Operation Cotton: Court of Appeal ruling explained

 
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The Court of Appeal has overturned a decision to halt a fraud trial because of a lack of specialist criminal barristers prepared to take on the work.

I've covered the initial row over the prosecution - known as "Operation Cotton" - in an earlier blog.

The stakes could not have been higher going into the Court of Appeal. Had Sir Brian Leveson and the two other senior judges hearing the case upheld the stay of the prosecution, it would have amounted to a hammer blow to Justice Secretary Chris Grayling's attempts to slash some parts of the legal aid bill.

Perhaps more importantly than the finances of the public purse, it could have brought the wheels of justice in complex and very high-cost criminal trials to a grinding halt.

Emergency measures

So why did the Court of Appeal overrule Judge Anthony Leonard QC?

His judgement was that the defendants could not find any specialist self-employed barristers or advocates who were employed by a government agency called the Public Defender Service.

Barristers had refused to sign new contracts for Very High Cost Cases after a 30% cut in fees - and the PDS, a government agency, was said to have nobody suitable available.

During the appeal, the Ministry of Justice said that it had implemented emergency measures to recruit more public defenders.

If that recruitment drive is successful, then ministers hope they will have sufficient barristers on the books to undertake work in cases like Operation Cotton - and that the costs will be lower than legal aid payments to traditional self-employed advocates.

In the judgement, the Court of Appeal says that it is "undeniably the responsibility" of the Lord Chancellor Chris Grayling to sort out how the men in Operation Cotton are going to be represented.

So, quite simply, the Court said that while there may come a time when the case could not go ahead because of a lack of representation, that time had not yet come.

Sir Brian Leveson said: "On our analysis there was a sufficient prospect of a sufficient number of PDS advocates who were then available who would enable a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC."

So the ball is now firmly in the Ministry of Justice's court.

But even if Operation Cotton does finally get to trial, the judgement has not made the bigger problem go away. There needs to be some kind of new long-term deal between barristers and the government (that is assuming that the government isn't going to continue to expand the PDS).

And that's why Sir Brian Leveson has inserted a carefully worded observation at the end of the judgement.

He said that the criminal justice system needed the best possible advocates to ensure trials were fair, efficient and avoided potential miscarriages of justice.

"We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly-funded work."

Perhaps, most importantly, he notes that some of those advocates will be the judges of the future - the subtext being that if the government wants good decisions in the courts, then it needs to ensure the best people see a future in the business.

"In those circumstances, it is of fundamental importance that the Ministry of Justice, led by the Lord Chancellor, and the professions continue to try to resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases.

"The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution."

 
Dominic Casciani, Home affairs correspondent Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this
    0

    Comment number 196.

    If trials are allowed to proceed without adequate defence advocacy then we are on a very slippery slope towards US Style justice where the quality of the defence depends on your ability to pay; As long as Criminal law is the poor relation of other branches then the best talent will not take up that specialty and the looser will be you, me and the concept of justice

  • rate this
    0

    Comment number 195.

    it is "undeniably the responsibility" of the Lord Chancellor Chris Grayling to sort out how the men in Operation Cotton are going to be represented.

    +++

    One solution might be to offer the work to some Romanian barristers who might just be prepared to do it for the 30% reduced fee that our "I'm not getting out of bed for less than what I'm currently on" home grown lot are balking at ...

  • rate this
    +2

    Comment number 194.

    Was it not Alex Cameron, brother of David, who tried to get a multi-£m fraud trial of an (allegedly) bent finance company dismissed because there wasn't enough tax-payers' money washing about for sufficient legal aid for the poor dears?
    Yep all in it together....

    http://www.bbc.co.uk/news/uk-27501825

  • rate this
    -1

    Comment number 193.

    Call in the human rights layers and Brussels to.Daily rate for a trial was (£529.80, now down to £353.20 a day.)
    Thats only £1765 a week
    How could any one live on that tiny pittance
    Its criminal slavery .Makes me want to rob a bank to keep you all employed.

  • rate this
    0

    Comment number 192.

    188. CityBoy

    I think you missed the note of sarcasm in my post.

    ---

    My humble and most profuse apologies. So little insight on display on this thread that I quite missed yours.

  • rate this
    0

    Comment number 191.

    Suspect we have all got the message.
    Our Lawyers are not earning enough money.

  • rate this
    -1

    Comment number 190.

    Just another system open to abuse by all sectors of society.

  • rate this
    0

    Comment number 189.

    Anyone overheard yet what Prince Charles thinks about the legal aid ruling?

  • rate this
    0

    Comment number 188.

    187.SJH

    Well done sir. Lets just hope you haven't made too many cock ups or broken too many CML rules cos if you have the only person you and/or your Executors or Beneficiaries will able to sue is err...yourself.
    ----
    I think you missed the note of sarcasm in my post.

  • rate this
    0

    Comment number 187.

    185. CityBoy

    Well done sir. Lets just hope you haven't made too many cock ups or broken too many CML rules cos if you have the only person you and/or your Executors or Beneficiaries will able to sue is err...yourself.

  • rate this
    0

    Comment number 186.

    148. Little_Old_Me
    "Govt. can afford to let the already OBSCENELY wealthy get EVEN MORE OBSCENELY rich:"

    I'll try and make it simple, so you can follow:

    - Presume that last year 50 billionaires came to live in the UK.
    - Plus 250k poor immigrants come here too

    Now think what it does to the wealth distribution figures?
    And your rich getting richer argument?

    Then tell me, who exactly got poorer

  • rate this
    0

    Comment number 185.

    Writing a will and Conveyancing, Done both. Corrected the Conveyancing clerk who believed I, a common man, was not allowed to do it myself - loaned him Michael Joseph's book - had to ask for it back.

    My point exactly, if you can do it yourself why bother with a lawyer and then whine about fees you don't have to pay!

  • rate this
    0

    Comment number 184.

    150. Sproutaholic - need to get your facts right before commenting. VHCC - highly complex cases paid at the old rates for a QC (top experienced silk) for a category 3 case, the old rate was £95.55 per hour which with the 30% is down to £63.70. Daily rate for a trial was £529.80, now down to £353.20. Compare that to what you pay your car mechanic! Plus many more hours will be unpaid on a case.

  • Comment number 183.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • rate this
    -1

    Comment number 182.

    Davey Trasker Does not contradict anything I said, lead barristers at the Old Bailey will be the top and mst experienced QCs in the country, if you went to a magistrates court in Wolverhampton or Plymouth on a typical weekday I can assure you the barristers there will not be wearing Rolexes

  • rate this
    +4

    Comment number 181.

    Everyone is entitled to a defence. People are charged with crimes they did not commit but when acquitted they are not entitled to reimbursement of any legal costs they may have paid themselves from public funds. Is that justice? Perhaps some posters will feel differently if they need a lawyer to defend them on a charge of a crime they did not commit

  • rate this
    0

    Comment number 180.

    Absolutely no point commenting on this story - you get posts never appearing and an email saying it violet "special election day rules".

    What a farce. What exactly has this story got to do with an election today?

    And who knew there even was an election today? Evidently not the electorate based upon being able to hear a pin drop at the polling stations.

  • rate this
    0

    Comment number 179.

    159.CityBoy

    No.95, if you think its so simple and routine then there is no reason to instruct a lawyer. You can do both of these things yourself thereby saving you money and somebody else's time.
    ===
    Writing a will and Conveyancing, Done both. Corrected the Conveyancing clerk who believed I, a common man, was not allowed to do it myself - loaned him Michael Joseph's book - had to ask for it back.

  • rate this
    +4

    Comment number 178.

    Justice is not something that should depend on how much money you have. Nor is education, healthcare, water quality, and so on. We can't allow a system that refuses its citizens the right to a fair trial if they're not fortunate enough to have the funds for it. It would be worse than America's bail system.

  • rate this
    0

    Comment number 177.

    What does it mean?

    It means it is a restrictive practice and we are sliding into a bullying dictatorship

 

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