THE BLOG
23/05/2014 11:39 BST | Updated 23/07/2014 06:59 BST

Justice Armageddon as Court of Appeal Destroys Accuseds' Right to a Proper Defence and a Fair Trial

It is impossible to overstate the serious implications of a Court of Appeal decision this week which spell disaster for the administration of British justice.

Three of our pre-eminent members of the judiciary backed process over principle and potentially dug the government out of a hole of it's own making but, in order to do so, their decision has taken an axe to one of this country's most cherished legal institutions: an individual's right to be properly defended in a court of criminal law by an Advocate of one's own choosing.

Instead, the court, presided over by Lord Leveson, ruled that it was perfectly acceptable for the State to hire the very best first-rate legal brains possible to prosecute the most difficult and complex of criminal trials... but to impose on defendants the third-rate lawyers from its own tame Public Defender Service who are totally out of their depth.

I'm referring of course to the Legal Aid Cuts case, "Operation Cotton", which has also become known as "The Case With No Barristers" and which has received considerable publicity.

Briefly, swingeing government cuts to legal aid fees meant no specialist Barristers - we tried over 70 different Chambers around the UK - were prepared to act in a highly complicated and lengthy £5m fraud case brought by the Financial Conduct Authority against five defendants.

As a result, at the start of their courtcase they had no-one to defend them - so His Honour Judge Leonard threw out the case because, without proper representation, those charged could not possibly get a fair trial. He was persuaded to take this action by top Silk Alex Cameron QC, who I retained on behalf of all five defendants - he took on the case for free because of the vital points of principle involved.

The FCA instantly appealed - with another EIGHT such complex financial fraud trials in the pipeline, the implications were obvious. These concerns were shared "on high" and the case was fast-tracked within ten days to the Court of Appeal whose ruling placed expediency before principle.

The repercussions are stark, the outlook is unremittingly bleak for the future. These assembled cases are the most serious and complex frauds, the most complicated in the criminal calendar. They require a degree of specialisation amongst both Solicitors and Barristers which sets them apart from any other criminal cases.

We are now in the unbelievable position where the cases which require the most careful handling by Advocates at Trial will, if the Ministry of Justice and the Financial Conduct Authority have their way and with the sanction of the Court of Appeal, rest with an assembled cast of third rate Barristers who simply don't possess the requisite skills and aptitudes for the task.

In granting the Appeal by the FCA, Lord Justice Leveson actually declared:-

"The criminal justice system in this country requires the highest quality Advocates both to prosecute and defend those accused of crime ... the better the Advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence. Poor quality Advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, Appeals and, even more serious, leading to potential miscarriages of justice. We have no doubt that it is critical that there remains a thriving cadre of Advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they able to undertake the most complex".

Fine words - but the decision of Lords Justice Leveson, Davies and Treacy sanctions quite the opposite.

Instead, and this spells Armageddon, the Ministry of Justice may reason that they can simply bolster the ranks of the Public Defender Service numerically so that they have a pot of QCs to cover these major cases.

It is worth reminding observers that the defendants in these cases are not without means. It is not through their choice that they rely on the State to fund their defence. However, as a result of the allegations which they face, their assets have been frozen under the Proceeds of Crime Act 2002 so they are forced to take Legal Aid. The effects of this Judgment will be to force them to accept representation by a PDS Advocate regardless of their wishes.

It must be remembered that these cases are being prosecuted by the Financial Conduct Authority which is THE prosecuting authority in allegations of complex cases of fraud and financial crime in the City of London.

Amongst the other upcoming cases is the trial of defendants alleged to have participated in fixing the Libor rate - of interest to the United States because it is a pre-cursor to similar cases in the US. The FCA is heavily resourced, reflecting the nature of the cases which it investigates. It is against this heavily resourced organisation, allowed to hire the best, most experienced (and most expensive) QCs, that it is envisaged that defendants will be represented by sub-standard Barristers picked and parachuted in by the government and forced upon them against their will. How are defendants supposed to trust, with their liberty, such Advocates?

The relationship of trust between a client and his Advocate is crucial - the scant regard paid to it in this case is reflected by the brazen appearance in the Court of Appeal by a Barrister from the PDS - who will potentially be acting for a defendant in this very case - sitting alongside the Financial Conduct Authority as they put evidence to Lord Justice Leveson and the Court of Appeal to the effect that the case against their own prospective clients should not be stopped.

Against this background, the well intentioned parting words of Lord Justice Leveson have a distinctly hollow ring.