Following a winter of discontent, spring was in the air on May Day with the decision of His Honour Judge Leonard QC to refuse the prosecution’s request for an adjournment and stay the proceedings in Operation Cotton.
Next year we will congratulate ourselves on the 800th anniversary of Magna Carta. HHJ Leonard’s decision reflects the too often forgotten promise not to deny or delay justice to any man.
The case for the five defendants, admirably presented by Alex Cameron QC, was helped by prosecution ‘own goals’, one of which related to the level of fees. The judge asked a representative of the Legal Aid Agency what would be the hourly rate for a silk in a category 2 VHCC case. The representative replied ‘£113 per hour’.
He had to apologise when it was pointed out that he was using the pre-30% cut figure; sweet revenge for those who have been complaining about the government’s misrepresentations about legal aid. In fact, VHCC fees have been cut by 44.12% since 2007, a figure the legal professions have insufficiently articulated and which is in stark contrast to the far higher fees paid by the Financial Conduct Authority to its counsel.
The judge concluded: ‘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.’
He continued: ‘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 [Public Defender Service].’
The parties having agreed on the appropriate legal principles, the appeal for which the prosecution now seek leave can only succeed if, in reaching these conclusions, the judge reached a conclusion which no reasonable judge could have reached on the material before him. The senior judiciary, who have said little in public about the devastation wrought by successive governments on the criminal justice system, now have an opportunity, if leave is granted, to end their silence.
The criminal justice system, which during my career at the bar enabled legally aided defendants to have much the same quality of representation as the prosecution and privately represented defendants, is now all but destroyed.
The government’s response to advocates not being willing to do VHCC cases at the current rates has been to breathe new life into the PDS with the appointment of a number of silks. It is reported they will earn £125,000 a year for a 37-hour week with, one presumes, the additional advantages of a salaried occupation.
In the words of HHJ Leonard: ‘On the basis of a 37-hour week the [PDS] advocate will need a minimum of 12 clear weeks out of court to prepare this case.’
It is a sad reflection on our criminal justice system that the government is willing, without debate, to abandon the independent bar in favour of a salaried defence service to achieve its perceived aims.
On behalf of the Expert Witness Institute, of which I am chair, I made representations about the proposed savage cuts being made to the fees paid to expert witnesses in criminal cases. The government chose to ignore those and many similar representations. It is now being reported that, as we forecast, experts are refusing in criminal cases to be instructed, with consequent delays and possibly stays.
Let us hope HHJ Leonard’s judgment will bring the government to its senses. If a sailor knowingly goes to sea in a leaking vessel, a rescuer is entitled to reproach him for having done so. But the rescuer will still have to rescue the sailor. Let us hope that the government knows that it is time to call ‘Mayday’.
Sir Anthony Hooper is a retired Court of Appeal judge and an associate member of Matrix Chambers. He has been assisting the solicitors representing the defendants in Operation Cotton on a pro bono basis