Questions and Answers on the Public Defender Service

Here were my questions this week to the Ministry of Justice press office on the Public Defender Service, with their answers.  I will be using some of this material for a forthcoming post at FT.com – – but I thought it would be useful to set the questions and answers out in the public domain so as to inform discussions that may follow the handing down of the Operation Cotton appeal judgment.

 

Question:

What has been the annual budget for PDS each year since its inception? What is the forecast budget for the PDS in this and next year?

Answer:

The PDS was established in 2001. The audited expenditure details are as follows:

 year

£m

2001/02

2.58

2002/03

3.58

2003/04

3.94

2004/05

4.26

2005/06

4.39

2006/07

4.59

2007/08

4.03

2008/09

           3.02

2009/10

           3.12

2010/11

           2.51

2011/12

           1.95

2012/13

           1.95

The PDS out-turn for 2013/14 has not yet been audited and is therefore subject to change, however, the current estimated out-turn is £2.28m.

 

Question:

If the PDS does VHCC work, how can it possibly do any non-VHCC work?  When was it first proposed that the PDS be devoted to VHCC work?

Answer:

The establishment of the PDS Advocacy Unit further strengthen its capability and allows it to provide a range of criminal defence services.

Where a member of the PDS was instructed on a VHCC clearly it would depend on the individual case as to what their workload would be but, as we have seen on numerous occasions, there are invariably ‘cycles’ to cases which include periods when there is time for other work. We would expect that to be most likely during the preparation of a case in this type of work.

 

Question:

I understand the PDS is there (in part) for “market failure” – what does the MoJ mean by “market failure”? (see page 10)  http://www.justice.gov.uk/downloads/publications/corporate-reports/legal-aid-agency/laa-business-plan-2013-14.pdf )

Answer:

The PDS is available to provide a service in parts of the criminal legal aid market where, for whatever reason, clients are unable to access advice and representation in the Police Station, Magistrates Court and Crown Court.

 

Question:

In the MoJ skeleton argument for the Operation Cotton appeal, it is stated: “It is presently intended to secure the necessary number of advocates for the PDS to cover the affected cases. Twenty-one have already been appointed. The Government is ready to place advertisements as soon as the weekend and head-hunters have been retained on a contingency basis to secure senior Counsel.” Can you please provide as much detail as possible on this statement.

Answer:

There is nothing to add to the statement which very clearly sets out our intention.

 

Question:

How much has MoJ spent on the “head-hunters” re above? How much does it intend to spend? What does “contingency basis” mean?

Answer:

It’s too early to say as costs will depend on how we recruit additional capacity. As the statement above clearly says – we stand ready to place advertisements should that be needed.

 

Question:

The MoJ skeleton argument states: “The Lord Chancellor regards this as an emergency measure to address the needs of the interests of justice with the current VHCCs.” – why is this an “emergency” measure when it was clear from last year that the VHCCs were at risk?

See http://blogs.ft.com/david-allen-green/2014/05/12/how-a-policy-failure-now-means-a-number-of-uk-complex-fraud-cases-may-collapse/

Answer:

Legal aid remains available for all VHCCs – if a QC picked up a typical VHCC they could expect to receive around £100,000. It remains open to the Bar to take these cases and there are also PDS lawyers available. Clearly the Government will take the necessary steps to ensure representation on cases that would otherwise be disrupted.

 

Question:

Is the MoJ aware of any other government department which has ever told the High Court or Court of Appeal that it was in a state of “emergency”?

Answer:

We do not hold records of other Government department’s legal arguments.

 

Question:

Does the MoJ dispute the figures set out in https://dl.dropboxusercontent.com/u/77869779/PDS%20Facts.pdf as to the relative costs of the PDS and independent Bar?  If the MoJ disputes these figures, can it explain the basis of the dispute?

Answer:

The figures quoted do not compare like with like. It should also be noted that the calculations mentioned assume a self-employed barrister will only take on one case a year and only work on legal aid, when that may not necessarily be the reality.

 

Questions:

What is the MoJ response to the PDS being described as a “false economy” See http://www.lawgazette.co.uk/analysis/comment-and-opinion/pds-is-a-false-economy/5041282.article ?

What is the MoJ response to the PDS being described as a “total waste of public money” See http://www.lawgazette.co.uk/practice/call-to-review-public-defender-service/5039489.article

Answer:

Our over-riding priority is to ensure that defendants have a fair trial and the justice system continues to function properly. Barristers are refusing to work on Very High Cost Cases because they do not agree with the legal aid fees being offered. Even at the new rates – a QC could expect to pick up £100,000 for a typical Very High Cost Case.

In line with our effort to try and target the highest fee reductions towards the highest earners we have cut fees in Very High Cost cases the most. That is because these are a small number of cases that cost a disproportionate amount of taxpayers’ money – for example just one cost more than £8.5 million purely in legal aid fees.

 

Question:

How many of the PDS advocates are VHCC accredited?

Answer:

21 advocates have signed contracts with the PDS Advocacy Unit. Of these, 15 are VHCC accredited and the other 6 are in the process of gaining VHCC accreditation.

 

Question:

When was it first proposed that the PDS be devoted to VHCC work? I can find no mention of the possibility before 2013 – is this correct?

Answer:

They will undertake a range of criminal litigation and advocacy.

 

Question:

It appears that all be barristers being appointed are to do VHCC work.  Will they be expected to do any non-VHCC work?

Answer:

See above.

 

Question:

What do you mean by “disproportionate amount of taxpayers’ money” as opposed to a high proportion?  Does the MoJ think anything with a high proportion is disproportionate?

Answer:

VHCCS represent less than 1% of all Crown Court cases but were costing 10% of the crown court legal aid budget. As stated on many occasions, and discussed in numerous meetings with the professions in the past year, we are trying to target the highest reductions at those who receive the most in fee income from legal aid.

 

Question:

Will the PDS continue to not have a London office?

Answer:

As we made clear in our skeleton, we will expand the PDS as necessary to ensure availability of advocacy. We will make decisions as to the resources and set up as appropriate.

 

 

Operation Cotton Appeal: the MoJ skeleton argument

(Apologies for the lack of paragraph numbers, will be inserted later)

.

The Lord Chancellor – Proposed Intervenor

 

SUBMISSIONS OF THE LORD CHANCELLOR FOR PERMISSION TO INTERVENE IN THE PROSECUTOR’S APPEAL AGAINST THE TERMINATING RULING BY HH JUDGE LEONARD QC OF 1ST MAY 2014

 

By his ruling of 1st May 2014, HH Judge Leonard stayed the prosecution of all Defendants in this case and summarized his reasons on two main grounds:-

 

a.    That he was “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 that court.”
 
b.    That “even if I was 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”.
 
 
 
The position of the Lord Chancellor and the purpose of his proposed intervention

The Lord Chancellor and the MOJ are, of course, committed to ensuring that all criminal trials are conducted fairly in accordance with their obligations under the Courts Act 2003,  Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and under Article 6 of the ECHR. They will, therefore, ensure that criminal defence advocates of suitable qualification will be available within a reasonable time to deal with all Very High Cost cases which are pending, including, if applicable, the instant case. The Lord Chancellor is entirely supportive of the independent, self-employed Bar and has made strenuous efforts to secure their continuing co-operation in providing top quality representation for Defendants and thereby ensuring fair trials in these cases.

The Lord Chancellor adopts a neutral position in relation to the appeal in this particular case. The ultimate merits of this appeal are a matter for the court to determine as between prosecution and defence and not a matter for the Ministry of Justice. The purpose of this intervention is to assist the court in the following ways:-
 
To assure the Court that, in the event the appeal is allowed, the MoJ will ensure that suitably qualified defence advocates will be available within a reasonable time to represent the Defendants.
 
To inform the Court of the urgent steps that the MoJ has taken and is taking to ensure that such advocates will be available.
 
To address any implication to the effect that the absence of representation by the self-employed Bar was attributable to the fault or failure of the Lord Chancellor.
 
 
The relevant Legal Aid Regime
 
The applicable legal aid regime for this case is set out in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”).   The Lord Chancellor is required to secure that aid is available in accordance with Part 1 (section 1) of LASPO.

Payment of remuneration to those who provide services is governed in part by regulations made under s 2. LASPO and the Criminal Legal Aid (Remuneration) Regulations 2013 (SI 2013/435).  These Regulations contain the concept of a “Very High Cost Case” which is defined as follows. A “Very High Cost Case” means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds that:-

in relation to fees claimed by litigators:-

i.    if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 40 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act; or

ii.    if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last no fewer than 25 and no more than 40 days and the Director considers that there are circumstances which make it suitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act;

in relation to fees claimed by advocates, if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 60 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act.

 

The reductions in Legal Aid rates and the understanding reached between the MoJ and the self employed Bar.

 From December 2013, the rates paid to advocates in new very high cost cases (VHCCs) and those existing cases with trial dates after 31 March 2014 were reduced by 30%. These changes followed a process of public consultation.

These changes were controversial and there followed a period when the criminal Bar appeared to be taking concerted action in response to these reductions. This included a refusal by members of the self-employed Bar to accept or to retain briefs in VHCCs affected by the reductions and days of action.

As a result of negotiations between the MoJ and the Bar, a “deal” was agreed between the leadership of the Bar and the MoJ whereby the fee reductions in AGFS cases were deferred to summer 2015. In response, the leaders of the criminal Bar gave a commitment that they would cease disruptive action and that they would agree that there was no objection in principle to their members accepting the reduced rates for VHCC’s. The Chairman of the Criminal Bar Association in a public statement made on 27th March 2014 stated, “consequently the CBA has decided to suspend its current action including the No Returns policy to allow constructive engagement with the government to continue and the restoration of normal working practices within the CJS” (our emphasis).

 

The non-acceptance of instructions in this case by the self-employed Bar.

As a result of this “deal” the MoJ reasonably expected that the self- employed Bar would continue to provide representation in this and other VHCC cases. However, contrary to these expectations no-one at the self-employed Bar has, so far, accepted instructions in this case.
 
The MOJ’s commitment to ensure representation in all pending VHCC’s.

In response to the fact that the self-employed Bar has failed  to provide representation, the MoJ is taking swift and determined action to ensure that suitable advocates are available to the defence. The Lord Chancellor, as always, would welcome the maximum possible participation of the self-employed Bar in this regard. The Government has decided to implement any necessary increase of the PDS to ensure representation in the VHCCs in which legally aided defendants are currently unrepresented. It is presently intended to secure the necessary number of advocates for the PDS to cover the affected cases. Twenty two have already been appointed. The Government is ready to place advertisements as soon as the weekend and head-hunters have been retained on a contingency basis to secure senior Counsel.

The Government intends to be flexible in the means it adopts in sourcing  the additional advocates to ensure maximum expedition and efficiency.  Some will be employed by the PDS, and the Government wishes to consider options for obtaining advocacy services through sub-contracting from other providers.

The Lord Chancellor regards this as an emergency measure to address the needs of the interests of justice with the current VHCCs. It remains open for the self-employed bar to accept instructions in this and the other pending VHCC’s, but if the self-employed Bar continue to refuse the briefs, the government will ensure that the PDS is provided with the resources necessary to represent the Defendants.  The levels of staffing and resourcing provided to the PDS will be kept under review and will depend upon the response of the self-employed Bar. The Government is committed to ensuring the continued availability of effective representation across the criminal justice system.

 

The new ability of the PDS to represent multiple Defendants whose  interests conflict.

Until early this year, the PDS Code of Conduct for advocates prevented one PDS advocate from representing a defendant in a criminal trial where another defendant in that trial was also represented by the PDS and the interests of the two defendants conflicted.  This reflected professional standards for solicitors and reflected the fact that, until recently, the majority of the lawyers employed by the PDS were solicitors.

The Code was changed with effect from earlier this year to allow PDS advocates to act for multiple defendants in the same trial notwithstanding conflicting interests. The new Code was laid before by Parliament in March this year.

A protocol has been laid down to ensure that confidential information and instructions given to PDS advocates representing conflicting Defendants are not held by the PDS  and cannot be accessed by the PDS. There is no reason to suppose PDS advocates are not just as capable of managing conflicts as members of the self-employed bar who share the same chambers. Therefore the concerns expressed by the learned Judge in relation to conflicts within the PDS are not well founded.

At paragraphs 67 and 68 of his judgment the learned judge considered paragraph 7.3 of the amended PDS Code as requiring him to have in mind whether any legal representatives outside the PDS would be available in the event of a conflict within the PDS. It is submitted that, notwithstanding that the new PDS Code may require a PDS advocate to disclose the existence of a conflict within the PDS to a client and explain that the client is free to be represented by an outside advocate, the Code does not confer a right upon a client to refuse a suitable PDS advocate where an outside advocate is not reasonably available and where enhanced confidentiality provisions within the PDS will be adequate to protect his interests.

 

The learned judge’s  finding that the State would “benefit from its own failure…. to provide the necessary resources to permit a fair trial…. if an adjournment were granted” [see paras 79(b) and 84 of the Judgment]

It is submitted that this ruling by the learned judge is misplaced for the following reasons:-

The relevant question for the learned judge to consider  was the question he directed himself to consider at paragraph 77 of his judgment, namely, whether there was a realistic prospect of securing a fair trial in January or September 2015.  Whether or not the present unavailability of representation from the self-employed Bar could be characterized as the “failure” of the state was an irrelevant factor to the determination of that question.

In any event, even if had been a relevant question, it was not appropriate for the learned judge, on the limited evidence before him and without hearing evidence or submissions from the Lord Chancellor, to conclude that the failure of the self-employed Bar to provide representation was attributable to  the state and to base his decision upon such a finding of fact.

The learned judge, in so finding, was assuming the authority to make a determination as to the merits of a dispute between the Bar and the MoJ. He did not have the materials before him fairly to do so, even if entering into such an inquiry had been an appropriate or relevant exercise, which it was not. He implicitly accepted it was not a relevant exercise at paragraph 25 of his judgment.

It is submitted that the Lord Chancellor’s policy decisions as to the appropriate allocation of scarce resources for the funding of criminal legal aid, constrained as he is by the government’s economic strategy in a time of austerity, are matters of political value-judgment. Such issues are to be determined on their political merits by the executive branch, subject to the democratic oversight of Parliament or, in the case of unlawfulness, impropriety or irrationality, subject to judicial review by the courts.

The evidence in this case may well suggest that members of the self-employed Bar are tacitly expressing their disapproval of the MoJ’s policy   despite the assurances of the leaders of the Bar that there is no longer any objection to such cases being taken by them. If, as a result, the Defendants are left without representation from the self-employed Bar, the question of whether that is the fault of the Bar or the fault of Lord Chancellor (or indeed anyone’s fault) is a purely political question for the executive and for Parliament and for the electorate and not a judicial question for the determination of the learned judge.

In paragraph 84 of his judgment the learned judge held that it would be a “violation of the process of the court” merely to allow an adjournment to enable the state to put right its own “failure” to provide resources necessary  to permit a fair trial. By so ruling the learned judge might be understood to be finding implicitly that there had been some unlawful conduct, bad faith or manipulation on the part of the Lord Chancellor.  There was no evidence to support such a finding nor could there be any justification or warrant for such an implied ruling. The Court is respectfully invited to clarify the position to ensure there is no such misunderstanding

 

Conclusions

It is submitted 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.
 
There is no justification for any implicit finding that the Lord Chancellor or the MoJ have acted unlawfully, improperly or wrongfully in their implementation of cost savings in relation to VHCC’s nor for any implicit judicial finding that they are in some way legally to blame for the self-employed Bar’s refusal to accept such instructions nor for any consequent conclusion that they have “violated” the procedure of the Crown Court.
 
Therefore, the Court can safely proceed upon the assumption that a fair trial of this case and the other pending VHCC’s will not be precluded by any lack of available defence advocates.

 

 

 

 

 

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

________________________________________
RESPONDENTS’ 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)
__________________________________________

 

Preamble

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
adjournment.

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
system’

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
granted.

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
evidence.

Conclusion

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
dismissed.

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

The Operation Cotton Appeal – a handy guide

 

Today the Court of Appeal in London will hear the appeal in the “Operation Cotton” case.

The case’s proper name is R v Crawley and others, but is known as “Operation Cotton” (or #OpCotton on Twitter) after the Financial  Conduct Authority (FCA) exercise which led to the original prosecutions being brought.

The appeal is by the prosecutors (the FCA) of the order for a stay (that is, termination) of the case by HHJ Leonard QC made at Southwark Crown Court on 1 May 2014 after a hearing on 28 April 2014.  (The ruling of the judge is short and readable and should be read by anyone following the case.)

Strictly speaking, the Court of Appeal also has to give permission for the prosecution to appeal before the appeal can be heard; but it is likely that there will be a “rolled up” hearing on both the permission and substantive points.

 

The Court of Appeal

The bench hearing the appeal will consist of Sir Brian Leveson (the president of the Queen’s Bench Division) with Lords Justices Treacy and Davis.   This is quite a high-powered bench for hearing such an appeal.

(As permission has been given for the appeal to be televised, this may mean the (welcome) return of Sir Brian to our screens a couple of years after his inquiry into the practices of the media.)

 

The main issues

The central question before the Court of Appeal is whether the court below should have granted an adjournment rather than stayed the case altogether.

The reason for there  being either an adjournment or a stay is that it has so far proved impossible with current Ministry of Justice legal aid policy to find defence barristers for the eventual trial.  As it is a complex fraud case, specialist counsel is required; and if there is no defence counsel, there can be no trial.

In turn, the reason for there being no defence counsel available is that no qualified and competent barristers are available at the new rates imposed for such work by the Ministry of Justice (MoJ).

So in essence: does current government legal aid policy mean that many prosecutions for complex fraud cannot now go ahead?

 

The parties

The FCA (the “appellants”) will contend that an adjournment was a more appropriate and proportionate course of action.   This will allow more time for defence counsel to be found. The prosecutions can then proceed.

The defendants (or “respondents” for the sake of this appeal) will submit that the judge was correct in ordering a stay.  This is because there was (and is) no realistic prospect of counsel being found and that adjournments should not be granted on a speculative basis.  Leading for the defendants happens to be Alex Cameron QC (the Prime Minister’s brother) acting on a pro bono basis.

The MoJ is also seeking to make “representations”.  The MoJ has not said what these representations will be.  The MoJ has somehow found public money to instruct a top commercial fraud QC (presumably to make submissions that top commercial fraud QCs are not required in these cases).

(Curiously, the MoJ has also instructed a junior barrister from the fledgling and under-resourced “Public Defender Service” (PDS): this seems to raise, in principle, an issue of conflict – as the interests of the defendants in this appeal is in the stay being upheld, which is surely not in the interest of the MoJ.)

 

The implications

Whilst a stay in this case will be a disaster for the FCA (and the MoJ) – as alleged fraudsters will walk free without trial because of government policy – it is the possible knock-on effect for several other upcoming fraud cases which concerns the FCA and MoJ most.

The appeal in this case will (technically) only bind the parties concerned.  But the relevant facts will be similar with other legally-aided defendants in the complex fraud cases to come.

In essence: if the MoJ funding policy for legal aid in complex fraud cases leads to a stay in this case, then it is likely there will be stays in the future cases as well.

And, if so, much of the prosecution work of the FCA (established to deal with fraud in the City after the crash) could effectively grind to a halt.  This may include the huge “Operation Tabernula” case.

So there is a lot is at stake.

The FCA want these prosecutions to proceed (so that it can do its job); and the MoJ wants these prosecutions to proceed (so that it will not be blamed for undermining City regulation).

 

Background reading

The ruling in Operation Cotton (1 May 2014)

The documents setting out the MoJ’s current legal aid policy: the April 2013 MoJ consultation (a botched document), the September 2013 MoJ consultation (an attempt to deal with the original botched document) and the MoJ “risk assessment” (a breathtaking complacent document).

The warnings in consultation responses from the experts – Criminal Bar Association, the Fraud Lawyers Association, and the government’s own Old Bailey prosecutors, the Treasury Counsel to the Crown at the Central Criminal Court (the latter is particularly elegant and scathing).

Two reports from Catherine Baksi at the Law Society Gazette warning of the impact of the MoJ policy on the Operation Cotton prosecution – November 2013 and January 2014. (Though all her stuff on this is excellent.)

Commentaries on the first hearing: Adam Wagner at New Statesman, Dan Bunting, Richard Moorhead, Catherine Baksi, and by me last week at FT.com

The implications of the case in terms of other complex fraud trials: Nick Cohen at Observer (excellent) and by me yesterday at FT.com .

(My pieces at FT.com are free to access but registration required.)

 

 

 

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A visit to the Old Bailey

I popped in to the Old Bailey today to watch the “hacking trial”.  Here are some quick impressions.

 

The venue – Court 12 – is big for a court room (about the size of a large Starbucks).  It was crammed with about one hundred people, including fourteen barristers in wigs and gowns.  

 

There were boxes and files on every surface, shoved hard against monitors and keyboards.  It was almost as if proceedings were suddenly taking place in the midst of an office move.  Criminal courts are not like this on the telly.

 

The pace of the hearing was slow.  The QC asking the questions was under-stated, as he peered over a pile of lever-arch folders in the direction of the witness box.  He could have been asking about the details of some plumbing problem.  There was no hint of drama; it was mundane and plodding.

 

But the most marked thing was the lack of air conditioning. One hundred people in a room, and it was genuinely hard to breathe in there.   I lasted about twenty minutes before going for fresh air.

 

One can only have immense respect for everyone having to concentrate all day for months on the evidence – judge, jurors, defendants, lawyers, and reporters.  It cannot be a wonderful experience whatever your reason to be in that court.

 

 

 

Two things to read on prisons and books

 

A couple of pieces which are worth reading in respect of the current prisons book controversy are this report at the Independent on the practical difficulties in obtaining and sharing books in prison and this superb and spot-on Telegraph column by Mary Riddell.

 

Both articles provide detailed and much-needed context for this issue.

 

(My own post at the FT on this policy of pure idiocy is here – free, but registration required.)

 

 

 

Back here – and the FT gig

I just realised I have not posted here for a while.  So here goes…

…since I last blogged here I have moved from the New Statesman to the Financial Times.  

I think this is a good move.

I loved working for the New Statesman – it was the magazine I used to read in the sixth-form college library which made me feel very grown-up.

And with the support of Jon Bernstein (the then deputy editor) I was able to do some fairly adventurous and consequential blogging – from Nightjack to Julian Assange’s extradition mythology.

Believe it or not I even won an award as a “mainstream blogger of the year”.  (I think it was the first thing I have “won” in my life!)

But my time at the New Statesman came to a natural end, and I also wanted to do lengthier pieces – essays, in a way – to be published as-and-when I got round to finishing them.

(I also am making actual progress with an e-book about a famous historical legal case. )

My blogging from 2009 to 2012/3 was at the time great fun to do – BCA v Singh, Twitterjoketrial, David Rose, Nightjack, Assange, and so on – but what I may do next will be a little different and less “investigative” or “campaigning” and more analytic and explanatory.

And so the FT is a good place for me.  I enjoy analysing and explaining, and I think I am often good at at it (though not as good as I would like to be).

There are plenty of others who want to debunk and campaign, and I am happy to leave them to it.

After a bit of a gap caused by a bout of bad health which prevented me from blogging for while, I today posted a detailed account of the recent prosecution of some men arrested for taking discarded food from a skip.  Please have a look – I hope you find it interesting.

Planned posts include scrutiny of the government’s  ‘good law’ initiative, a look at the state of the probation service, what the ‘Naked Rambler’ case tells us about the limits of the legal process, as well as a series of posts on public procurement and government contracts.  I will also keep on with the occasional analyses of cases in the news.

The FT blogs are free to access: but they are behind a registration wall.

That is a pity in that those who don’t want to register (or are not able to click through easily at the time they see the link) will not get to see the post.

All I can say in consolation is that it is worth registering as there is a lot of first-rate stuff to read at the FT.  But I am sorry if my main posts being behind a registration wall annoys or disappoints you.

Anyway, thanks for keeping an interest.

Nine hours in the life of David Miranda

Was the nine-hour detention of David Miranda lawful?

 

To answer this, let us start with what we know about the detention..

The official statement of the Metropolitan Police was as follows:

At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.

This provides official confirmation of three crucial facts.

First, that the duration of the detention was just under nine hours.

Second, that the man was not arrested in respect of – still less charged of – any criminal offence.  The man was allowed to fly on to his destination.

Third, that the detention was under schedule 7 to the Terrorism Act 2000.

 

Now, taking these three facts together a fuller picture begins to emerge.

 

The power to question

The use of schedule 7 of the 2000 Act is significant.  The schedule is set out here, and it provides at paragraph 2(1):

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(Schedule 7 has legal effect under section 53(1) of the 2000 Act.)

The paragraph 2(1) power is limited to a specified purpose, that of “determining”  whether a person falls within section 40(1)(b) of the 2000 Act.  Therefore, if that is not the purpose then the power to question is not being lawfully exercised.

Paragraph 2(4) goes on to provide that an examining officer may exercise the power  whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b).  This means that there does not actually need to be a reasonable suspicion.  However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.

 

The power to detain

A power to question is not the same as a power to detain.

And so paragraph 6(1)(b) provides a power to detain a person for the purpose of questioning.

However, paragraph 6(1)(b) does not provide a power to detain that person – unless they are being questioned to determine whether they fall within section 40(1)(b) of the 2000 Act.

Therefore, this is not a general power to detain, and it is conditional on the person (a) being questioned for (b) the specified purpose.

So if the person is being detained for any other purpose then the power to detain is not being lawfully exercised.

As long as the power to detain is being used for its appropriate purpose then under paragraph 6(4), that detention can be for up to nine hours. However, the nine hours long-stop only applies whilst  the examination continues.  Once it is over before the end of nine hours, then the person should be released.

 

What section 40(1)(b) says

So schedule 7 provides a limited power to question and a limited power to detain.

Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.

So the next question is fundamental – what does section 40(1)(b) say?

Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:

a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Section 40(1)(b) thereby is a  limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition.  Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.

This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b).  It is not a general power of search.

However, once property has been taken, then paragraph 11(2) provides it can be retained:

(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, [or]

(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings […]

So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.

 

Compulsion and coercion

Under paragraph 5(a), the detained person “must give the examining officer any information in his possession which the officer requests”.  Under paragraph 18, it is an imprisonable offence for that person not to comply with any duty (including the duty to provide information).

So the questions are asked under threat of coercion.

 

What schedule 7 is for and what it is not for

The legal powers provided under schedule 7 are broad, but they are also confined.

Unless they are being used for the specified purpose of determining whether the detained person fills the definition of “terrorist” under section 40(1)(b) then the power to detain and question cannot be lawfully used.

And if that is not the purpose, then the power to search for property to assist in determining whether a person is a terrorist is not triggered, and this in turn means that the power to retain any property for evidence in criminal proceedings is also not triggered.

In other words, schedule 7 cannot be used as a fishing expedition for property.

 

A detention of nine hours

David Miranda was detained for just under nine hours.

This is exceptional.

According to the official report on use of terrorism powers, only 0.06% of detainees are held for more than six hours.  This is not surprising given the limited scope of the question to be determined.  It seems 97.2% of those detained are freed in less than one hour.

For someone to be detained for almost the full nine hours is exceptional.  Even the “watchdog” for anti-terrorism legislation has called it “unusual”.

 

What the Americans have said

All the above can be worked out just from the Met police confirmation.

But what makes this case especially interesting – and, for me, worrying – is something which has been reported about what the American government knew. (Transcript.)

It is reported that the American government had advance notice of the detention.

If this is the case, then this appears to open a serious question [*Add for clarity – in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was.  He was not some random passenger.

Accordingly, if they knew who he was, then it would seem – to me – that [*Add for clarity – in this particular case] they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition.  They knew full well whether he did, or if he did not.  The questioning would be artificial.

In other words, by flagging the American government with an advance notice of the detention [Add for clarity – in this particular case], it would seem to me that [*this] detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).

And if  that was not actually the actual purpose of the detention, then there would be no power to question, detain and search David Miranda at all.

 

But in any case, and in summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.

 

[Add – 20 August 2013 – Joshua Rozenberg raises the alternative ground of illegality that the nine hour detention was disproportionate.]

[*Adds – 20 August 2013 – changes in the last few paragraphs to make intended meaning clearer – I was not making a general point that prior notice and awareness always meant a detention unlawful – but that in the case of Miranda it seems to me that they would have been aware that he was not a terrorist.]

 

 

 

COMMENTS POLICY

Comments are welcome and are pre-moderated.
No purely anonymous comments will be published; always use some name for ease of reference by other commenters.

 

On “armchair defendants” and Bradley Manning’s lawyers

Today Bradley Manning apologised at the military tribunal – the apology is here.

 

The apology reads as if it was drafted by his defense lawyers: it is not only contrite, but it presses every button for the tribunal not to impose a harsh sentence.

 

This should not be a surprise, for the impression which has formed for many following this prosecution is that Manning is getting very good legal advice.

 

Instead of denying all charges, a wise decision was taken to admit the lesser charges and focus the defense on the more serious ones.  That tactic worked: Manning was found not guilty on the more serious charges.

 

Now at sentencing,  there is contrition and not crowd-pleasing defiance.  It may not be enough to prevent a heavy sentence, but it certainly will not provoke the tribunal into wanting to make a lesson of him.

 

Any lawyer defending a case in the public eye is aware that the defendant’s supporters will often want a more robust and confrontational approach to the case.  This pressure should be disregarded: the priority is always the client’s interests.  The media or political context of a case should not, of course, be ignored – and there are benefits to having external support – but the most important goal must be to get the optimal outcome for the defendant.

 

By concentrating on defeating the more serious charges, and by this show of contrition, it would seem that Manning now has the best possible chance of the lowest sentence available in the circumstances.  And if this is so, then it is the lawyers which should be thanked for that.

 

It is easy to be an “armchair defendant” – but it is less easy to be a real one sitting in a court room, or in a prison cell.

 

 

COMMENTS POLICY

Comments are welcome and are pre-moderated.
No purely anonymous comments will be published; always use some name for ease of reference by other commenters.
Comments published at my absolute discretion.