Operation Cotton Appeal: the Respondents’ (ie, Defendants’) skeleton argument

This document is drafted in the form of a response to the
Second Application for Permission to Appeal dated 5
May 2014
(Paragraph numbers referred to below are those in the Applicant’s skeleton argument)



1. In the interest of non-proliferation I have not served the skeleton which I had prepared
in response to the first set of grounds.

2. Paragraph 1.2 of the Applicant’s skeleton clearly sets out in terms s.67 CJA 2003. It is
less clear how the new set of grounds fall within those terms.


Respondents’ position in summary

3. The Trial Judge rightly decided that:

(i) The Respondents could not have a fair trial on their trial date;

(ii) In the absence of a remedy a stay was appropriate on that basis;

(iii) The Applicant’s proposed remedy – an adjournment to January 2015 – was no
remedy because on the evidence there was no realistic/reasonable prospect that
on that date they could have a fair trial;

(iv) In the absence of a remedy a stay was appropriate on that basis;

(v) The Applicant’s tentatively presented alternative remedy – an adjournment for
an indefinite period until such time as adequate representation was in place –
was also no remedy as it too was speculative and there was no basis on which
the Trial Judge could find that the availability of advocates would change;

(vi) In the absence of a remedy a stay was appropriate on that basis;

(vii) In exercising his discretion not to grant an adjournment the Trial Judge also
took into account the following important matters: the knock-on effect on
other trials, the waste of court resources and the express terms of the Criminal
Procedure Rules, all of which were relevant factors pointing firmly against an

4. In short, the questions and answers were: Can there be a fair trial now? No. Can there
be a fair trial in January 2015? No. Should I grant an indefinite adjournment until
such time as a fair trial might become available? No. What procedurally does that
mean? A stay.

5. The Trial Judge did not err in law and his findings of fact were, at the very least,
reasonable on the basis of the evidence before him.

Applicant’s introduction

6. I set out below our response to the various submissions made by the Applicant in so
far as they are in dispute: 3

7. Paragraph 1.4 – the dispute between the self-employed bar and the MOJ does not
appear to the Respondents to be ‘fluid’.

8. Paragraph 1.5 – the issues in this appeal are those set out in s.67 CJA 2003. So far as
the contents of this paragraph are concerned, it is accepted that (a) a fair trial ‘may’,
not ‘would’, be possible in the future; (b) the ongoing dispute ‘may’, not ‘may well’,
be resolved; (c) it is in the public interest, but not ‘overwhelmingly’ so (in the sense
that this interest necessarily overrides all others), that cases of this kind be tried.

9. Paragraph 1.7 – there was NOT evidence that the PDS did or would by the Autumn
have sufficient competent advocates available (see submissions re Ground 1 below).

10. Paragraph 1.8 – the issues in this appeal are those set out in s.67 CJA 2003.

11. Paragraph 1.9 – (ii) it is not accepted that there was a remedy (see paragraph 3
above); (iii) ‘a future trial’ is not the appropriate test; (iv) see submissions re Ground
3 below; (v) the public interest that the FCA advances is frustrated, not by a dispute
between the self-employed bar and the MOJ, but by the failure of the state to provide
adequate representation.

12. Paragraph 2.1 – (iii) the reason for the absence of adequate representation was a
combination of the refusal to act by the self-employed bar AND the failure of the state
to produce an alternative in time; (vi) the ‘foreseeable’ future is no part of the test.
January 2025 is foreseeable but not viable for a trial in this case. The Trial Judge
correctly identified the test in paragraph 78 of his ruling.

13. Paragraphs 3.5 et seq. – the essential legal principles of abuse are not in dispute.
Indeed they were expressly taken into account, accepted and applied by the Trial
Judge. The reasonable time guarantee is not really the issue in this appeal and the
authorities cited in Applicant’s skeleton argument of 5th
May were not cited in the
court below. The real issues below were those set out in paragraph 3 above. The real
issues for this court involves an application of the determination of those issues to the
tests set out in s.67 CJA 2003.

Ground 1 – ‘Adjournment was the appropriate and proportionate remedy’

14. I set out below our response to the various submissions made by the Applicant in so
far as they are in dispute:

15. Paragraph 4.2: There was no real evidence that any independent barrister was willing
to work on the new terms. The Trial Judge’s finding of fact was reasonable.

16. Paragraph 4.3: The true ‘availability’ of the PDS advocates was NOT ‘unchallenged’.
The true position was as follows:

(a) By the end of July 2014 the PDS would, having “successfully” completed its
recruitment process, be made up of 6 Queen’s Counsel, 10 senior Higher Court
Advocates, 2 junior Higher Court Advocates and administrative staff;

(b) One QC was already engaged to conduct a 14-week trial in September 2014 and
was therefore unavailable for a trial in January 2015 and one QC had recently
suffered a heart attack and although intending to return to work, Ms Clare
Toogood was unable to say how quickly he would become available for work;

(c) Accordingly, by the end of July there would/will be 4 Queen’s Counsel and 12
junior barristers / Higher Courts Advocates available at the PDS to deal with the
26 legally aided defendants whose trials are due to be held on or before 5th January 2015;

17. The position of the Applicant concerning the relationship between the ‘other cases’
and the number of PDS advocates is completely unreal. First, rule 1.1(g)(iv) of
Criminal Procedure Rules requires other cases to be taken into account. Second, the
Trial Judge needed to look forward. If this trial was adjourned to January 2015 (the
proposal) would there be enough advocates to represent these defendants? No. Why
not? Because the solicitors for these Respondents are bound to try to obtain the best
advocate available. In the current circumstances that means waiting as long as it is
professionally possible to do (in reality October 2014) in the hope that something will
happen, however unlikely that may be, which means the pool of available advocates
becomes enlarged. By June 2014 those solicitors in the trials listed for September
2014 will have been forced to use the available pool of advocates. Thus in October
2014 there will be none available. The Trial Judge did not “know” that to be the
position, but that was what the evidence drove him to conclude. That conclusion was
reasonable. It has thus got nothing to do with interfering with other judges’ trials. It is
simply a practical application of the mathematics for the purposes of this case.

18. Paragraph 4.9: Far from being ‘unsupported by any reasoning or evidential basis’, the
Trial Judge’s conclusion that ‘there is no realistic prospect of that the Bar will accept
contracts in VHCC cases on the present terms’ is the only reasonable conclusion from
the evidence and thereby hardly needs reasoning. As is clear from the transcripts of
the argument on 28th April, this submission was and remains a desperate clutch at the
last remaining straw. The Trial Judge can only make findings on the basis of the
evidence before him at the time. As at 28th April, indeed as at now, the Trial Judge’s
finding remains good.


Ground 2 – ‘There was no bar to PDS advocates acting in cases of conflict’

19. The Trial Judge made it quite clear that this was something which ‘he should place
little value on’. He, rightly, simply took notice of the fact, for what it was worth (said
to be ‘little’), that the evidence before him was that a solicitor was likely to advise a
client in a conflict position to be represented outside the PDS.

20. Neither the Trial Judge nor the Respondents suggested that the absence of a non-PDS
resource rendered the trial unfair.


Ground 3 – ‘It was not necessary to stay to protect the integrity of the criminal justice

21. As it did in its first set of Grounds, the Applicant, desperately scratching around for an
error of law, seeks to characterise the Trial Judge’s reasoning for not granting an
adjournment as a finding of an ‘unfair to try him’ abuse.

22. That was not the Trial Judge’s finding. The Applicant’s use of the word, “Effectively,”
in paragraph 6.2 gives the game away. The word ‘abuse’ is not used.

23. Paragraph 84 needs to be read in its context. It comes between paragraph 83, in which
the Trial Judge deals with the care to be taken before granting an adjournment, and
paragraph 85, which deals with the other reasons why an adjournment should not be

24. In paragraph 84 the Trial Judge found, wholly reasonably, that (a) the state had failed
to provide the necessary resources to permit a fair trial and (b) that to allow the state
an indefinite adjournment to seek to put that right, on the very day the trial was listed
to start, amounted to a violation of the process of the court. He then went on in
paragraph 85 to expand upon why it amounted to a violation.

25. It has got nothing to do with ‘serious executive misconduct’ or ‘acts of bad faith’. The
simple facts are that Lord Chancellor had made a proposal (April 2013) – an
unfocussed, non-specific, across the board cut of 30% of every fee for this work. He
was told what would happen if he implemented it. He made the proposal again
(September 2013). He was told again what would happen if he implemented it. He did
implement it and what he was told would happen did happen. The result was that the
executive action, in whatever faith it was conducted, meant that these defendants were
foreseeably, involuntarily unrepresented and that for the state, in those circumstances,
to seek an adjournment to avoid the consequence of that, did, as a matter of fact, do
violence to the process of the crown court, which strives every day, despite ever more
squeezed budgets, to provide an efficient, expeditious, working, just, fair system of
criminal justice. The problem was, and is, of course, soluble overnight by not
imposing / reversing the 30% cut.

26. Thus, seen through a wider lens, this stay was indeed precisely what was necessary to
protect the integrity of the criminal justice system.

27. Had the Respondents chosen to argue bad faith, they would perhaps have started with
the apparently deliberately misleading statements put out by the Ministry of Justice in
advance of and subsequent to the hearing on 28th
April concerning the fees which an
advocate would receive for conducting this case at the reduced rates, which were an
over estimate of something between 30% and 50%.


Ground 4 – ‘The Judge misdirected himself to the effect that an adjournment would allow
the state to benefit from its own failure’

28. Paragraph 16 of schedule 1ZA to schedule 3 of the Financial Services Act 2012 was
not drawn to the Trial Judge’s attention either prior to or during the course of
argument and it is not an answer to the point that the Trial Judge had in mind: The
Financial Conduct Authority (“the FCA”), whatever is the precise definition of its
existence, is one of the bodies which the state has charged with the prosecution of
offences legislated for by the state. These are just such offences and in prosecuting
them the FCA is fulfilling the role legislated for it by the state in the Financial
Services Act 2012. It is perhaps of note that the front sheet of this Application, drafted
by the Applicant, is entitled, “R v Crawley etc.”, where ‘R’ is ‘Regina’, is the Crown,
is the state.

29. It is submitted that it is not inaccurate broadly to describe the FCA as an “arm of the
state”, and even if it is considered so to be, it is certainly no basis for undermining the
decision to stay. The point is simple and well made: broadly speaking, the state
through a number of different agencies prosecutes crime. It also, through another,
different agency, has to provide adequate representation to indigent defendants
charged with serious crime. Seen in that context an adjournment does allow the state
to benefit from its own failure.


Ground 5 – ‘The balancing act militated in favour of an adjournment’

30. The Trial Judge applied the correct tests and made reasonable findings based on the


31. We return to the questions raised by s.67 of the CJA 2003 which govern this appeal:
(a) Was the ruling wrong in law? No; (b) Did the ruling involve an error of law or
principle? No; (c) Was the ruling a ruling that it was not reasonable for the judge to
have made? No.

32. It is respectfully submitted that, for the reasons set out above, this appeal should be

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