Foreseeability and the Battle between the Ministry of Justice and the Criminal Bar

Date01 August 2014
Published date01 August 2014
AuthorDavid Kirk
Subject MatterOpinion
Foreseeability and the Battle between the
Ministry of Justice and the Criminal Bar
David Kirk*
Partner, McGuireWoods London LLP
The government has created a new way for fraudsters to avoid being
brought to justice: reduce the fees that experienced barristers will be paid
for defending serious and complex (‘Very High Cost Case’ or VHCC) fraud
cases by 30 per cent, prompt a walk-out and a refusal by those barristers
to take on legally aided VHCC defence work, and let the suspects argue
that they cannot get a fair trial because they are unable to be adequately
defended. That was the impact of a judgment handed down by Judge
Leonard QC, a highly experienced fraud judge, at Southwark Crown Court
on 1 May 2014 in RvCrawley (Scott) and Others. He ordered a stay of the
proceedings, thereby acquitting the defendants.1
The Court of Appeal, presided over by Lord Leveson, on 21 May 2014
overturned Judge Leonard’s terminating ruling, and reinstated the
indictment, nding inter alia that there was no breach, actual or in prospect,
of the fair trial provisions in Article 6 of the European Convention on
Human Rights because the possibility remained open that suitable
advocates could be found to represent the accused: ‘The agreed test to be
applied was: “is there a reasonable prospect of competent advocates with
sufcient time to prepare being available in the foreseeable future?”’.2The
court concluded that ‘at the date of the hearing before the judge, on our
analysis, there was a sufcient prospect of a sufcient number of Public
Defender Service (PDS) advocates who were then available who would
enable a trial to proceed in January 2015’. This judgment was based on
various considerations, including that there were, at the time, three senior
counsel in the Public Defender Service (PDS), and although the position
was not clear, it was thought that recruiting was in train; that the Bar’s
negotiations with the Ministry of Justice about VHCC were ongoing, and
therefore the position might change at any time; and that any delay in the
trial date, while unfortunate, was manageable. The court emphasised that,
although civil redress may still be available to victims, there is a strong
public interest in criminal allegations being brought to trial. In short, it
found that the Crown Court judge was wrong in law, and that his ndings
were not reasonable, and therefore his terminating ruling was quashed
(Criminal Justice Act 2003, s. 63). The trial is now apparently xed to
begin in January 2015.
* The views expressed in this Opinion are those of the author and do not necessarily reect
the views of McGuireWoods LLP or the Journal of Criminal Law.
1 See C. Baksi, ‘Fees dispute puts £4.5m fraud trial in jeopardy’, LawSociety Gazette, 24
January 2014, available at
trial-in-jeopardy/5039551.article, accessed 10 June 2014.
2RvCrawley (Scott) and Others [2014] EWCA Crim 1028 at [45].
The Journal of Criminal Law (2014) 78 JCL 277–280 277

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