Operation Cotton Appeal: the MoJ skeleton argument

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


The Lord Chancellor – Proposed Intervenor


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


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.

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