Monday, June 09, 2014

U.K. Appeals Court Reinstates FCA Enforcement Action Dismissed Earlier Over Legal Aid Fee Dispute

The U.K. Court of Appeals reversed a Crown Court ruling stayed an indictment in an enforcement action begun by the Financial Conduct Authority alleging securities fraud. The lower could found that there was no realistic prospect of obtaining public defense advocates in a reasonable conscionable time-frame. The background to the court’s ruling was a decision by the Ministry of Justice to cut fees paid to legal aid counsel by 30 percent, which resulted in an inability to find defense counsel willing to take this complex case. Regina v, Crawley, et al., Court of Appeals, May 21, 2014.

 In ordering that the proceedings on the indictment be resumed, the appeals panel said that the lower court ruling involved errors of law or principle and, in any event, was not reasonable in the sense that a number of the conclusions reached were not reasonably open to the court based on the evidence and, in any event, the ultimate finding did not constitute a reasonable exercise of the discretion open to the lower court.

In the appeals panel’s view it was wrong, for present purposes, to seek to link, effectively as one, the FCA as prosecuting authority and those responsible for the provision of legal aid or to speak of  its own failure as if there was a joint enterprise in which both were involved.
While some prosecutions are brought by independent bodies such as the FCA  and some are brought by the Crown, said the panel, it is beyond peradventure that neither of them has any power or ability to affect the exercise by the Lord Chancellor or the Ministry of Justice of its statutory responsibilities for legal aid.

This dispute arose because the Lord Chancellor has restricted legal aid funding and independent practitioners are not presently minded to accept contracts under that scheme, a view which  they are fully entitled to take. It is, however, said the panel, undeniably the responsibility of the Lord Chancellor to address the need to provide legal representation for those involved in the most complex of cases and the present difficulties clearly flow from his decision to reduce the funding. How the present problem has arisen and whoever is to blame is neither here nor there.

The appeals went on to say that it is wrong as a matter of principle to conclude that the State has violated the process of the court or that what has happened jeopardizes the integrity of the criminal justice system, as opposed to its effective operation. To that extent, the panel ruled that the primary reason given by the trial judge for staying the prosecution was flawed.

Similarly, the  finding of the judge that there was no realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future could not be sustained; neither was it reasonable for him to reach it. In any event, it was unjustifiable to proceed on the basis that the position was fixed, said the panel. Indeed, it had changed in the weeks that had elapsed and, whether or not the Bar accepted legal aid cases on the present terms, further discussion could not be ruled out.

The appeals court pointed out that it was not saying that there could not come a time when it may be appropriate to order that this indictment be stayed. That time, however, remains very much in the future, observed the panel,  and problems about representation will have to have developed considerably before such an exceptional order could be justified.