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.