Wednesday 21 May 2014

Some reflections on the Op Cotton appeal

A shot across the bows?
'It has now become about the desire for control and the flailing avoidance of political embarrassment by any and all means necessary' - Jenny McCartney, The Telegraph 21st May.

Nigel Lithman QC (Chairman of the Criminal Bar Association - CBA) has given a response to the ruling of the Court of Appeal (Criminal Division) in the Operation Cotton appeal - (see previous post).   

Whilst members of the independent criminal bar are free to accept briefs for Very High Cost Cases (VHCC), they have chosen not to do so due to the 30% cut in fees imposed by the Ministry of Justice.  (Actually down by around 44% since 2007).  Mr Lithman makes it clear that the CBA has not sought to dissuade barristers from accepting VHCC briefs should they choose to do so.

In his statement, Mr Lithman refers to the agreement of late March 2014 which I have set out below.   The agreement was accepted
by the criminal bar following a ballot - (see previous post).  The refusal of the Bar to accept VHCC briefs has been met by a government decision to further expand the Public Defender Service (PDS).  Mr Lithman states that the government had agreed to talk with the Bar's leaders (including the CBA) and not to expand further the PDS.  Mr Lithman's statement ends by noting - 'If they will not abide by this accord this will be seen as an inappropriate act of bad faith on their part.'  

The agreement does not actually refer to PDS but states that - 'As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.' 

The Ministry of Justice / Lord Chancellor was given permission to intervene in the Operation Cotton appeal against the ruling of His Honour Judge Leonard QC to stay the indictment in a serious fraud case.  The Financial Conduct Authority (FCA) appealed against Judge Leonard's ruling and the intervention of the Lord Chancellor was permitted on the basis that he did not introduce new evidence.  Whether or not the Lord Chancellor actually did introduce new evidence is, in my view, debatable.  In the Ministry's skeleton argument, the point was made that the government had, as an emergency measure, decided to further expand the PDS so that defence counsel could be found for this case and other cases.  However one looks at this, it is hard to escape the view that it must have had some influence on the Court of Appeal.  At the end of the skeleton argument, it is stated that -

'The concern expressed by the learned judge that there was “no realistic prospect” that the Defendants would be supplied with suitable representation within a reasonable time can be allayed by the Lord Chancellor’s commitment to supply such representation through an expanded PDS, which can now represent multiple conflicted Defendants.'

It may be politically convenient to disguise this mess as an emergency but it is a situation that was entirely foreseeable.  The decision to expand the PDS is a measure that the government is entitled to take though it can be sensibly argued that the costs of doing so will be much higher than restoration (in whole or in part) of the VHCC fee cut.  Staff employed by the PDS will be salaried and will have the usual taxation-funded entitlements that civil servants generally enjoy including a generous pension scheme.

Turning to the Court of Appeal's judgment of 21st May,  relating to Judge Leonard's decision.  The Court of Appeal allowed the Financial Conduct Authority's appeal and ruled that the Judge's ruling 'did involve errors of law or principle and, in any event, was not reasonable in the sense that a number of the conclusions reached were not reasonably open to him based on the evidence and, in any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him.'

Whilst I did not expect the Court of Appeal to uphold the Judge's decision, I certainly did not expect such an excoriating judgment overturning the learned judge.  I expected something along the lines of a decision to the effect that, in the light of the Ministry of Justice's new attempts to find advocates in the PDS, that an adjournment was now an appropriate course to take.  The situation before the Court of Appeal was not, in the light of the Ministry's submission, anything like the situation faced by Judge Leonard at the time of his ruling.

The stakes for the prosecution of VHCC were very high and the government's policy of cutting funding was in the spotlight.  This is a policy with which the Lord Chancellor is personally identified. However, it is interesting to consider the basis on which the court permitted his intervention.  According to paragraph 27 of the judgment, the intervention was permitted 'without demur' from the parties.  The judgment does not state any other basis on which the intervention was permitted in an appeal against a trial judge's terminating ruling which would, normally, have involved only the prosecution and the defendants.

The court's judgment contains several indications of the complexity of the case - see, for example paragraph 2 - 'The volume of papers amounts to some 46,030 pages; 194 excel spreadsheets, 864,200 lines of entry and a case summary of 55 pages.  Counsel has to master this material and trial preparation also involves careful study of the relevant law (statutory and case law) as well as preparation for the examination and cross-examination of the witnesses.  This is a lengthy task and requires counsel of appropriate expertise and experience.  Such qualities are not acquired overnight but are the outcome of many years of, as Sir Brian Levson noted, 'developing their skills from the straightforward work until they are able to undertake the most complex.'

A further reflection is that the fee cuts did not apply to trials commenced before 31st March 2014.  It is a pity that the original level of fees was not maintained for those cases that had been commenced before that date even if the trial had not started.  Such a position could well have avoided the problem encountered in the Op Cotton case.

The judgment may well give the Lord Chancellor a breathing space.  Upholding the stay would have been a disaster for his VHCC fees policy and, if appropriately qualified counsel are not forthcoming, there remains the possibility of a stay eventually being imposed (see judgment at para. 55).   The Lord Chancellor ought therefore to see this as something of a shot across his bows.

Will there be an appeal to the Supreme Court?  Given that the Court of Appeal held that Judge Leonard had erred in law or principle, the door to an appeal seems to be ajar.  No doubt the matter will be under consideration by lawyers for the defendants.  [Note:  Rulings made under Part 9 of the Criminal Justice Act 2003 may be appealed to the Supreme Court but only if Criminal Appeal Act 1968 s33(2) applies].

The impasse over VHCC between the independent Bar and the government has to be resolved.  The Lord Chancellor's decision to further expand the PDS has angered the Bar and does not, quite frankly, auger well for a rapid solution to the problem.  One would hope that the March agreement still holds to the extent that the Government will work with the professions to consider possible better alternatives to the VHCC scheme.  Time will tell !  (Update: The Criminal Bar Association has asked to have further discussions with government about VHCC - CBA Press release 22nd May)

Media comment:

The Telegraph 21st May - Jenny McCartney -  Why is Chris Grayling trying to nationalise the criminal bar at a higher cost to the taxpayer?

'Mr Grayling is seemingly now bent upon nationalising the criminal bar at greater cost to the taxpayer. This is a curious position for a Conservative minister to find himself in.  So what is this really about, if not savings? It has now become about the desire for control and the flailing avoidance of political embarrassment by any and all means necessary.'

The Lawyer - Joanne Harris - 21st May - FCA succeeds in reversing stay in Operation Cotton trial

ICLR - PDS, PDQ! Operation Cotton and Operation (saving the MOJ's) Bacon

Jack of Kent - Useful links on the Operation Cotton Appeal

The Agreement of March 2014:

Agreement between Ministry of Justice, Bar Council and Criminal Bar Association 
No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014. 
Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that:
1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below.  This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind.
2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence. 
3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular: 
· Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy;
· Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;  
· criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;  
· any impacts on legal aid spend from falling crime rates; and 
· a comprehensive analysis of income and earnings of criminal advocates, including effects from changes in recent years.   
4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported.
5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament. 
6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.  
7. The Officers of the Bar Council and the Criminal Bar Association, having engaged with the Circuits have stated that, in return for the Government’s proposed approach (outlined above):
· whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs 
· there is no reason why barristers who want to work on VHCCs should not do so; 
· the ‘no returns’ policy should be withdrawn; and 
· normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action. 
8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.   
27 March 2014

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