Tuesday 20 May 2014

The Operation Cotton appeal ~ R v Crawley

Updated with Judgment:

On Wedensday 21st May, the Court of Appeal (Criminal Division) will hand down judgment in R v Crawley and others.  The appeal concerns a "terminating ruling" issued by His Honour Judge Leonard QC.  The learned judge ruled that this serious fraud trial should be "stayed" because it had not been possible to obtain suitable legal representation for the defendants and also that no such representation was likely in a reasonable timescale.  The background to the matter is, of course, the imposition by the Ministry of Justice of a 30% reduction in the fees payable to counsel in Very High Cost Cases (VHCC).

On 13th May, the Court of Appeal decided to reserve its judgment.  The appeal is by the Financial Conduct Authority against Judge Leonard's ruling.  The defendants are the respondents in the appeal.  The Ministry of Justice / Lord Chancellor was permitted to intervene in the case. 

The ruling of the judge is available via the Judiciary website - HERE.  Readers may find the skeleton arguments in the appeal of interest: the Financial Conduct Authority; the Defendants; and the Ministry of Justice

An appeal against a terminating ruling is possible under the Criminal Justice Act 2003 section 58 .  The Court of Appeal may confirm, reverse or vary any ruling - section 61.  The Criminal Justice Act 2003 section 67 provides that the Court of Appeal may not reverse a ruling unless it is satisfied that either (a) the learned judge was wrong in law or (b) that the judge's ruling involved an error of law or principle or (c) that his ruling was unreasonable (i.e. a ruling no reasonable judge could have reached on the material before him). 

The decision:

The Court of Appeal held that the stay was to be overturned and that the trial process should therefore continue.  The court's judgment (HERE) was made available on the internet very soon after its delivery in court.  Sir Brain Leveson may be seen delivering the judgment HERE.  The following are the concluding paragraphs:



Section 67 of the Criminal Justice Act 2003 makes it clear that this court cannot reverse a ruling on an appeal in these circumstances unless satisfied that it was wrongin law, involved an error of law or principle or was not reasonable for the judge to have made. We have reached the clear conclusion that this ruling does 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 notconstitute a reasonable exercise of the discretion open to him. Pursuant to section 66(1) and (2) of the Act, the ruling is reversed and we order that the proceedings on this indictment be resumed in the Crown Court at Southwark.


In our judgment, there is no question of a present breach of Article 6 of the ECHR and, should that state of affairs arise in the future, there would, in any event, be remedies short of a stay that could be deployed. We are not saying that there could not come a time when it may be appropriate to order that this indictment be stayed: that time, however, remains very much in the future and problems aboutrepresentation will have to have developed considerably before such an exceptional order could be justified. It would be a matter for the judge to assess on the basis of how matters stand at that point in time.


We cannot leave this case, however, without making some further comment. During the course of the hearing, we made it clear that the dispute between the Bar and the Lord Chancellor about the appropriate level of remuneration for VHCCs was not one in which we could (or should) become involved. It involves a commercial negotiation in which (short of legal challenge) the judiciary can play no part. In any event, it is
not before the court and we have received neither evidence nor submissions from any of the protagonists. That is not to say, however, that we are unmindful of or unconcerned about the issues and the underlying impact of the dispute.


The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future. The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence. Poor quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to 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, developing their skills from thestraightforward work until they are able to undertake the most complex.


In those circumstances, it is of fundamental importance that the MoJ 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: this will require effort by both sides. The maintenance of a criminal justice system of whichwe can be proud depends on a sensible resolution of the issues that have arisen.

Other material:

Law and Lawyers 1st May - Serious fraud indictment stayed in R v Crawley and others

Law and Lawyers 12th May - Denial of justice etc ....

Law Society Gazette 12th May - Sir Anthony Hooper - Time to heed legal aid call

Financial Times blog - David Allen Green.  (Registration is required - but it is free).

Jack of Kent's guide to the Op Cotton Appeal

Adam Wagner's article in The New Statesman

Legal Cheek - #OpCotton 'Reserved': Case so far explained through 9 memorable tweets.  

Jack of Kent - Questions and answers on the Public Defender Service

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