Legal aid row: Who is going to blink?

Ministry of Justice The Ministry of Justice said suitable barristers could have been found

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There is one inescapable fact about the trial of Scott Crawley and others at Southwark Crown Court: No barrister would take on their case.

And without adequate representation, the judge has ruled, there can be no trial.

Judge Leonard QC's decision to halt the prosecution of five men accused of a multimillion-pound land investment scam has huge implications.

For more than a year there have been warnings that cuts to legal aid would lead to a denial of justice - and the cancellation of a major and complex criminal trial is perhaps the most dramatic way it could happen.

Investors who believe they were ripped off don't get their day in court. The defendants accused of doing the ripping off don't get their chance to clear their name. A huge investigation that runs to 46,000 pages of evidence and almost one million lines of financial figures comes to nothing.

At the heart of this case was the simple issue of representation and how much we are prepared to stump up.

This prosecution is what's known as a "Very High Cost Case" which requires specialist lawyers and legal aid for the defendants.

As the name implies, VHCCs are the most complex and lengthy of all criminal casework.

VHCCs include fraud, drug-trafficking and terrorism. The evidence can be difficult for a jury to understand and that's why the legal profession and judiciary want the most senior and experienced barristers in court.

Official figures show that £600m of legal aid went on lawyers for around 128,000 defendants in the Crown Court in 2012-13

Just 20 VHCCs soaked up a tenth of all that spending. These cases comprise a tiny proportion of cases that end up before a judge - but they cost an absolute fortune.

But what the profession regards as being in the interests of justice is now rubbing up against what the government believes is in the interests of the public purse.

When ministers decided to slash the £2bn legal aid bill by a quarter, VHCCs were one of the targets. The Ministry of Justice ordered a 30% cut in the fees paid to VHCC barristers.

But since that cut, the Criminal Bar Association says not a single barrister, who are self-employed, has signed up to the new VHCC contracts.

Solicitors in the Southwark fraud trial approached 70 barristers' chambers looking for someone suitable. Only one QC said he was interested - but within 24 hours he changed his mind.

The solicitors tried to find a qualified advocate from a special government in-house team, known as the Public Defender Service. Again, they drew a blank.

That led to the bizarre situation in Southwark Crown Court with the prosecution ready to prosecute - but the defence saying they were incapable of defending.

Into this walked Alex Cameron QC, the Prime Minister's brother. Appearing "pro bono" - meaning for free - he argued that the men could not get a fair trial. And the judge agreed.

"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," said the judge in his ruling.

The president of the Supreme Court Lord Neuberger told BBC radio 5 live: Legal Aid cuts posed a "serious risk" to justice

He said there was "no realistic prospect" of any lawyer emerging to take on the case between now and 2015 - at which point it would be unjust for the on-off prosecution to continue.

That decision - which is being appealed - has huge implications for other cases. There are at least eight other complex trials in the pipeline where defendants are said to be struggling to find barristers.

And the Criminal Bar Association says that the more legal aid cuts bite, the more lawyers will quit criminal work, despite its vital role in the fabric of society.

The Ministry of Justice has come out fighting - accusing barristers of refusing to take work that is still very well paid.

While that may be true for some, at the bottom of the legal heap there are plenty of lawyers who don't earn anywhere near the stereotype. Many spend their careers earning relatively modest amounts, taking into account their qualifications and the hours they put in.

In fact, the UK's statistics watchdog has criticised the government's presentation of publicly-funded barristers' salaries, saying ministers overstated earnings by ignoring lower estimates and failing to deduct costs.

Legal aid was a creation of the bold post-war expansion of the welfare state. Its architects believed justice should be open to all, not just those who could afford it.

Ministers insist that their reforms still guarantee open access to the courts - but they have some powerful opponents, including Lord Neuberger, the President of the Supreme Court.

At some point someone is going to have to blink.

Dominic Casciani Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 421.

    What is an even bigger issue is who is entitled to Legal Aid. At the moment it appears that any one is, as long as you know the right people and have hidden all you money. Combine that with the stitch up of the actual costs and you can see why it costs what it does.

    Like all these things, what started out with good intentions had been totally abused and wreaked.

  • rate this

    Comment number 420.

    357. Emperor Wibble

    Absolutely yes.

  • rate this

    Comment number 419.

    Could cheaper liers for the defence not be found?

  • rate this

    Comment number 418.

    Auberon Waugh always maintained that the judiciary operated not as a profession but as a trade and, as such, they had a duty, in order to stimulate business, to find for the plaintiff.
    Many recent taxpayer funded cases support this view.
    The legal gravy train must be slowed down and whilst it may be unfortunate that the brakes have been applied in this case the thinking behind it is correct.

  • rate this

    Comment number 417.

    The moral of this story is make sure any crime you commit pays enough to cover your legal bill. Obviously if your innocent tough luck as you will not of made anything from the proceeds of your non crime.

  • rate this

    Comment number 416.

    The Government appears to be applying a 'market value' to barristers.

    I don't see a market value to the cost of a prosecution.

    Both risk a serious denial of justice.

  • rate this

    Comment number 415.

    413.Gooch is God
    Absolutely, it's purely people who would be unlikely to qualify for legal aid themselves not wanting others to have it, not caring that it will lead to injustice, because they don't think it will affect them. Just as they were happy, immediately post-911, to have indefinite detention without charge, because it was other people's rights being denied.

  • rate this

    Comment number 414.

    We are told the case had cost several million pounds to get this far - and collapsed over the matter of an extra £30,000 or so for an effective defence team. In short costs of barristers was tiny compared with the overall cost. Talking about losting the ship for ha'porth of tar - Grayling is clearly an idiot.

  • rate this

    Comment number 413.

    408. Muumipeikko
    "The current system can't operate at this price." - sorry but that's the fallacy put out by Grayling. The "savings" he has decided upon where largely to please Gideon rather than because they were essential. He has been shown how much money has been shaved off the budget already. He has been told of MASSIVE other savings / efficiencies. He ignores it all. Pure ideology.

  • rate this

    Comment number 412.

    What about justice. The amount a person can pay for legal representation is no measure either of how much it matters to him or how meritorious or otherwise his case is. The right of appeal is for both sides and it's only meaningful if it applies to everyone, not just those who can afford it. The Home Secretary appeals IAC decisions more often than claimants do.

  • rate this

    Comment number 411.

    Nothing wrong with trying to control Legal Aid money. Really should be asking why appeals are funded by legal aid, thinking of asylum cases which go on and on. If it matters to those appellants and their supporters, let them foot the bill. Soon sort the wheat from the chaff, and leave money for where it really is needed

  • rate this

    Comment number 410.

    This is about balance. The state has to pay enough so that the Barristers of rich defendants won't wipe the floor with Crown counsel. But then in cases where the defendant cannot afford to pay for his own defence, the state must pay to provide the defendant with a Barrister who is good enough to hold his own against Crown counsel. The balance was about right before Grayling got involved.

  • rate this

    Comment number 409.

    Phil agree
    but to collapse a trial is wrong,has it ever happened before,what now for those who can not afford a defence at any level of the complexity in law which is beyond a laymen

  • rate this

    Comment number 408.

    405.Gooch is God...
    I agree but at least they would provide legal aid to people. The current system can't operate at this price.
    I think it's a little like food, a balanced diet is best but if youre poor, rice is better than nothng. Saying they need meet is pointless if they are reliant of handouts for even their basic rice...
    I guess as the butcher you will push the gov to also hand out meet.

  • rate this

    Comment number 407.

    Many are missing the point that, in a very complex case like this, the Crown appoints highly qualified QCs to prosecute, which is why the court insists the defendants are represented by QCs accredited for VHCC work. Anything else would be unfair. If the state won't provide that kind of representation to the defence, this type of case cannot be prosecuted, and that's bad for everyone.

  • rate this

    Comment number 406.

    400. Muumipeikko
    If it was really about that then surely they could as a society create a fund of say 5% of all legal fees.


    Or better still - how about the VAT on legal fees is used solely towards a legal aid fund...

  • rate this

    Comment number 405.

    Because it won't be at the same pay level - they'll employ unqualified, unscrupulous, possibly not ethically trained individuals as a conveyor belt of (in)justice....
    See how Serco, G4S have been a disaster in prison and transport.
    Crapita in interpreting etc.
    It's that it's an incessant cut cut cut. Over year on year on year.
    The poor and powerless willl be the worst affected.

  • rate this

    Comment number 404.

    401 gooch is god
    Hope one day you make judge,you may then sympathize with strikers who are bullied & turned into demons for standing for there rights,i hope that knowing your rights might jmake it easier to justify change to these dracionian employmen/strike laws,that this government propaganda machine against descent peopleonly trying 2 improve there lives in whatever walk of life they come from

  • rate this

    Comment number 403.

    401.Gooch is God...
    Maybe you can help me by explaining why if legal aid cases are so badly paid and not something most like doing due to pay, why did you complain so much when the likes of Eddie Stobard were rumoured to be allowed to tout for the business? It seems you don't want the work at the pay level but you don't want anyone else to do it who can operate at that pay level. I don't get it.

  • rate this

    Comment number 402.

    397. Muumipeikko
    Life is simple, if you don't want to do the work at the offered price then don't.


    I detected a tone of sarcasm in your comment.

    But that is exactly what happened yesterday. No one would do the work for the money on offer.

    That is why the trial was stopped. That is the market at play.

    But who loses out really?


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