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Defending the indefensible

An astonishing situation has arisen in UK courts, whereby fraud cases brought by the State are being dropped as the defendants claim to be unable to find defence lawyers, following budget cuts to public legal aid. The problem is that lawyers are refusing to take on the work at reduced rates.

In one case which was brought against men convicted of a land bank fraud, in which members of the public were allegedly mis-sold plots of land, Judge Leonard QC granted a stay of proceedings against the defendants on the basis that no lawyers would take on the case.

In his ruling on 1 May 2014, he noted that “I further find that there is 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.”

The government has cut fees for lawyers working on Very High Cost Cases (VHCCs) by 30%, while work on other Crown Court cases has been cut by up to 18%. As a consequence, lawyers are turning down the cases.

“I have no reason to think that there is a realistic prospect that [other defence lawyers] will accept contracts in VHCC cases on the present terms,” Judge Leonard continued.

The particular challenge for fraud cases is their complexity. The case in point involved 46,030 pages and 194 excel spreadsheets. Fraud involves obfuscation by necessity, and that hardly helps the ability to try them with a jury of the defendants’ peers.

The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights, however the potential for such a system to be gamed must be a concern to prosecutors. If the court system in any country is unable to support the prosecution of cases that involve finance due to their complexity, there is a risk that the prospect of an ‘unfair trial’ being perceived.

If this lack of fairness is due to a lack of competitiveness amongst legal firms, who are unwilling to fight for the £100,000 that a defence lawyer would reportedly earn working on this case (estimated to last for three months), it suggests (perhaps) that lawyers do not operate in a competitive market.

That is a disconcerting thought, given the level of legal work being undertaken in world of finance at present.



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