Byline: PAUL CHESTON
THE OUTSPOKEN attack by Mr Justice Butterfield on the legal aid barristers in the Afghan plane hijack trial at the Old Bailey has inflamed the growing controversy over fat-cat lawyers growing rich at the taxpayers' expense.
The judge felt compelled to speak out because the trial ended with a hung jury and there will now be a retrial when the barristers can expect a second bonanza pay-out. But not, he hoped, with such extensive legal representatives at the expense of the taxpayer.
Glaring at the benches, he told counsel: "It is the duty of each legal representative to keep under review the need for more than one advocate to be present in court and to consider whether a legal aid order should be amended to take into account this regulation. It is also the duty of a QC to keep under review whether he could act alone.
"I have no power to order an amendment to a legal aid order [for the new trial] but I draw the regulation to the attention of counsel in this case and to the court generally."
The Old Bailey trial which stretched over four months involved 27 barristers, including a QC and a junior counsel for each of the 12 defendants - all funded by legal aid which amounted to a substantial part of the estimated [pound]12 million cost of the hearing.
Some of the senior silks are estimated to have earned six-figure sums for the hearing - as the judge pointed out, for playing little part in the trial.
Much of the rest of the legal aid costs went to the seven firms of solicitors employed in the case.
Legal sources say that QCs in such a trial would expect to be paid between [pound]30,000 and [pound]50,000 for all pre-trial work depending on their experience and the complexity of the individual defence, plus refreshers of up to [pound]5,000 a week.
In fact the judge absolved Ben Emmerson, who represented the first defendant Ali Safi, of any blame and said he could "fully justify doing the case and the assistance of a junior".
But the judge added: "I have grave doubts whether those observations could properly be applied to many others in this case. That is not a reflection on anybody in the first trial when, among other things, one of the defendants was a loose cannon and complicated an already substantial and serious case."
The judge clearly did not aim his remarks at all the barristers in the case but questioned whether two counsel or a QC could be justified for every defendant.
The judge pointed out that while some barristers, particularly Mr Emmerson, worked hard and "bore the heat and burden of battle" in court, others found they had little to do in court other than take notes.
In his rare but unforgettable speech Mr Justice Butterfield spoke of his "obvious concerns about the cost of legal aid" and pointedly wondered how it was necessary for two counsel to represent each defendant when some had called no witnesses or evidence and confined themselves to a few questions and a closing speech.
The retrial was ordered after the jury was deadlocked and failed to reach verdicts on the full charges facing 11 of the 12 defendants after 40 hours of deliberations.
Barristers are already at war with the Lord Chancellor Lord Irvine over his plans to cut legal aid rates for criminal trials. He is determined to reduce the burden to the taxpayer of the one per cent of cases, mostly murder, fraud and drug cases, which eat up 40 per cent of the legal aid budget for crown court cases.
In retaliation barristers have drawn up plans to scrap their professional guideline to take legal aid work whatever the price and their long standing "cab rank "rule to take cases in rotation when they come along rather than pick and choose.
Officials in the Lord Chancellor 's Office have been embarrassed by the newspaper headlines exposing the massive cost of the Afghan trial which would be inflated even further by the retrial. …