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Ignorance of the lawyer is no excuse

28 May 2014

Unsurprisingly, the Court of Appeal has found that inadequate legal representation, like ignorance of the law, is no excuse.

It allowed an appeal brought by the FCA against the decision of the Southwark Crown Court to stay the indictments against defendants accused of fraud because of the lack of suitably qualified advocates.

The trial of R v Crawley & Others had been due to commence before a jury on 6 May 2014. The defendants were charged with offences of conspiracy to defraud, possessing criminal property, and offences contrary to FSMA. The Crown alleges that between 2008 and 2011 the defendants were involved in a land banking scheme, purporting to acquire sites through limited companies which were then divided into sub-plots and aggressively marketed to (often vulnerable) members of the public. The targeted purchasers were allegedly persuaded to buy the sub-plots based on numerous false representations, namely as to the nature and past success of the seller company, the professionals employed, the planning permission and potential purchasers of the sites for onward development. The interventions by the FSA (as it was then) were apparently subverted by the defendants transferring the fraudulent scheme to a new company.

The defendants were arrested in November 2011, charged in April 2013, and subsequently classified by the Legal Aid Authority as a criminal Very High Cost Case ("VHCC").  However, following its review of legal aid, the MOJ announced its intention in September 2013 to implement a reduction in fees payable under the Graduated Fee Scheme and a cut by 30% in the rate of remuneration paid to counsel in VHCC cases; the objective being to reduce the overall cost of legal aid in criminal cases.  The Bar Standards Board made no bones about its view on such reductions in its response to the MOJ's consultation: "the Government needs to think again".

The MOJ subsequently revoked its decision in relation to trials commencing prior to 31 March 2014; however in all other cases the members of the Bar were required to decide whether to accept a VHCC contract on the new terms by 2 December 2013.  Not surprisingly, the Bar remained obstinate, and on 27 March the Lord Chancellor agreed to defer the reductions until 2015. Notwithstanding this temporary victory for the Bar, still no suitably qualified advocate could be found to defend the case. It was against this political landscape that the Judge at the Crown Court granted a stay of the indictments against the defendants.

The Court of Appeal stated that such "draconian action" in the form of a stay was unnecessary. Problems about representation would have to be developed considerably before such an exceptional order could be justified.  The Court considered that the test to be applied was: "Is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?"  At the date of the hearing before the judge, on the Court of Appeal's analysis, there was a sufficient prospect of a sufficient number of Public Defender Service advocates who were then available.

Whilst the Judge took into account the principles of the overriding objective (of enabling the court to deal with cases justly and at proportionate cost) he warned that points about delay and subsequent impact on the trial of a case and other administrative inconvenience could be taken too far.  The problems that arose were due to a breakdown of relationships between the Bar and the MOJ and therefore not as a result from the specific failure by the parties.

As such, it would appear that not only does ignorance of the law not amount to a defence but neither does a lack of quality and experienced legal advice...

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