Defence costs: an elegant solution

It is rather handy for the bar that so many prime ministers have QC brothers. At one time, we heard a lot of William (now Mr Justice) Blair. Now it is all Alex Cameron. His arguments persuaded HH Judge Leonard QC that proceedings in R v Crawley and others should be stayed for lack of a barrister willing to act at reduced legal aid rates.

The Court of Appeal intervened to give Chris Grayling more time to buy himself a suitable advocate. We all enjoyed seeing the lord chancellor wrong-footed, but the case requires us to do more than gloat. We have to come up with an adequate policy response.

Mr Crawley and his associates are charged with an alleged fraud in which members of the public were pressured into buying plots on the basis of false representations. They deny the charges. The case is one of a small group of serious fraud prosecutions.

The Financial Conduct Authority (FCA), the prosecutor, told the Court of Appeal that ‘there were due to be eight other trials arising from six prosecutions (listed to begin between September 2014 and September 2015) which required in excess of 23 defendants to be represented in addition to the five respondents and three related defendants in this case’.

The seven FCA serious fraud prosecutions, with their roughly 30 defendants over the forthcoming year, are not typical legal aid cases. They are not even typical of other serious cases, such as murder. For a start, the documentation is enormous. The case summary alone takes 55 pages. There are 46,030 pages of evidence and 194 excel spreadsheets with 864,200 lines of entry. It is the sort of case which pushes what a jury could reasonably comprehend to something close to the limit.

Furthermore, the Court of Appeal appears to assume that this is the sort of case which requires a QC – any QC, not a specialist. It is unlikely that, personally, I am much at risk of such a prosecution but, in the event that I am so charged, then I do not want some jobbing criminal silk (I know too many, too well). I want a commercial expert.

There can be no doubt that Mr Crawley and his fellow accused are entitled to excellent representation. To deny that is to threaten the credibility of the rule of law; invite failures in the justice system; and breach the fair trial requirements both of our common law and the European Convention on Human Rights (which, here as elsewhere, amount to pretty well the same thing).

So, on this basis, it has been a good case for the bar to highlight its argument for commercially orientated rates in a field where fees have traditionally been influenced by civil, privately funded areas of practice.

Grayling’s riposte – that he would appoint more QCs to the Public Defender Service to get around the bar’s collective resistance – was predictable. Whether this will be successful depends on how much individual QCs can be tempted to break the social constraints of their profession and accept being seen as pariahs in their own backyard.

The bar is, collectively, far too cultured to declaim the word ‘scab’ but, to be sure, something similar will be muttered behind the backs of successful appointees around the inns. And, in my view, just buying any QC is not enough: Grayling needs a commercial specialist.

There is nothing wrong, in principle, with having salaried public defenders. The federal public defender in the US, for example, is excellent. The determinant of quality is actually the level of funding. Underfunded public defenders, which tend to be endemic, are rubbish around the world. Well-funded ones can be fine. To build a public defender service around the Crawley prosecution is, however, ridiculous.

If you want the savings from deploying salaried provision, you start with routine, short cases that can be easily aggregated. You do not want a specialist QC waiting for a single day because a case has collapsed.

Two improvements could be made to address the Crawley impasse. The first would be to allow wiretap evidence, as in the US. Snowden allows us to know exactly what GCHQ can do (keeping it secret used to be the justification for prohibiting evidence obtained as a result). I have no idea if this would be relevant in this prosecution but I am sure that it would help in others.

Second, serious fraud cases usually involve breach of the regulatory requirements of the FCA. The FCA makes a regular income from fines. Most recently, it has concentrated on endemic corruption in the banking industry; Barclays has just been fined £26m for rigging the gold market.

Why not put those fines into the pot for meeting the defence costs of serious fraud criminal cases? Over-exuberant financial misconduct should collectively fund both its prosecution and its defence. That way, we can protect disproportionate legal aid funds being expended on very exceptional cases.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice