The trial of nine lawyers over an alleged plot to scam £11m from the legal aid system was abandoned last Friday after several counsel withdrew to self-isolate.
The trial at Southwark Crown Court was in its 10th week and 41st day at an estimated cost of £8.6m.
Mr Justice Goose said for “the first time in my experience a trial will have to be stopped in this way”.
Barrister Shahid Rashid, 59, together with solicitors Razi Shah, 49, and husband and wife Rasib Ghaffar, 50, and Kareena Maciel, 47, are said to have falsely claimed £1.9m in costs for a Bournemouth Crown Court trial in 2011.
Also accused in the conspiracy are solicitors Azhar Khan, 48, Joseph Ameyaw-Kyeremeh, 69, and legal clerk Gazi Khan, 49.
Azhar Khan and Gazi Khan are further accused of fraudulently claiming nearly £9m in legal aid relating to two 2012 trials at the Old Bailey and Isleworth Crown Court.
On Friday, Christopher Blaxland QC and Alexandra Felix, for Maciel, and Peter Griffiths QC, for Ghaffar, announced their decision to join Sean Hammond, for Azhar Khan, and Vedrana Pehar, also for Ghaffar, who dropped out earlier in the week to self-isolate.
Mr Blaxland said: “It’s a case of Russian roulette if I get this thing. It is not only irresponsible but reckless in the current situation to continue… This is no time to soldier on. We need to follow the guidelines. I fall into the category where I shouldn’t be in court.
“Government rules apply until the jury walk into a court. They sit with their fellows, turn over paper together, elbow to elbow. This is exactly the gathering the government have advised us should not be taking place. At some point the penny has to drop that it is simply unsafe to continue with this trial.
“I have decided that I shall withdraw from the case. It would not be fair on Miss Macial for the trial to continue.”
Ms Felix explained that, with small children and an elderly mother, she was being placed in an “invidious position”, saying that as the court had decided her client should be represented by a QC, it would be unfair if in the end it was her who was acting alone.
Ms Pehar self-isolated earlier in the week and Mr Griffiths followed on Friday: “From a safety point of view, for my own and my family, I am well and truly in a vulnerable category. My junior is self-isolating. I have no junior. Somebody has to speak on Mr Ghaffar’s behalf. This is not conditional, I have made a decision and discussed it.”
Azhar Khan’s barrister, Andrew Trollope QC, who is in his 70s, also withdrew: “It’s the first time in 48 years of practice I have taken this step but I have done it because of the guidance on social distancing for everyone in the UK and protecting older people and vulnerable adults.
“It seems my continued presence in this courtroom is in complete contradiction to that stringent guidance. I have been advised by my medical practitioner. Her words were ‘you ought not to be there’.”
The remaining defence lawyers did not drop out of the case but argued it should be dismissed or postponed.
Prosecutor John McGuinness QC had argued it could be possible to continue the case with the aid of technology, saying: “The court cannot ensure a perfect trial, but a fair trial is possible. The guidance we are getting is wherever possible technology should be used.
“Those who have to withdraw ought to give consideration as to whether or not they can effectively participate in that manner. We are very close to the end of the trial.
“Arrangements could even be made for counsel to attend court in a matter that doesn’t involve social interaction or public transport… Where there is a will there is a way.”
Shah’s lawyer, Patrick Gibbs QC responded: “To say the court is obliged to provide a fair trial but not a perfect trial is an unfortunate way of proceedings.”
John Hardy QC, for Ameyaw-Kyeremeh, added: “As an exercise in straw-clutching his submissions will linger long in the memory.”
Goose J said he recognise that the barristers’ decisions to withdraw were “exceptionally difficult… pitching their own professional duty with their clients and courts with duty to themselves and their families to the potential risk of being infected. No one could criticise them.
“To try one person alone in a conspiracy case is neither practical or desirable. The stage has now been reached where despite all reasonable trial management the trial cannot go further.
“Remote access is to be used wherever practicable. It may work in short hearings or simple trials but it is neither practicable not fair to insist the trial continues with counsel making a speech through a video-link where other counsel are present to make their own speeches.”
A decision will now be made on how the case will proceed.