Operation Cotton Appeal: the FCA skeleton argument

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APPLICATION FOR PERMISSION TO APPEAL PURSUANT TO SECTION 58 CRIMINAL JUSTICE ACT 2003 AGAINST TERMINATING RULING

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1.         INTRODUCTION

1.1                            This is an appeal against a ruling made by His Honour Judge Leonard QC on 1 May 2014 in which he stayed the indictment against the above-named defendants as an abuse of the process of the court.

 

1.2                            Section 67 CJA creates the Court of Appeal’s powers: “The court may not reverse a ruling on appeal … unless it is satisfied — (a) that the ruling was wrong in law; (b) that the ruling involved an error of law or principle; or (c) that the ruling was a ruling that it was not reasonable for the judge to have made.” A ruling will include a decision to stay an indictment.[1]

 

1.3                            His Honour Judge Leonard QC stayed the indictment on the basis that:

 

  1. ‘to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of the court’ (Ruling para 84) –and,

 

  1. ‘…if I am wrong about that, I further find that there is no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015, from any of the sources available to the defence, including the PDS’ (para 86).

 

1.4                            The case raises important issues as to the proper approach of the Court to the ongoing and fluid dispute between the self-employed Criminal Bar and the Ministry of Justice about the fee rates for defence advocates in complex and lengthy trials.

 

1.5                            The issue for the Court of Appeal is whether the judge was right to stay this indictment, even though (a) a fair trial would be perfectly possible in the future; (b) the ongoing dispute may well be resolved; and (c) it is overwhelmingly in the public interest that cases of this kind be tried.

 

1.6                            The FCA does not (and could not) take any position on the substance of the dispute. The Court is in the same position. There are competing public interests. The Ministry of Justice wishes to reduce public expenditure in an age of austerity. The self-employed Bar wishes to maintain its fee income. The greater part of the dispute (covering the Graduated Fee Scheme (‘GFS’)) has already been resolved by negotiation. Over the coming months, there will no doubt be further developments. A fair trial of this indictment will be possible next year and in order to be prepared for a trial next year, there is no need for advocates to begin their preparation now. In these circumstances, there was no good reason permanently to stay the indictment.

 

1.7                            The defendants were due to stand trial for 12 weeks starting on 6 May 2014 for offences related to fraud. Funding is currently available for defence advocates in these trials pursuant to the Very High Cost Case (“VHCC”) scheme. The defendants enjoyed Representation Orders that permitted two advocates. By December 2013, all ten advocates instructed to or intending to, represent the defendants withdrew from the case due to reductions in fees payable in VHCCs. The defendants’ solicitors continued to act but were unable to secure representation for trial. At a hearing on 28 April 2014, there was evidence that the Public Defender Service (“PDS”) did or would by the Autumn (when preparation would need to commence for a trial in January 2015) have sufficient competent advocates available and there was also evidence of non-PDS junior advocates being available.

 

1.8                            The essential issues are:

 

  1. would it be an abuse of the process to adjourn the trial to secure representation for unrepresented defendants?
  2. was there a realistic prospect that competent advocates with sufficient time to prepare for trial would be available?

 

1.9                            The Applicant submits:

 

  1. the law of abuse of process is well-settled,
  2. although the defendants would have faced unfairness if tried without representation, there was a remedy, namely an adjournment to secure representation, and that remedy should have been adopted,
  3. there was a realistic prospect of obtaining competent advocates with sufficient time to prepare for a future trial,
  4. there was no reasonable basis for the judge to find that the State’s actions were such that a stay was necessary to protect the integrity of the criminal justice system; there was no evidence of bad faith, Executive misconduct or other feature to meet that high test,
  5. the prosecuting agency, the Financial Conduct Authority (“FCA”) has acted entirely properly throughout, in seeking to proceed to trial as soon as the defendants are competently represented. The FCA is not responsible for the ongoing dispute. It is wrong in principle that the public interest that the FCA advances by bringing these prosecutions should be frustrated because of a dispute between the self-employed Bar and the Ministry of Justice.

 

2.         THE AGREED PRINCIPLES

 

2.1                            There were a number of principles agreed between the parties:

 

  1. In the circumstances of this case, it would be unfair to try the defendants if they wished to be represented and, through no fault of their own, they were not represented,

 

  1. At the time the trial was due to start (6 May 2014) the defendants would not be represented by advocates who had had sufficient time to prepare their case,

 

  1. The reason for the absence of advocates was the collective refusal of the self-employed Bar to accept the reduction in fees payable to advocates under the VHCC regime (as of December 2013) leading to advocates returning their instructions or not accepting instructions,

 

  1. If a competent advocate were available, the defendant could not refuse to instruct him and claim he was involuntarily unrepresented (see defence submission: Day 1 page 19 line 19ff),

 

  1. There was no fault on the part of the FCA (see defence submissions Day 1 page 33 line 16-22),

 

  1. The test to be applied was ‘is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?’ If there was such a prospect then an adjournment would cure any unfairness.

 

2.2                            On the basis of the principles above, the defence applied for a stay as it would be an abuse of the process to have a trial and there was too much uncertainty to justify adjourning. The prosecution argued that there was a realistic prospect that advocates were or would be available and that, as that would be a complete remedy to any unfairness, the case law suggested an adjournment was the proper remedy for the current absence of defence advocates.

 

3.         THE LEGAL PRINCIPLES OF ABUSE OF PROCESS

 

3.1                            The decision whether or not to adjourn a trial is a matter of judicial discretion. However, that discretion must be exercised on a proper application of the relevant principles of law, and reasonably.

 

3.2                            The judge’s finding was one of stay due to an abuse of the process of the court. Therefore, it is necessary to apply the settled principles of abuse of process. Those principles require that a permanent stay of proceedings is only to be granted where there is no lesser remedy available capable of addressing a breach or prospective breach of an accused person’s Convention rights: see Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68. (Bundle 1, Tab 11, page 243). In the present case, an adjournment of the proceedings to enable all accused to find legal representation, through the self-employed Bar, a higher rights advocate, or the PDS would be an adequate alternative remedy and should have been ordered. It is worth setting out Lord Bingham’s remarks in Attorney General’s Reference (No. 2 of 2001) in detail:

 

“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the Defendant’s rights under Article 6(1).  For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate.  The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established.  If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable, and perhaps, if the defendant is in custody, his release on bail.  It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant.  The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.  The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing.  If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant, or the payment of compensation to an acquitted defendant.  Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash the conviction.  Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

 

  1. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated in R v Horseferry Road Magistrates Court, Ex p. Bennett [1994] 1 AC 42, but [counsel] contended that the category should not be confined to such cases.  That principle may be broadly accepted.  There may well be cases (of which Darmalingham v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where the prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example) as to make it unfair that the proceedings against a defendant should continue.  It would be unwise to attempt to describe such cases in advance.  They will be recognisable when they appear.  Such cases will, however, be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.” (underlining added)

 

3.3                            For the reasons identified by Lord Bingham, a stay is only a proper remedy for a delay in a hearing if a fair hearing is no longer possible. A permanent stay is a remedy of last resort and is only to be adopted if no lesser remedy (such as an adjournment to secure representation) would cure the problem. It is common for trials to take place many years after the relevant events, especially in complex document-heavy cases. The Crown Court is well-used to fairly trying such cases. Even if there were a breach of the reasonable time guarantee in Article 6(1) ECHR, that does not lead to a stay. As Lord Bingham explained, there may be a breach of Article 6(1) and a fair trial.

 

3.4                            In Warren v Attorney General for Jersey [2012] 1 AC 22 (Bundle 1, Tab 12, page 305) the Privy Council considered that even in cases of executive misconduct:

 

…the court would take into account the particular circumstances of the individual case and, exercising a broad discretion, would strike a balance between the public interest in ensuring that those accused of serious crime were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into dispute (see headnote).

 

3.5                            Here, there would not even be a breach of Article 6(1) if the trial were adjourned. It was never even argued that an adjournment until January 2015 to enable the accused in the present case to secure adequate legal representation would result in a breach of the reasonable time guarantee. Indeed, it is not conceded that an adjournment to a date after January next year, would necessarily result in a breach of the reasonable time guarantee. The proposed delay in the trial date has been caused by an exceptional dispute between the Criminal Bar and the Ministry of Justice over the rates paid in VHCC cases.

 

3.6                            In similar cases, the Strasbourg Court has regularly accepted that such delays do not breach the reasonable time guarantee in Article 6(1). And even where the guarantee is breached, it does not necessarily require a stay, or affect the fairness of any conviction.

 

3.7                            For example, in Bucholz v Germany (1981, Application 7759/77) (Bundle 1, Tab 13, page 331) as a result of an economic recession, the workload of the German Employment Courts rapidly increased. Some steps were taken to increase the number of judges, and eventually legislation was passed to expedite proceedings. Nevertheless, there were substantial delays [39-40]. The Court held that “a temporary backlog of business does not involve liability on the part of the Contracting States provided they have taken reasonably prompt remedial action to deal with an exceptional situation of this kind” [51]. The Court therefore held (overturning the view of the Commission) that there was no breach of Article 6(1): “It naturally took some time for the effects of these various measures to be felt. Nevertheless, they demonstrate that the Government were fully conscious of their responsibilities in the matter.”

 

3.8                            In Foti v Italy (1982, Application 7604/76 and others) (Bundle 1, Tab 14, page 351) the applicants were tried for various public order offences following widespread riots in Calabria. Some were acquitted and others were convicted. In all cases, the criminal proceedings were not complex, but were very lengthy. Many cases had to be transferred to another region for trial. The Court held:

 

[61] … the Court would recall the extent of the troubles that occurred in Reggio Calabria from 1970 until 1973 (see paragraph 10 above); these troubles had two important implications for the present case.

Firstly, they engendered an unusual political and social climate, and one in which the courts could legitimately fear, in the event of precipitate convictions or severe sentences, a recrudescence of tension and even a recurrence of the disorders.

Secondly, the troubles were not without effects on the workings of criminal justice. Such effects were felt mostly in the Reggio Regional Court, but the courts in Potenza, to which cases had been transferred, were also confronted with an exceptional backlog of business (see, mutatis mutandis, the Buchholz judgment of 6 May 1981, Series A no.42, pp. 20-21, § 61).

These circumstances must be borne in mind and, in particular, normal lapses of time stemming from the transfer of the cases are not to be regarded as unjustified.

3.9                            The Strasbourg court held that although some unreasonable and unjustified delays had occurred, and there had been breaches of Article 6(1), those delays caused by the exceptional backlog of pending business were not a breach of Article 6(1) ECHR.

 

3.10                        Similarly, in Süssmann v Germany (1996, App. No. 20024/92) (Bundle 1, Tab 15, page 375)  the Grand Chamber of the European Court of Human Rights held that lengthy delays caused by the German Constitutional Court giving priority to reunification cases did not amount to a breach of Article 6(1). This was because , in the exceptional circumstances, there was good reason for the delay (“bearing in mind the unique political context of German reunification and the serious social implications of the disputes which concerned termination of employment contracts, the Federal Constitutional Court was entitled to decide that it should give priority to those cases” [60]).

 

3.11                        The domestic and commonwealth authority is to the same effect. As the Privy Council observed in Dyer v Watson [2004] 1 AC 379 at para. 55, (Bundle 1, Tab 16, page 401) exceptional events may disrupt the timetabling of criminal trials without infringing the reasonable time guarantee in Article 6(1):

 

“It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured.  But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system… Courts are entitled to draw up their lists of cases for trial some time in advance.  It may be necessary to await the availability of a courthouse with special facilities or security.  Plans may be disrupted by unexpected illness.  The pressure on a court may be increased by a sudden and unforeseen surge of business.”

 

3.12                        These observations were recently applied in the case of an accused who was facing trial unrepresented as the result of the recent dispute.  In R v Bennett and Feeney, (Bundle 1, Tab 17, page 463) Manchester Crown Court, 20 March 2014, Turner J. ruled on an application to extend custody time limits in a case in which the impending trial had to be vacated due to the “no returns” policy then being pursued by members of the Criminal Bar.  Turner J took the view that the situation was exceptional, and that the point had not yet been reached at which it could be said that the absence of legal representation had become a systemic problem giving rise to a potential breach of the reasonable time guarantee in Article 6(1).  After citing Dyer v Watson (above) he observed:

 

“37.     Taking into account the sequence of events leading up to this application, I am satisfied that the absence of counsel on the first day of the trial provides “good and sufficient cause” to extend the custody time limit in this case.  I take the view, notwithstanding the defence representations to the contrary, that it would be unrealistic to expect that effective steps could have been taken to avoid the procedural derailment of this trial which I take to be broadly comparable to the “sudden and unforeseen surge of business” referred to in Dyer.

 

  1.              38.      I must, however, sound a note of caution.  The state is under a continuing duty to comply with Article 6(3) of the Convention.  If the unavailability of representation for defendants were to become a persistent and predictable background feature of publicly funded criminal litigation in this jurisdiction then those making applications for extensions to the custody time limits might increasingly struggle to establish “good and sufficient cause”.  The longer the present state of affairs persists the less sudden and unforeseen will be its consequences.”

 

3.13                        The test identified by Turner J was correct. The issue is whether unavailability of representation has become a persistent and predictable feature of publicly funded criminal litigation, or whether it is a temporary matter that is likely to be resolved in a reasonable period i.e. is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future. Further, even if unavailability of representation becomes a more persistent problem, this may properly lead to the release of prisoners on remand, alteration of bail conditions or other remedial steps, but it does not require the abandonment of a properly founded prosecution.

 

3.14                        Accordingly, the test to be applied to stay a case is settled:  (a) there can no longer be a fair hearing or (b) it would otherwise be necessary to protect the integrity of the criminal justice system; often referred to as the first and second limb tests of breach.

 

3.15                        As a lesser remedy of adjournment was available, a fair trial was possible and the case should not have been stayed. Any breach of the reasonable time requirement found (it was not suggested there even could have been such an arguable breach during the period of adjournment sought) could have been dealt with by alternative measures such as the payment of compensation on a claim under section 8 of the Human Rights Act 1998 against the Ministry of Justice.

 

3.16                        By finding that an application to adjourn was a ‘violation of the process of the court’ [84], the judge effectively applied the second limb of the test for abuse namely it would be unfair to try the defendant to protect the integrity of the criminal justice system itself. He erred in so doing. First, such a finding requires matters such as bad faith, unlawfulness, or executive manipulation (see Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68, at para. 25).  This was not argued by the defendants (see more below). Secondly, the FCA is not responsible for the current dispute. There is no sense in which the FCA is open to criticism for failure to ensure that sufficient defence advocates are available. Thirdly, it would be necessary to balance the public interest in prosecution with the need to protect the integrity of the system. We submit that none of those three criteria were met.

 

4.         FIRST GROUND OF APPEAL: ADJOURNMENT WAS THE APPROPRIATE AND PROPORTIONATE REMEDY

4.1                            If the case was adjourned, any advocate instructed before the end of September would have had sufficient time to prepare the case. The judge found that a defence advocate would need not less than 12 weeks to be ready for trial (para 63) (the defence had suggested 2-3 months – Day 1 page 125 lines 12-16). The case is effectively trial ready, any advocate reading into the case would be greatly assisted by the opening note, jury bundles, schedules, admissions in addition to the defence preparation and analysis which would considerably reduce the time required to prepare the case. The defendants have had the benefit of experienced litigation solicitors with well-respected expertise in fraud throughout. Further, three defendants had been severed and the prosecution had confirmed that, for trial management purposes, they would call 18 and not 27 of the key witnesses, namely the investors in the alleged fraudulent scheme.

 

4.2                            The judge found that as a fact there was no realistic prospect that the Bar would accept contracts in VHCC cases at the present terms (Ruling para 79(f)). There was some evidence of advocates being willing to work on these terms but such advocates appeared to be confined to juniors.

 

4.3                            The unchallenged evidence was that there were or would be enough PDS advocates available if instructed. By July 2014 the PDS would have recruited a total of 6 QCs, 10 Senior Higher Court Advocates, 2 Junior Higher Court Advocates (Ruling para 52 + 79 e). Although the availability for two QCs was restricted, there were enough PDS advocates to represent these defendants for this trial if adjourned (note of Ms Toogood).

 

4.4                            Even if, which is not accepted, all ten advocates for the defendants’ trial needed to be provided by the PDS, there were sufficient competent advocates available to be ready for trial by January 2015.  No objection has been raised about individual suitability or professional skill of advocates employed by the PDS. The defence accept that they are required to make use of advocates employed by the PDS if available (para 54 + 59 ruling).

 

4.5                            The judge erred in principle in taking into account that the pool of PDS advocates was too small to cover all VHCC cases currently lacking representation. The issue before the judge was not whether there were yet enough to cover all trials but whether there were enough to cover this trial (Ruling para 79(d)). If the judge were correct, the PDS would need to employ sufficient advocates to cover every potential VHCC cases for the foreseeable future, before any defendant need instruct a PDS advocate. The consequence for other trials is a matter for the judges seized of those trials. Indeed, some trials may be resolved with guilty pleas following legal advice (although the decision of HHJ Leonard QC has of course created an unfortunate and perverse incentive against timely guilty pleas).

 

4.6                            The Legal Aid Agency (‘LAA’) has indicated that “Decisions about further expansion [of the PDS] will be for the LAA and Ministers. The Government has been clear it will not expand the PDS beyond that which is needed “. (See email from Hugh Barrett of the Legal Aid Agency to Claire Lipworth of the FCA dated 28 April 2014.) (Bundle 2, Tab 11, page 589). It is reasonable to assume that as there remain available, and yet to be instructed, PDS advocates, the PDS has not yet reached its capacity. There is certainly no indication that if more PDS advocates were needed, more would not be recruited.

 

4.7                            The defence had submitted that by adjourning, these defendants would be placed further back in a ‘queue’ of defendants requiring advocates (cf Ruling para 61). That argument was misconceived and there was no evidence to support it. Only one person has yet instructed an advocate from the PDS. The judge should have concentrated on the availability of advocates for the current trial. On the evidence before him, there were sufficient advocates available for instruction now, and certainly before September when full-time preparation would need to begin for a trial in January 2015.

 

4.8                            As stated above, if a defendant refuses to instruct a competent advocate he makes himself voluntarily unrepresented. If PDS advocates are the only advocates available, a defendant should instruct them.

 

4.9                            The judge’s finding that “I have no reason to think that there is a realistic prospect that the Bar will accept contracts in VHCC cases on the present terms” is unsupported by any reasoning or evidential basis. On 27 March 2014, the Criminal Bar Association, the Bar Council and the Ministry of Justice reached an accord. The accord states that “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”. Further, “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”.

 

4.10                        The important points are that there is no longer any reason why barristers who wish to work on VHCCs should not do so, and that a review will take place about a long-term replacement for the VHCC scheme.

 

4.11                        On 9 April 2014, the members of the Criminal Bar Association voted to suspend its ‘no returns’ policy and days of action. This was less than a month ago

 

4.12                        The post-accord emails sent to chambers by the defendants’ solicitors were ambiguous inasmuch as they asked whether any advocate was available to conduct a 3 month trial starting on 28 April 2014 under either the VHCC or graduated fee regime. It is not clear from the limited responses provided whether those declining did so because they were refusing to work under the fee regimes, whether they were simply unavailable for the trial period or whether they felt there was insufficient time to prepare for such a case (See for example ALS/17 Bundle 2, tab 5, page 309.)  Barristers’ clerks had not even been asked whether members of the self-employed Criminal Bar would be prepared to take a case at current VHCC rates next year. Indeed, it may be too early for that to even be knowable. Nor is it known whether there may be further negotiations pursuant to the accord about a temporary or permanent replacement for the VHCC scheme, or what the outcome of such negotiations will be. In these fluid circumstances, where the actual situation in January 2015 is unknown, to stay a case permanently now was unnecessarily hasty and precipitate.

 

4.13                        Further, there were positive responses from one chambers (the QCs were busy until next year but did not appear to decline in principle, and juniors would be available under the Graduated Fee Scheme (GFS). There was also evidence of solicitor-advocates being available who could have acted as juniors (see Prosecution’s second skeleton – paras 36-40) (Bundle 1, Tab 10, page 231.)

 

4.14                        In any event, as there were competent PDS advocates known to be available who had sufficient time to prepare for trial, the case did not fall within the category of exceptional circumstances justifying a stay. Nor was there any basis for concluding that the situation would remain static over the coming months.

 

 

5.         SECOND GROUND OF APPEAL: THERE WAS NO BAR TO PDS ADVOCATES ACTING IN CASES OF CONFLICT:-

 

5.1                            The PDS provide advice, assistance and representation to those facing criminal or civil proceedings. The advocates are largely employed barristers with at least one employed solicitor. Although the PDS has its own Code, as we understand it, the advocates are also subject to their own professional codes. In the case of barristers, that is the Bar Standards Board. The current Bar Standards Board Handbook provides for core duties which include:

 

CD2          You must act in the best interests of each client….

 

CD6          You must keep the affairs of each client confidential

 

CD7          You must provide a competent standard of work and service to each client….

 

5.2                            Section 28 LASPO requires the Lord Chancellor to produce a Code of Conduct for the PDS. Section 28 (2) provides that the code shall include—(a) duties to avoid discrimination,(b) duties to protect the interests of the individuals for whom services are provided,(c) duties to the court,(d) duties to avoid conflicts of interest, (e) duties of confidentiality and (f) duties on employees who are members of a professional body to comply with the rules of the body.

 

5.3                            The original PDS Code of Conduct did not permit a PDS advocate to act for defendants in the same trial if there was a conflict between them. On 17 March 2014 the PDS Code of Conduct (Bundle 2, Tab 7, page 565) was amended to enable more than one employee of the PDS to be instructed in a case where actual or potential conflicts existed. The amendment was made after representations had been made by solicitors in this case about difficulties that arose due to conflict and, presumably, was envisaged to apply to cases such as this. The new Code reads:

 

7.1   Subject to 7.3 below, a PDS lawyer, may not act for any one or more clients if to do would give rise to an actual or significant risk of a conflict of interest.

 

7.2  The circumstances where a conflict of interest exists include when the duty of the PDS lawyer…to act in a client’s best interest conflicts with the interests of: a) another PDS client;….

 

7.3   The PDS Advocacy Service may represent more than one client in the same case where there is an actual or significant risk of a conflict of interest between those clients provided that the PDS lawyer or the Provider acting for each client immediately:

a.     notified the client of the conflict or risk of conflict;

b.     explains that the client is free to be represented by other legal representatives outside the PDS Advocacy Service;

c.     explains that, if the client wishes to continue to be represented by the PDS lawyer in addition other client or clients, each client will be protected by the enhanced confidentiality provisions referred to in 5.3 above;

d.    obtains written confirmation from the client that they are content for the PDS Advocacy service to continue to represent more than one client in these circumstances.

7.4   Subject to paragraphs 7.3 and 7.5, where a PDS lawyer…provides legal services to a client and a conflict or significant risk of conflict arises between the interests of that client and any other client of the PDS….then he must cease to act for all clients affected by the conflict.

7.5   Subject to 7.3, if the conflict arises between two or more clients the PDS lawyer …may continue to act for one client provided the PDS is not in possession of relevant information obtained whilst acting for the other client or clients.

 

5.4                            The judge found that he should ‘have in mind whether any legal representatives outside of the PDS will be available to the defendant instructed’ (Ruling para 68). The judge erred in making that assessment. There is no requirement for there to be a source of advocates available outside of the PDS, and the absence of such an alternative resource does not render a trial unfair.

 

5.5                            A defendant whose representation is funded by the State does not enjoy the same degree of choice as if he were paying privately. If there is more than one advocate available he is entitled to choose between them. However, the duty on the State is not to provide a choice of competent advocates but to provide a competent advocate. If, in particular circumstances, only one advocate is available, the client is obliged to accept that advocate or to be voluntarily unrepresented (and therefore not able to claim unfairness due to lack of representation).

 

5.6                            Is there a bar to the PDS acting in a conflict? As a matter of principle, there is no reason why the PDS cannot act for two defendants in conflict in the same way as members of a set of chambers. The fact that PDS advocates are crown employees makes no difference. A firm of solicitors is prevented from so doing due to the fact that each client is the client of the firm and not the individual solicitor assigned. In the case of the PDS, the professional client is a solicitor (in this case from private practice) and the lay client the defendant. The fact that the PDS advocates have the same employer is not an issue. The advocates’ own professional codes and the PDS Code of Conduct permit advocates to act where there is a conflict, and ensure that the lay client’s interests are protected.

 

5.7                            The PDS have produced a protocol for enhanced confidentiality. Although the defence solicitors raised concerns about the protocol, such concerns were fully dealt with by Mr Marshalsay of the PDS [ILH/41]. Further, in her note, Ms Toogood (Head of Advocacy at the PDS) stated that the PDS could manage conflict (Bundle 2, Tab 10, page 587). It is well-established that a written protocol dealing with conflicts, put into place in advance, and creating appropriate information barriers is entirely sufficient to eliminate any real risk of conflicts. See Bolkiah v KPMG [1999] 2 AC 222. (Bundle 1, Tab 18, page 479).

 

5.8                            There can be no realistic suggestion that the system in place at the PDS is less robust than in a set of chambers (which is often based in one site with shared staff and a single clerks room). Many of the original advocates instructed in this case who represented defendants said to be in conflict, came from the same set of chambers. No one has, or sensibly would, raise concerns about the robustness of conflict management in those chambers.  Equally, members of the self-employed Criminal Bar (who are the source of PDS advocates) are well-used to maintaining strict confidentiality over client papers, and fearlessly representing the best interests of their client.

 

6.         THIRD GROUND OF APPEAL: IT WAS NOT NECESSARY TO STAY TO PROTECT THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM:-

 

6.1                            In his primary finding, the judge ruled that:

 

‘…I am compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court.’ [Ruling para 84].

 

6.2                            Effectively, the judge held that (a) the Ministry of Justice has failed to provide the necessary resources to permit a fair trial; (b) the FCA should be held responsible for that failure; and (c) that failure was so serious as to amount to a violation of the process of the court and that the defendants should therefore be acquitted without a trial. Each step in this analysis was, with respect to the learned judge, wrong in principle.

 

6.3                            The proper approach in law is to ask the following two questions:

 

  1. Has there had been some form of executive misconduct or action that called into question the integrity of the criminal justice system? The classic example is the use of unlawful means to bring a defendant before the Court, even if those means did not affect the evidence against the defendant. See R v Mullen [2000] QB 520.

 

  1. How should the competing interests between the need to prosecute serious crime and protect the integrity of the criminal justice system be weighed?

 

6.4                            The FCA submits:

 

  1. There was no executive misconduct, bad faith or manipulation of the criminal process. Once the issue as to non-representation became real, the State took prompt steps to ensure that these defendants could be represented. Any difficulties or delays result from the exceptional nature of the current dispute, and in any event are administrative and procedural delays, not a manipulation of the criminal process.

 

  1. The balancing decision was clearly in favour of adjourning the case until January 2015 and then having a trial.

 

6.5                            The State provides funding for defendants in criminal trials. Public funding for advocates in criminal cases is paid either pursuant to the GFS or VHCC regime. If a case has the potential to fall within the VHCC regime, that fact should be notified to the VHCC department of Legal Aid Authority (“LAA”) who decide whether or not to classify it as such. The GFS fee is a flat fee based upon the volume of papers, the length of the trial and the nature of the offence. The rate is payable irrespective of the amount of work performed on the case. The VHCC scheme is based upon an hourly rate for preparation and a daily refresher for attendance. The number of hours available to an advocate is based upon negotiations with a Contract Manager and, generally speaking, payment will not be made without prior approval.

 

6.6                            The Legal Aid Representation Orders in this case were made pursuant to Regulations 17 and 18 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013/614 (in force from April 2013 but since amended as of December 2013) which provide for the level of representation. The court may make an order for QC and junior advocate if and only if in the opinion of the court a) the case for the assisted person involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel assisted by junior advocate; and, b) either it is exceptional compared to the generality of similar cases or the prosecution have a greater level of representation and the size of the case meets certain criteria.[2] The test for two advocates is met if b) above only is satisfied. The test was amended in December 2013 to add ‘and the individual will or will likely to be prejudiced if they too are not represented by two or more advocates’. The prosecution do not and have not seen the basis upon which the defendants successfully applied for an increased level of representation. Two defendants enjoy Orders for QC and junior. Two enjoy Orders for two junior advocates. Walker originally paid a QC and junior privately but applied for a Representation Order and hoped to have a QC and junior for trial.

 

6.7                            On 9 April 2013, the Lord Chancellor issued a Consultation Paper ‘Transforming legal aid: delivering a more credible and efficient system’. In the foreword, the Lord Chancellor proposed that ‘For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill’. In the executive summary and body of the paper, the Lord Chancellor proposed a reduction of all VHCC rates by 30% (para 1.7 + 2.11) and a tightening of the rules governing the decision to appoint multiple counsel.

 

6.8                            On 16 April 2013, the defendants were charged with the offences in the indictment.  The first appearance took place at the City of London Magistrates’ Court on 10 May 2013 when the case was sent to Southwark Crown Court. On 21 May 2013, there was a preliminary hearing at which the Honorary Recorder of Westminster set down a trial date of 28 April 2014. He also indicated that he would consider applications for two advocates and required copies of CVs to ensure that advocates would have the requisite experience to undertake the role of advocate in the case.

 

6.9                            On 5 September 2013, having considered representations, the Lord Chancellor produced a second consultation paper ‘Transforming Legal Aid: Next Steps’. Although there were changes to some initial proposals, there was no change to the proposed 30% reduction of VHCC fees nor the proposed restrictions on the use of multiple advocates (para 2.45 + 2.48). It was widely understood that there would be reductions in fees and the issue arose as to when those reductions would be introduced. By this time, the trial date had been fixed and advocates had been instructed. As far as the State would have been aware, the advocates originally to defend these defendants remained instructed and there was no need to take any steps to address the position.

 

6.10                        It became clear in late November that the advocates originally instructed were either refusing to sign the VHCC contract or terminated their contract in anticipation of the new fee rates. By this time, the defendant Walker had ceased to pay privately for representation following which his advocates withdrew and he applied for a Representation Order. In anticipation, some defendants applied to break the trial fixture due to the inability to secure representation. The application was held to be premature and refused. This would have been the first opportunity for the State to have learned of the difficulties in this trial with these advocates.

 

6.11                        On 2 December 2013, the Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013 [SI 2013/2804] came into force and amended the rates of fees payable in VHCCs. It applied to new and existing contracts save where a trial date had been set before 2 December 2013 and the trial date was on or before 31 March 2014. It, therefore, applied to this trial.

 

6.12                        On 13 December 2013, an application to stay the indictment based upon lack of representation was served and responded to on 19 December 2013. On 23 December 2013, His Honour Judge Leonard QC severed the trial, with the trial of the first five accused due to commence on 28 April 2014 with a time estimate of three months; the second trial of the remaining three defendants was listed for 15 January 2015.  In addition, on this date the LAA informed the parties that it was willing to de-classify the case so that advocates could be paid under the GFS.  In the event, advocates did not take up this offer, which accordingly has lapsed and the case remains classified as a VHCC for advocates.

 

6.13                        It would appear that at about this time, there was some hope that private advocates would accept instructions. Irrespective of whether advocates would be available from chambers or firms of solicitors, the PDS also sought to recruit additional advocates. On or around 20 January 2014, the PDS advertised for further higher court advocates. On 10 March 2014, the Under Secretary of State at the Ministry of Justice informed Parliament of steps being taken to ensure unrepresented defendants in VHCCs were adequately supported in court by saying ‘to ensure that defendants are adequately represented in court, the Public Defender Service are recruiting advocates who can be available to represent defendants as necessary. We are also keen to explore other options to mitigate the potential impact on defendants in such circumstances. We will be monitoring the impact of reforms and the sustainability of the scheme.”[3]

 

6.14                        As set out above, In an email dated 2 April 2014, Ms Bennett of PDS confirmed the number of PDS advocates who were or would be available and that by the end of July 2014 there would be a total of 6 QCs, 10 Senior Higher Court Advocates, 2 Junior Higher Court Advocates  [para 52 ruling].

 

6.15                        There is no evidence that the Lord Chancellor reduced the fees in VHCC regimes as an act of bad faith. Nor has the lawfulness of the decision to reduce the VHCC fees been challenged. The Lord Chancellor produced consultation papers on the necessity to reduce expenditure throughout the criminal justice system in the current economic circumstances which included reduction in these cases about which the costs are said to be disproportionately high. In particular, the reductions were not introduced to deprive these (or any) defendants of representation. The Ministry of Justice was willing to and did pay substantial sums of money to assist these defendants. Accordingly, there was and could not be any suggestion of bad faith by the State to disadvantage the defendants such as to render it unfair to try these defendants.

 

6.16                        Once it became known that advocates no longer acted, the State (in the form of the Ministry of Justice) acted promptly. The original announcement of reduction of fees was April 2013. Advocates were originally instructed by Summer 2013. The fact of reduction of fees was confirmed in September 2013. When it became clear in late November (some seven months after charge and instruction of original advocates) that the impact of the fee reduction led to advocates withdrawing, the State promptly began a process of recruiting advocates to the Public Defender Service as an additional method of providing suitable representation. The advertisement for recruitment was placed in January 2014 and appointments were made and would be taken up between April and July 2014.

 

6.17                        There has therefore been no misconduct or improper conduct by the State as would justify staying the indictments permanently.

 

7.         FOURTH GROUND OF APPEAL: THE JUDGE MISDIRECTED HIMSELF TO THE EFFECT THAT AN ADJOURNMENT WOULD ALLOW THE STATE TO BENEFIT FROM ITS OWN FAILURE:-

 

7.1       It was neither fair nor necessary to stay this prosecution brought by the FCA to uphold the public interest in detecting and punishing financial crime. The prosecuting agency is the FCA, not the Crown. Paragraph 16 of Schedule 1ZA of the Financial Services and Markets Act 2000 is entitled ‘Status’ and states:

16 In relation to any of its functions —

(a) the FCA is not to be regarded as acting on behalf of the Crown, and

(b) its members, officers and staff are not to be regarded as Crown servants.

7.2    The judge ruled that as the FCA was accountable to HM Treasury, the FCA was “an arm of the State” and accordingly that the FCA as part of the State should not “be entitled to benefit from its own failure by being granted an adjournment” (Ruling para. 79(b)). The FCA is a private company performing a public function. It is funded by the Financial Services industry and is operationally independent of Ministers. The FCA has no responsibility for defence Legal Aid policy, which is a matter for the Ministry of Justice, and its Ministers who are accountable to Parliament in respect of their political decisions and the Administrative Court if they act unlawfully. In these circumstances, the FCA is not benefitting from its own failure by seeking an adjournment. Indeed, the judge does not identify what, if anything, the FCA should have done differently.

 

 8.        FIFTH GROUND OF APPEAL: THE BALANCING ACT MILITATED IN FAVOUR OF AN ADJOURNMENT:-

 

8.1       The allegations against the defendants are set out in the Case Summary and are adequately summarised at Ruling para 2. The fraudulent conduct alleged in the indictments took place over many years. Hundreds of investors were approached. Many lost substantial sums of money with significant effect upon their lives. The FCA had brought civil proceedings more than once, to shut down the offending companies. The result was that the defendants simply carried on under the guise of another company. It was a persistent fraud that, in part, targeted people who were vulnerable and, once found, repeatedly preyed upon.  There is considerable public interest in having the defendants prosecuted. Indeed, civil proceedings having failed to achieve their purpose, only criminal proceedings are adequate to protect the public interest.

 

8.2       Following the fact of stay, the FCA will bear the cost of the prosecution and will not be able to obtain a criminal confiscation order. Further, the FCA does not have powers to seek civil recovery orders (although they are available to the National Crime Agency) and, in any event, there is a question as to the extent of available assets.

 

 

9.         CONCLUSION

 

9.1              The only circumstances in which it would be appropriate to grant a permanent stay in this case is if there was no prospect of the accused securing effective representation. In this case there was and the judge erred in his finding.

 



[1] Section 74(1) CJA defines a ruling for the purposes of this legislation as including: “a decision, determination, direction, finding, notice, order, refusal, rejection or requirement.” This ruling does include a decision to stay as happened in the case of R v Clarke

[2] Regulation 18 deals with criminal proceedings other than those before a magistrates’ court and, in summary, provides three criteria that might allow enhancement for representation by a Queens Counsel and/ or more than one advocate: Exceptional –  the case for the assisted person is exceptional compared with the generality of cases involving similar offences, Counsel – the prosecution have instructed a Queen’s Counsel or Senior Treasury Counsel, Prosecution – the prosecution have either: (a)            two or more advocates; (b)                more than 80 witnesses; or (c)           more than 1,000 pages prosecution evidence [and, added to the test, as of 2 December 2013, ‘and the individual will or will likely to be prejudiced if they too are not represented by two or more advocates’]. [The regulation is further amended by the requirement for the determination to be approved by the presiding judge of the circuit or a judge nominated to give approval].

 

[3] Hansard 10 March 2014 Column 115 answer from the Under Secretary of State  at the Ministry of Justice

4 thoughts on “Operation Cotton Appeal: the FCA skeleton argument”

  1. The FCA argument seems to ignore the 9 months already allowed to the government to fund adequate representation. The government had already chosen to reduce what they are prepared to pay for this demanding work drastically, before implementing a further 30% cut. What made them think that anyone self employed, qualified to that level, would ever want to do that work for the reduced sums being offered.? If Man United advertised for a new manager at 30 pounds an hour , how many qualified managers would apply? It is no use pretending it is the fault of premiership quality managers that they won’t work for 30 pounds an hour because they are in some way being bloody minded. The reason they wont do that job is because it is not worth it for that amount of money. Furthermore they don’t have to. You could have a better quality of life working in the lower leagues or being a gardener or a plumber. Stop blaming self employed people government; youve got to offer a fair price. Cut backs are one thing, but these rates will only attract desperate people who wont do a proper job, or if you are very lucky rich people who can work for charity and who enjoy working long hours and weekends. Of course, Judge Leonard did not take that into account. Maybe there are rich people who would do it for nothing. Let the Defendants wait another 9 months for their trial, we might find some advocates yet…..

  2. Looking on a more macro side this imbalance will always continue/exist whilst more and more new laws are created. The average man on the street is open to police investigations and potential prosecution on so many levels as the laws are now so vulnerable to interpretation and the police driven by statistics and the press, many cases are being created for a potential result rather than stopping a crime or criminal. As a complete laymen can it not be made simple. Equal budget for defendant and applicant. Goes back to the fair and equal justice idea? If you want to spend $2m prosecuting I should have $2m budget to defend? You spend $200.00 I get $200.00? I’m sure Nigel Evans would agree.

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