ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Leonard Q.C.
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE DAVIS
LORD JUSTICE TREACY
| THE QUEEN
|- and -
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
Crown Copyright ©
Sir Brian Leveson P :
"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. "
"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."
"In this and every other case which did not fall within the concession provided by the MoJ [counsel] declined to accept instructions."
"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."
The Approach of Judge Leonard
"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."
"84. 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. …
86. Even if I am wrong about that, I further find that there is no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015, from any of the sources available to the defence, including the PDS. Whatever reason is put forward by the party applying, the court does not ordinarily grant adjournments on a speculative basis."
"The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances."
Violation of the Process of the Court
"Although the FCA is answerable to HM Treasury rather than the Attorney General, it is nevertheless an arm of the State which brings this prosecution. The responsibility to provide adequate representation at public expense is also the responsibility of the State. I have considered whether the State should in those circumstances be entitled to benefit from its own failure by being granted an adjournment."
Delay and Fair Trial
"The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing."
"The authorities relied on and considered above make clear, in my opinion, that such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed."
i) No QCs are currently available. One will be available in four weeks, another from 2 July and a third "later in the summer", albeit he is recouping from a serious health problem. A fourth is due to start a 12 week trial in September.
ii) Two more unnamed QCs are due to start in June and July and would be available.
iii) There is a list of ten other advocates and two further advocates who are due to join the PDS who will become available.
iv) The PDS was not aware of any plans to recruit any more advocates.
"Whilst Article 6(3) does not provide the legally aided defendant with the right to an advocate of his choice, it still permits the solicitor to carry out his duty to assess which available advocate would best suit his client's case. A solicitor is entitled to delay that choice until the moment that he judges the pool from which to choose is at its height. That may be at any time between now and early October ."
"I have no reason to believe that there is a realistic prospect that the Bar will accept contracts in VHCC cases on the present terms."
"In my judgment the defendants cannot hold out for independent counsel of their choice to become available and Mr Cameron QC does not seek to argue that. However, the solicitor acting for a defendant is under a duty to advise his client on the best counsel available to them and is entitled to hold off instructing anyone until he has the best choice available to him, so long as that delay does not jeopardise the date set for trial and the ability of advocates to be trial ready by that date." [our emphasis]
These words represent an important (and correct) qualification to the approach taken by the judge which appears to have been lost sight of in his ultimate conclusions. On the basis of the judge's finding at paragraph 79(f) a delay in instructing advocates until October 2014 would be calculated to jeopardise the date set for trial. Accordingly, on the basis of the judge's own reasoning, he should not have contemplated such a delay and this should not have been a contributory factor to his conclusion that there was no realistic prospect of sufficient advocates being available for a trial to take place in January 2015.
"Failure to grant an adjournment will deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted. To deny them that opportunity should not be lightly taken. Against that I judge that there are other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a rôle in corporate activity in the future. "