Eight defendants in a multi-million pound fraud case must prepare for trial even though none is represented by counsel, a Judge at Southwark Crown Court instructed on Monday of this week.
Financial Conduct Authority
The fraud case R v Crawley & Others is being prosecuted by the Financial Conduct Authority (FCA) and is due to begin in late April 2014. Such a complicated prosecution, with more than 100,000 items of evidence, would normally require 16 defence barristers with two for each defendant. However, His Honour Judge Leonard said the case must continue to be prepared for trial without the assistance of defence counsel. He commented:
“I will hear an abuse argument if that becomes necessary, but we will work on the basis of being ready for trial with or without counsel.”
Although represented by solicitors, the eight defendants have been unable to find counsel to take their cases as the Ministry of Justice is cutting rates paid for trials deemed to be very high cost cases (VHCC) by 30%. The reductions will affect trials starting after the end of March 2014. Barristers point out that the cuts are the latest in a series of fee reductions. The case was subsequently downgraded to the graduated fee scheme, but still no counsel has been prepared to take the case.
Solicitors who act for four of the defendants told the court they had approached 60 barristers chambers to find counsel and solicitors for one of the co-defendants had approached 70 chambers, as well as the Scottish and Northern Irish bars and the Public Defender Service, without success.
Despite representations by prosecutor Sean Larkin QC, that the defendants had the benefit of advice from their solicitors and counsel prior to the fee change, the Judge agreed that the defendants should not be arraigned. However, he insisted that trial preparation by the defendants and the Crown continue, including the service of defence case statements by 7th February. Following all defendants indicating they would not serve them without counsel, Leonard warned that failure to do so could result in adverse inferences being drawn by the jury.
The Judge stated that the solicitors could undertake the work to prepare the case. He indicated he ‘had difficulty’ understanding their ‘unwillingness’ to progress the case without counsel, but he said he did not criticise them for it. Neither did he criticise them for failing to find counsel, saying they had been down ‘many paths’ to find barristers to take the case. But he said in the circumstances the court has a responsibility to progress the case.
Very High Cost Cases
Bailing all eight defendants, Leonard warned them that on the next occasion they must be prepared to deal with their defences, witness requirements and give notice of any expert evidence, whether or not they are represented. He said:
“I will look to you to help prepare for trial if your are not represented.”
The matter was adjourned until the 17th February. All eight defendants deny the charges.
Nigel Lithman QC, Chair of the Criminal Bar Association, commented when the suggestion first arose:
“We hope that refusing to take these briefs and our rally – which is designed not to interrupt court cases – will send out a message that will be listened to. If it isn’t, further action will follow.
“Criminal barristers nowadays have to work for a week to earn what commercial barristers earn in an hour. A questionnaire sent out to heads of chambers produced a reply that 95% of criminal barristers have said they will not take on very high cost cases at the reduced rate. [These cuts are] a recipe for chaos.”