Operation Cotton ruling removes the notion of the independent bar for complex cases, replacing it with an inadequate nationalised public defender.
The five, still unrepresented, defendants in the first Operation Cotton trial will shortly be back before His Honour Judge Anthony Leonard at Southwark Crown Court for a ‘review’ hearing in an attempt to progress the case.
Less than a week ago Sir Brian Leveson in the Court of Appeal ruled that Leonard had erred in law and principle in taking the ‘draconian action’ of staying the case for want of counsel due to the ongoing fee dispute between the bar and the government.
At paragraph 45 of the judgment Leveson said: ‘The agreed test to be applied was “is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?”.’
The answer, he said, was: ‘At the date of the hearing before the judge, on our analysis, there was a sufficient prospect of a sufficient number of Public Defender Service advocates who were then available who would enable a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC and was available at the date of the hearing.’
Leveson continued: ‘The obvious obligation on the defence should have been to instruct advocates at that point so as to retain them for a January 2015 trial.’
Failure to do so, suggested Leveson, would be likely to result in ‘a finding adverse to the defendants’ – ie, if the defence refused to instruct the PDS, the defendants could be viewed as being voluntarily unrepresented at any future application to adjourn or stay the trial.
In one fell swoop, the judge who had sought to gag the press, swept away the notion that independent barristers and solicitors should represent defendants in complex cases, replacing them with a nationalised public defender system.
As even the most inattentive law student knows, Lord Sankey in the 1935 case Woolmington v DPP, cited as the ‘golden thread’ running through the web of English criminal law, the presumption of innocence. To that one he could have added another, perhaps silver strand – representation by independent counsel. That thread has been pulled away.
It might sound like pretentious rhetoric, and most accept the cab rank rule to be honoured more in breach than adherence, but the notion of independence goes beyond this rule. It is an idea central to the proper administration of justice that a defendant be represented by an individual without fear or favour, unrestricted by interference or pressure from the state.
That notion seems to be in tatters, but the lord chancellor has been slow to pick up the pieces.
‘Emergency measures’ to recruit senior counsel to the PDS, disclosed in the skeleton argument submitted on behalf of Chris Grayling in the Operation Cotton appeal almost two weeks ago, have not come to fruition – the service employs 22 advocates, insufficient to represent the 31 publicly funded defendants in the eight trials so far affected by the barristers' action.
Why not? Perhaps someone fears further antagonising the bar, which while indicating a willingness to negotiate, has threatened to take further direct action. With a further unravelling of criminal justice.
Catherine Baksi is a Gazette reporter