Sir Anthony Hooper is a retired Lord Justice of Appeal. Writing in the Law Society Gazette- Time to heed legal aid call (12th May) he comments that - 'The criminal justice system, which during my career at the bar enabled legally aided defendants to have much the same quality of representation as the prosecution and privately represented defendants, is now all but destroyed.' Sir Anthony's article is set against the background of the 'terminating ruling' by His Honour Judge Leonard QC in R v Crawley and others to the effect that the lack of legal representation for the accused individuals would amount to an abuse of process of the court if the cases were to proceed further. Please see the earlier post on Judge Leonard's ruling. The prosecution are seeking to appeal Judge Leonard's ruling and the matter will be heard on Tuesday 13th May. An appeal against a terminating ruling is possible under the Criminal Justice Act 2003 section 58 and the powers of the Court of Appeal relating to such appeals are in the Criminal Justice Act 2003 section 67. It will be noted that, for the Court of Appeal to overturn the trial judge's ruling, there has to be a finding that either (a) the trial judge was wrong in law; or (b) that the ruling involved an error of law or principle or (c) that the ruling was unreasonable (i.e. a ruling no reasonable judge could have reached on the material before him). . The extent to which reporting restrictions under the Criminal Justice Act 2003 s.71 will be applied remains to be seen. Basically, restrictions apply unless the court rules otherwise.
Additional links - A very good write up on the situation defendants in Very High Cost Cases are facing may be read at Financial Times blog - David Allen Green. (Registration is required - but it is free). See also Jack of Kent's guide to the Op Cotton Appeal and Adam Wagner's article in The New Statesman
The hearing 13th May - The Court of Appeal has reserved judgment for a short time. - see Law Society Gazette 13th May. The Ministry of Justice / Lord Chancellor was permitted to intervene in the case but not to introduce new evidence. See also Legal Cheek - #OpCotton 'Reserved': Case so far explained through 9 memorable tweets. (I understand that reporting restrictions were lifted following an application by the press).
Skeleton Arguments: Thanks to Jack of Kent and Crimeline, the skeleton arguments of those involved in this appeal are: Ministry of Justice; the Financial Conduct Authority and the Defendants.
The Jeffrey Review of Independent Criminal Advocacy has now reported - Ministry of Justice.
Here are links to the reactions of the Bar Council and the Law Society. An interesting article by Dan Bunting also appears on Halsburys Law Exchange 9th May - The Jeffrey's review - a challenge to the Bar. Bunting points out that - 'This was one of the two Reviews (Leveson’s on efficiency in the court system being the other) that the MoJ have promised to consider before deciding whether some or all of the cuts to AGFS and the further 8.75% cuts to solicitors and barristers are implemented.' There is no doubt that this report will be uncomfortable reading for many in the legal profession and there are serious problems to be addressed and, very possibly, limited time to do so.
The Criminal Justice and Courts Bill is making its way through Parliament. Martin Partington's blog has a very good post on the Bill.
Twitter on the appeal in R v Crawley and others:
So: @MoJGovUK instructs top commercial QC to explain why fraud trial defendants don't need top commercial QCs. #OpCotton ht @rossbalham
— Jack of Kent (@JackofKent) May 12, 2014
So Grayling uses top comercial silk & PDS advocate to oppose stay of proceedings so at trial Ds can be rep'd by another PDS advocate? What?
— PJ Kirby (@kirby_pj) May 12, 2014
So Grayling wants to use #PDS barrister to argue that #opcotton can go ahead with Defs represented by #PDS Barrister http://t.co/Gar20gQx2T
— james vine (@JamesPSVine) May 12, 2014
@MChawlaQC @ffgqc @McDermottQC @SCynic1 @PaulDarlingQC @JackofKent @carmeliteuk .. the idea of the PDS is to defend clients, not ministers.
— Carl Gardner (@carlgardner) May 12, 2014