Serious fraud trial abandoned because of cuts to legal aid for defence representation

blind justiceR v Scott Crawley and others – read judgement

A judge has halted a serious fraud trial after defendants claimed they could not get adequate representation because cuts to legal aid, and as a result they would not get a fair trial under common law or Article 6 of the Convention. This case could be the first of a number of  reversals following the government’s legal aid reforms with seven further trials due to start before September 2015 involving 28 defendants in similar positions.

The defendants were charged with offences of conspiracy to defraud, possessing criminal property and offences where the evidence was complex and substantial. The the case against the five men amounted to more than 46,000 pages of documents and the case summary itself covered 55 pages. In essence, the Crown alleged that the defendants had been involved in a fraudulent land selling scheme. 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.

Background

In July the Legal Aid Authority notified the parties that the case had been classified as a Very High Cost Case (VHCC).Shortly after this the Ministry of Justice (“MoJ”) announced their intention to cut fees paid to counsel by 30%. The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases.

During this same period the MoJ and the Bar were negotiating over proposed reductions in graduated fees. The Public Defender Service (“PDS”), a department of the LAA, began actively to recruit a pool of employed advocates to take on work that might otherwise have been done by independent advocate.

At a hearing on 14th November 2013 the defence raised concerns that they would not have counsel for the trial and that there was insufficient time for any counsel who might now be instructed to be ready by April 2014. By the end of November all counsel had returned their briefs.

In this hearing Alex Cameron QC appeared bro bono to advance the argument on behalf of the defendants that Leonard HHJ should stay the proceedings because they are unrepresented through no fault of their own and that he should not grant an adjournment because the possibility that at some unknown date in the future an adequately funded advocate may become available is no basis on which to grant an adjournment. The Crown accepted that involuntary lack of representation would be inconsistent with the European Convention on Human Rights and common law rights and they acknowledged that a fair trial could not be held now. But they submitted that there was a reasonable prospect that advocates would be available to represent the defendants in the future and that the judge should adjourn the trial to a future date rather than staying the indictment. A stay as an abuse of process is an exceptional remedy, but nor should the defendants in this case become “victims of a dispute between the Bar and the government” (para 24):

my decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.

The efforts to find representation included contact with 70 sets of chambers with barristers who hold themselves out as competent to undertake this sort of work in and outside London. By 15th January 2014 there was one silk who put himself forward as willing to accept instructions. He withdrew on 16th January. Enquiries were made without success with the Bar of Northern Ireland and the Faculty of Advocates in Edinburgh.

The efforts put in by the defence to find trial advocates had been, in the judge’s words, “very substantial indeed” and in the end, unsuccessful. There was no compromise solution in this case:

Criminal trials of this complexity rely on the skills of highly competent and experienced advocates on both sides to reduce issues, make matters understandable to a jury and keep trials to a reasonable length.

The judge was referred to Croissant v. Germany (1993) 16 E.H.R.R. 135 in respect of the right to a choice of representation where the state pays for legal assistance.In that case it was considered sufficient that the court appoints a lawyer to defend and individual; the right of a defendant to choose his own counsel cannot be considered absolute. In the present case the judge was of the view that the defendants could not hold out for independent counsel of their choice to become available.

In determining whether he should grant an adjournment rather than the more drastic remedy of a stay, Leonard HHJ had to consider a number of factors:

  1. 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.
  2. Against 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.
  3. On the other hand, 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.
  4. An adjournment of the trial would involve an additional stress on the State’s provision of resources to try crime.

In view of the availability of barristers and the preparation time required the judge was not satisfied that sufficient advocates would be available to assist these defendants at trail, nor did he have any reason to think that there was a realistic prospect tha the Bar would accept contracts in VHCC cases on the present MOJ terms.

Having considered all these matters he was 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. He further found that there was 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.

Speaking to The Independent, a spokesman for the Ministry of Justice said: “Barristers have refused to work on this case – and a number of other Very High Cost Court Cases – because they do not agree with savings the Government is making to legal aid.

Even after the savings, if a QC picked up a case like this one, they could expect to receive around £100,000 for working on it, with a junior barrister receiving around £60,000.

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Disclosure of medical records breached patient’s human rights – Strasbourg

Hospital-BedL.H. v Latvia [2014] ECHR 453 (29 April 2014) - read judgment

The release of confidential patient details to a state medical institution in the course of her negotiations with a hospital over a lawsuit was an unjustified interference with her right to respect for private life under Article 8.

Background

In 1997 the applicant gave birth at a state hospital in Cēsis. Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.

In 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. Continue reading

Closed material in UK proceedings cannot be disclosed in Strasbourg

blind justiceWang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment

It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.

The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights. Continue reading

Travails of the War Horse orchestra

War-HorseAshworth and others v the Royal National Theatre [2014] 1176 – read judgment

Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage.  Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.

Background

War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production,  as a small company of wind players accompanying recorded music.  Productions of War Horse in other parts of the world have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.

The dispute

The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention. Continue reading

Not unlawful to refuse egg freezing therapy for Crohn’s sufferer

bigstock-Boiled-Or-Raw-Egg-8015047Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment

Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.

There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles.  As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources. Continue reading

Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

Continue reading

Irascible does not mean incapable – Court of Protection

brain-in-headWandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment

This was a case about determination of mental capacity,  which both judge and counsel described as “particularly difficult and finely balanced”.  The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that

His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.

Background

IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.  Continue reading

Anonymity protection for under age defendants expires when they are 18: High Court

youth offencesJC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment

This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]

Background

On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property.  Continue reading

“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading

Bone marrow disorder appeal fails

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 - read judgment

Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.

This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”). Continue reading

International Court of Justice orders Japan to suspend its Antarctic whaling program

japan-whaling-e1270007253119The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.

ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules.  The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.

The following is based on the ICJ’s press release.

Findings of the Court

First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia. Continue reading

Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

John Redwood MP and David Hart QC debate environmental rules

talk_05Is environmental regulation unnecessary and is it crippling our economy? This was the debate which raged last Thursday between a senior Conservative backbencher and one of our regular 1 Crown Office Row contributors to the blog – thanks to the UK Environmental Law Association who organised it and city law firm Simmons & Simmons who hosted lunch. Stephen Tromans QC of 39 Essex Street ably chaired the debate.

The motion of the debate was a broad one which John Redwood narrowed down into an onslaught on climate change subsidies, which he said were pointless and damaging. To find out more about his case, and David’s response, listen to the audio file here.

talk_04

 

 

No maternity rights for commissioning mother in surrogacy case

Pregnant_woman_silhouette.pngCD v ST (judgment of the Court) [2014] EUECJ C-167/12 (18 March 2014) - read judgment

 Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment

The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.

I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.

Continue reading

No duty to investigate in respect of civilian deaths in Malaya in 1948

malayaKeyu and Others v Secretary of State for Foreign and Commonwealth Office and another [2014] EWCA Civ 312, 19 March 2014 – read judgment

After an interesting analysis of the time limits for claims under Convention in response to a claim made in relation to actions by British soldiers in Malaya in 1948, the Court of Appeal dismissed all their  human rights, customary international law and Wednesbury  arguments.  There was no obligation in domestic law for the state to hold an inquiry into the deaths of civilians killed by British soldiers  in colonial Malaya in 1948, even though the Strasbourg Court might well hold that such a duty ensued.

Background

After the defeat of Japan in WWII and their withdrawal from Malaysia, there ensued a bitter conflict between Malaysian civilians Chinese-backed communist insurgents. In 1948 Commonwealth forces got involved and there ensued a guerrilla war fought between Commonwealth armed forces and the Malayan National Liberation Army (MNLA), the military arm of the Malayan Communist Party (MCP), from until 1960. Continue reading