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

    Comment number 16.

    Can you afford a fair trial?

  • rate this

    Comment number 15.


    Yet AGAIN we see this dog of a tory led coalition's ZEAL for cutting spnding on PURELY IDEOLOGICAL grounds (http://www.bbc.co.uk/news/uk-27459621) come back on BITE THEM ON THE (insert adjective of choice)....

    ....ANOTHER u-turn on the way oys & girls...

    ...this OMNISHAMBLES is the MOST INCOMPETANT Govt, in living memory.....if not EVER....

    ...roll on May 2015...!!!

  • rate this

    Comment number 14.

    I would advise anyone that loses a case under legal aid, proceed to appeal on the grounds of inadequate representation. If every trial goes to appeal it will double the legal aid costs and surely cause a rethink. Having said that getting lawers to work for a living instead of riding the gravy trail of free unnaccountable representation would shake up the legal system, you might get decent lawyers.

  • rate this

    Comment number 13.

    The foaming at the mouth on this board reminds me of the venom directed at doctors. My favourite was 'only paid if the patient survived'

    5 years ago I was quoted a £400 call out fee by a plumber. Maybe we should deny the plumber NHS, police, fire brigade etc too. (BTW I got a Pole out for £100. Wonder what Polish barristers charge ?)

  • rate this

    Comment number 12.

    @8 You may not find many people agreeing with your claim that the equivalent of 40k a year is a low wage.

  • rate this

    Comment number 11.

    If this trial doesn't go ahead its a slap in the face of the whole country. Barristers are no more precious than other people, they are there to do a job, get on with it, you are not doing anyone a favour.

    If they want to be special let's give them special treatment, let them name their price but exclude them from every other service, no bin men for them , no fire brigade, NHS, police etc.

  • rate this

    Comment number 10.

    Legal Aid should enable the creation of a competent defence team.

    If those on trial wish to be represented by those QC's expert in extending the trial and obscuring the issues thus increasing the chance of an aquittal then they should pay themselves.

  • rate this

    Comment number 9.

    why should people need representation - all we need is a Judge and jury - if no side has a barrister then the whole thing will be cheaper and fairer.

    why should someone get away with it because they afford to pay more than the other side.

  • rate this

    Comment number 8.

    "Already being paid too much" - you study for 5 years, run up debt, practice for 15 to 20 years to become the best in your profession - you get your pay cut year on year until it's often no more than £30 to £40 per hour for the most complext cases. You sign up to work for months on a case, and part way through, the Govt tells you actually we're going to give you £20 or £25 per hour. Unreal!

  • rate this

    Comment number 7.

    It should be compulsory for barristers to take on a certain number of hours doing legal aid work.

    If this case takes months then I expect the barristers involved not to be required to do any more.

  • rate this

    Comment number 6.

    Hire public defenders who are paid a wage rather than fees per case. They would then be available on a means-tested basis to anyone not wishing or able to employ a barrister on a fee basis.

    Of course, as the country is skint, public prosecutors should also be on wages...

  • rate this

    Comment number 5.

    What does it mean?

    It means we are now mainly a nation of serfs with only the privileged few having access to what was once a famed justice system.

    How low do we have to go before we get shot of this dysfunctional over-rewarded Establishment?

  • rate this

    Comment number 4.

    Forget the ridicules fee's lawyers get paid for a moment, we all know legal costs are stupidly high. What is being said is that unless you can afford to pay yourself, your not entitled to an equal level of defence as someone who can. How can that possibly be justice?

  • rate this

    Comment number 3.

    Good news, we cannot be held to ransom by barristers who are already being paid far too much.

  • rate this

    Comment number 2.

    Nationalise the law service (like the NHS) so everyone gets an equally poor barrister.

    This will end the unfairness where those whose can afford the most expensive barrister wins.

  • rate this

    Comment number 1.

    So what this means is that the government will be looking to appoint cheaper and quite possibly less qualified solicitors for the defence of people on trial that require legal aid. There is no mention that the prosecution lawyers will be equally lower paid or less qualified. Am I the only one who see's something wrong with this?


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