The Queen v Scott Crawley and Others
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 21 May 2014 |
| Neutral Citation | [2014] EWCA Crim 1028 |
| Docket Number | Case No: 2014 02162-02166 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 May 2014 |
[2014] EWCA Crim 1028
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Davis
and
Lord Justice Treacy
Case No: 2014 02162-02166 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Leonard Q.C.
T20137183
Royal Courts of Justice
Strand, London, WC2A 2LL
Sean Larkin Q.C. and Ben Jaffey for the Applicant, the Financial Conduct Authority
Alexander Cameron Q.C. and Lee Adams for the Respondents
Anthony Peto Q.C. and Peter Woodall for the Lord Chancellor Intervener
Hearing date: 12 May 2014
This is an application by the prosecution for leave to appeal a decision dated 1 May 2014 of His Honour Judge Leonard Q.C. sitting in the Crown Court at Southwark in which he stayed a prosecution initiated by the Financial Conduct Authority ("FCA") in relation to a trial which had been due to commence with a jury on 6 May. Notice of intention to appeal pursuant to s. 58 of the Criminal Justice Act 2003 was given within the period allowed by the judge and it was acknowledged that the respondents would be entitled to be acquitted should leave not be obtained or the appeal abandoned. It has been referred to the full court by the Registrar on the basis that if leave is granted, the appeal will follow. We do grant leave.
The background to the indictment has been identified by the judge in the following succinct way (which we gratefully adopt):
"1. The [respondents] are charged with offences of conspiracy to defraud, possessing criminal property and offences contrary to s.19 and 23(1), and s.177(4)(a) of the Financial Services and Markets Act 2000. The evidence is complex and substantial. The volume of papers amounts to some 46,030 pages. There are in addition 194 excel spreadsheets with a combined total of 864,200 lines of entry. The Case Summary covers 55 pages.
2. In essence the Crown alleges that between 2008 and 2011 the defendants were involved in a land banking scheme using, variously, three limited companies. Those companies acquired, or purported to acquire, sites which were then divided into a number of sub-plots. It is alleged that those sub-plots were then aggressively marketed to members of the public – often vulnerable members of the public – who were persuaded to buy based on false representations as to the nature of the company selling the sub-plots, the professionals they employed, as to planning permission, potential purchasers of the sites for onward development and their previous success. Some purchasers were given good title, some were not, and some sub-plots were sold more than once. Various interventions by the FSA (as it then was) to stop the practices were subverted by transferring the fraudulent scheme to a new company."
The investigation and prosecution have been in the hands of the FCA and it is clearly an extremely important but complex case. Following arrests in November 2011, the respondents (and three others) were subsequently charged in April 2013 with the offences. Having been transferred from the City of London Magistrates Court, on 21 May 2013 it was listed before the Recorder of Westminster when the trial was fixed for 28 April 2014. On 10 July 2013, the court made appropriate representation orders and, on 22 July, the case was classified by the Legal Aid Authority ("LAA") as a Very High Cost Case (VHCC). Counsel were instructed.
Meanwhile, a review of legal aid was being undertaken and, in order to bear down on the cost of legal aid in criminal cases, in September 2013 the Ministry of Justice ("MoJ") announced its intention to institute a number of changes including a reduction in the fees payable under the Graduated Fee Scheme and a cut by 30% in the rate of remuneration paid to counsel in VHCC cases. Dissatisfied with this decision, the Bar Standards Board (which had been reviewing the position with the Legal Services Board since 2012), with effect from 6 January 2014, made clear that VHCC cases were not within what had been the 'deeming' provision of Rule 604 (dealing with reasonable remuneration). The concept of deeming has been removed and as the Bar Standards Board has put it:
"Individual barristers will have to judge for themselves whether the fee offered is a proper fee, whether the work is legally aided or privately funded, and if they reasonably conclude that it is not, objectively, a proper fee, the CRR will not oblige them to take the work."
Although the MoJ later revoked the decision in relation to trials commencing prior to 31 March 2014, in all other cases the date upon which members of the Bar were required to decide whether to accept a VHCC contract on the new terms was set at 2 December 2013. The effect was stark. As Judge Leonard put it:
"In this and every other case which did not fall within the concession provided by the MoJ [counsel] declined to accept instructions."
On 14 November, concern was being expressed by a defence solicitor, that there would be insufficient time for counsel to be ready for trial but an application to vacate the trial date was refused: had it been granted, there would have been no question of the prosecution being stayed. By 23 December, with no counsel available, it was submitted that the prosecution was an abuse of process. Some argued that it was premature to decide that issue. In the event the application was adjourned.
Ways forward continued to be aired. An offer to declassify the case so that it fell within the Graduated Fee Scheme was rejected on the basis that remuneration for reading beyond 10,000 pages would only be resolved ex post facto without guarantee of any payment. Meanwhile, the Public Defender Service ("PDS"), a department of the LAA providing criminal defence services, operating alongside private practitioners, began actively to recruit a pool of employed advocates to take on work that might otherwise have been done by independent advocates. By 23 January, there were three Q.C.s and no juniors but, in any event, there was a concern about potential conflicts of interest. This last issue has since been resolved on the basis that the approach to be adopted by those employed by the PDS reflects the approach taken by independent members of chambers (who frequently act in the same case for those with conflicting interests): before us, Alexander Cameron Q.C. for the respondents accepted that the point had little value.
On 17 January, Judge Leonard severed the indictment and on 24 January endorsed a decision that the five respondents should be tried on 28 April (with the jury required on 6 May) with a time estimate of 2 1/2 to 3 months. The remaining three defendants were to face trial on 15 January 2015 with an estimate of 6–8 weeks.
In the meantime, while negotiations with the MoJ continued, members of the Bar took part in what were described as days of action and instituted a policy of refusing to accept 'returns' (that is, briefs which the barrister originally instructed could no longer undertake). On 27 March 2014, after the Lord Chancellor had agreed to defer the reductions to Graduated Fees until 2015, the Chairman of the Criminal Bar Association publicly stated:
"Whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection in principle to barristers who want to work on VHCCs undertaking such cases if they choose to do so."
In the event, no suitably qualified advocate was prepared to sign a VHCC contract in this (or indeed any other) case. So it was, on 28 April, a month after the last change of approach but before the position was able to develop further, that Judge Leonard considered an application to stay the prosecution as an abuse of process: at that time, none of the respondents had been able to find counsel to instruct. Mr Cameron Q.C appeared pro bono to argue the point on the behalf of all the defendants other than Daniel Forsyth, who was represented by Mr Adams, although, in order to deal with the possibility that they might not have been represented, at the request of the judge Tom Little was instructed by the Attorney General as amicus curiae.
The Approach of Judge Leonard
A number of principles were broadly agreed between the parties. These were summarised in the skeleton argument submitted by the FCA in support of this appeal as follows:
"i. In the circumstances of this case, it would be unfair to try the defendants if they wished to be represented and, through no fault of their own, they were not represented.
ii. At the time the trial was due to start (6 May 2014) the defendants would not be represented by advocates who had had sufficient time to prepare the case.
iii. The reason for the absence of advocates was the collective refusal of the self employed Bar to accept the reduction in fees payable to advocates under the VHCC regime (as of December 2013) leading to advocates returning their instructions or not accepting instructions.
iv. If a competent advocate were available, the defendant could not refuse to instruct him and claim he was involuntarily unrepresented.
v. There was no fault on the part of the FCA."
The only difference was in the sixth principle, namely the test to be applied. The applicant articulated the test as whether there was a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future; the respondents, on the other hand, submitted that in place of the words "in the foreseeable future" should be...
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