers employed by the PDS remain obliged to comply with the BSB Handbook, my reading of which suggests that there is a clear conflict here. The PDS is not entitled to regard its employees professional code as irrelevant. We are now obliged to report misconduct, which would put prosecuting counsel in Crawley in an interesting position should it ever go ahead with PDS representation…

    I personally think the Judgment is pretty bomb proof. That is because the Judge avoided the temptation to equate the stay with State misconduct (although he alluded to it). He applied the Crim Proc Rules and, in line with the usual authorities about interfering in case management decisions, the Prosecution, should it appeal, will have to show error of law or principle. It would not be sufficient for the CofA to simply disagree.

    I do not think Grayling can make a cab rank rule argument. VHCC fees were undeemed by the BSB, so the rule does not apply. Ironically – and this really is immensely pleasing – the remedy for challenging that decision would seem to be a Judicial Review. Not only is the MoJ out of time, but I cannot imagine Grayling wanting to ask the Court to say that undeeming VHCCs on the basis that he offered a proper fee and to suggest otherwise was Wednesbury unreasonable. The professions, on the other hand, would accurately regard that as all their Christmases come at once.

    VHCC cases have to be funded properly because they can only be done by a small number of people who are prepared to individually come to the same view about the fee on offer. Helpfully, the MoJ – which is increasingly looking second-rate in terms of the quality of intellect available within it – advised Grayling that this would not happen. A savvier view might have been to offer a choice between VHCC cuts and cuts in other areas: it seems that this avenue is now closed because Grayling has – ridiculously – camped out on his wish to assist the most junior members of the profession. Having nailed himself to that particular mast, he can’t really climb down.

    It may therefore be that compulsory insurance is the answer. I see no reason in principle why company directors should not be made to carry such insurance. It might make them more careful and it would ensure that the insurance companies – who already do a good deal of fraud investigation after the horse has bolted – undertake that investigation at a time when it might do some good. Moreover, although it would be expensive it would leave open the possibility of non-execs being able to mitigate the premium by looking carefully at systems and taking responsibility for them. That might actually avoid fraud, thereby reducing the cost to us all.

    1. Thanks Simon. Apologies I have just seen this. I have stopped getting email alerts when people make comments for some reason.

      I doubt an FOInrequest would be fruitful, but you can!

      I’d be interested in why you think the Bar Code is tighter than the PDS code (I’ve not thought about it, I’m not being argumentative).

      I don’t seriously think CG would complain but I do think the Can Rank rule applies. I think – but please correct me if I am wrong- that deeming only meant the ‘reasonable fee’ exception does not apply, un deeming, means that it can be argues a fee is not reasonable, not that it automatically does.

      The compulsory insurance idea I’m sympathetic to. My guess is some places would self insure and that might give rise to awful conflicts (like News ain’t paying Goodman’s and Mulcaires defence costs if you followed that) but there could be ways round that. I was wondering if the MoJ would say the FCA have to set up a defence fund and recover it through their own budgets (which are levied on the industry). That might be neater but of course would only cover FCA cases. There’d be relentless arguments about whether they funded defences adequately of course, a bit like now.

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