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Court of Appeal overturns FCA legal aid ruling

The Court of Appeal has overturned a controversial decision to throw out a land banking fraud case brought by the FCA after the five defendants failed to get legal representation.

In April 2013 the FCA charged eight men with land banking fraud and carrying out a regulated activity without authorisation.

A judge threw out the case earlier this month against five of the individuals on the basis that they would not be given a fair trial as they could not get proper legal representation. It is the first time a case has been thrown out as a result of the cuts to legal aid.

The Court of Appeal has now overturned the original ruling following an appeal by the FCA.

Handing down its judgment at the Royal Courts of Justice in London today, Sir Brian Leveson said: “We have reached the clear conclusion that this ruling does involve errors  of law or principle and, in any event, was not reasonable in the sense that a number of  the conclusions reached were not reasonably open to him [Judge Leonard QC, the original presiding judge) based on the evidence and, in any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him.”

The case will now proceed to trial.

The FCA says: “The FCA welcomes the Court of Appeal’s decision in the case of Crawley and others. The FCA is committed to pursuing criminal action in appropriate cases and is pleased that this case can now proceed towards trial.”

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Comments

There are 10 comments at the moment, we would love to hear your opinion too.

  1. Exasperated Me 21st May 2014 at 11:46 am

    This was a criminal case and I would expect anyone to pay the price if they committed the crime whether or not they could afford legal defence.

    The FSCS KeyData case is a different matter altogether.

  2. Legal Aid should never be allowed in cases like this. Legal Aid has been handed out will-nilly for far too many years.
    They should be tried in any event as it is a criminal case.

  3. OK, but if they don’t have the money, how are they going to get representation? Without representation is justice served? Don’t forget the people are innocent until proved otherwise.

    Again it boils down to the absolutely daft charges levied by lawyers. One may ask why there isn’t pressure on them – like there is on us – to charge decent, affordable rates for the job. Also the idea that the looser has to pay for the winners costs also points to the unreasonableness of charges.

    As I have said before – what happened to the idea of solicitors allowed to plead in court?

  4. It was never going to happen (get thrown out) now was it !

    Could you imagine the fall out if it was left to stand, maybe Judge Leonard QC was just trying ( quite rightly and succeeding) to prove a point ?

  5. @Harry
    Lawyers charges are largely determined by supply and demand just like everything else.

    The article is actually little misleading. The Court of Appeal have simply said that the judge was not entitled to throw out the case at this juncture. They have made it clear that if appropriate representation for the defendants is not in place by the expected trial date (Jan 2015) then it can still be thrown out.

  6. @Grey area

    Not really quite like supply and demand. If you want to go to law you have to use them. If you have to defend yourself – likewise. They have a monopoly and as I have said there were moves to provide some real competition with the inclusion of solicitors, but that never seemed to take off.

    Anyway I’m delighted to see that you have researched the story properly. MM reporter – please take note – again the reportage is rather lacking.

  7. @Harry
    It’s supply and demand. The supply of certain legal services is restricted to members of the legal profession but there’s no legal limit on how many of them there can be. Similarly, the provision of regulated financial advice is limited by those authorised to provide it – that’s not a monopoly either.

    Interestingly, and in the same vein as regulated activities in financial services, anyone can give legal advice because it’s not a reserved ‘legal activity’.

    Solicitors can appear as advocates in the High Court but they have to be qualified to do so. Presumably the incentive to complete the required assessment is not that attractive. Supply and demand?

  8. Christopher Holmes 21st May 2014 at 4:00 pm

    Not really like supply and demand at all in fact:

    MoJ bullied barristers – not that I am defending them – to take a 30% cut in VHCC legal aid rates last year. VHCC relates to Very High Cost Cases and this is not the charge rate but the complexity and expected Court time. Quite rightly, the Criminal Bar, did not accept the reduction and no-one signed the new contracts. So there is no representation for this fraud case – and many more to come.

    Having tried to slash costs, MoJ is now throwing all taxpayers’ money at overturning the original judgement – we should be fuming at the incompetence of this Government, rather than at the out-dated system, which all barristers and solicitors recognise needs serious reform.

    The Judiciary is independent, so this is not about point-scoring; it is about getting the right level of representation in a highly complex criminal case. There is far greater cost in the MoJ trying to save costs, resulting in grounds for appeal or re-trial – or worse – innocent people being convicted.

    So, Harry Katz, you are spot on with your point about representation and incorrect on your point about charges – which are determined by MoJ. Solicitors may represent their clients in Court and this will become more commonplace, but sadly not in VHCC due to the level of specialism required. Something we should understand only too well.

  9. @Christopher Holmes
    What you are describing is the workings of supply and demand. There are limited numbers of specialist barristers, i.e. supply is limited. They are not prepared to take a pay cut for legal aid cases, presumably because they can get higher rates elsewhere, i.e. demand is high. The MoJ can offer whatever they like in terms of rates. They can also bully and cajole. Whether any barristers accept… well, that’s down to supply and demand…

    It’s the FCA that appealed the decision, not the MoJ, so that’s our money spent, not the MoJ’s. And given the appeal was successful it was presumably well spent. Churchill once said that democracy was the worst system of politics… apart from all the others. The same probably applies to the British legal system.

  10. @ Christopher Holmes

    My comment about charges related initially to non legal aid. It is the ‘private’ sector that has set the expectations of barristers fees. Supply and demand may be a moot point, but if the law (whether legal aid or not) is to be open to all, then I don’t think many could disagree that the costs involved in so doing are way too high.

    As I have said before the upshot of this is that invariably justice goes to the one with the fattest wallet. Is that justice?

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