Operation Cotton – VHCC Fraud case stayed due to legal aid cuts

Image from ipsimages.it

        Image from ipsimages.it

In a robing room in a South London Court today I saw a lawyer who bent down and pumped his fist in the manner that Tim Henman did when he achieved the feat of winning a game of tennis. The cause? He had just found out that HHJ Leonard QC had stayed the ‘Operation Cotton’ case.

You may have heard of HHJ Leonard – he’s having a busy year, being the Judge for the Max Clifford case (he will be sentencing Mr Clifford tomorrow) and the DLT one (and probably the retrial), as well as Rolf Harris when his trial starts shortly. He is now a hero to criminal lawyers (and may well be on a dartboard in the MoJ).

You can read the full ruling here, as well as some commentary by me for Halsbury’s Law Exchange here, which should (hopefully) explain the issues.

In brief, last year the government announced they would be cutting the fees paid to lawyers in VHCC (Very High Cost Cases) by 30%. This would not be just for new cases, but would apply to all cases starting after April 2014. The first one to impacted by this was the ‘Operation Cotton’ case (formally known as R v Crawley & Others). In this case all the advocates involved said ‘sod it’ – they would not be working for the new rates (not surprising perhaps – try telling a plumber that you’re knocking a third off the agreed price when he’s halfway through unblocking your sink and see what happens).

This cause an obvious problem. These cases are very large and complex. The Judge ruled (and the Prosecution accepted) that the defendants would not have a fair trial if they didn’t have legal representation. The reason that they didn’t have legal representation was because the Government (the same government that was prosecuting them of course) did not make enough resources available. In light of that, unless there was an alternative way through, the case would have to be stopped – if you can’t have a fair trial, then you can’t be tried at all.

The Prosecution suggested using the Public Defender Service (PDS). This would be ok, but for the fact that there are simply not enough PDS lawyers to be able to take these cases on (yet – I imagine that there will be a recruitment drive shortly) in a reasonable time.

For those reasons (in short) the Judge concluded that he had no option but to stop the case.

What happens now? The prosecution have until tomorrow to decide whether they wish to appeal. The only other remedy is for the Government to decide that they have gone too far and reverse the 30% cuts, in whole or in part. Either way, the ball is in the Government’s court. And whatever happens, this is certainly one to watch.

20 thoughts on “Operation Cotton – VHCC Fraud case stayed due to legal aid cuts

  1. markjf62

    Any barrister that cared about justice would not be ‘pumping his fists’ in the manner you have described. He would actually be concerned that justice clearly has not been done here; namely that the public, on whose behalf criminal laws are enacted, have watched a serious case go down the toilet. Shame he wasn’t also thinking about the wasted taxpayer’s cash that went into investigating this case, wasted police time etc.
    We all know why said barrister was ‘pumping his fists’, though, don’t we? He thinks decisions like this will turn the screw on the government, and help loosen the purse strings. At which point, justice (for him) will be done; ie he’ll get fatter fees on the back of the public purse.
    ‘The Bar’ (a substantial portion of it at any rate) lives in a ludicrous bubble. The general sense of entitlement is not only unbelievable, but deeply disturbing. The brutal truth is that most barristers are not only handsomely paid but, frankly, way overpaid. And my advice to those who want to complain? ‘There’s the exit door; close it on your way out. Oh, and good luck finding another job that will pay you anything like as well for what you do.’
    Of course, I will obviously met by the riposte ‘well, everybody accepted that these defendants wouldn’t get a fair trial if they didn’t have appropriate legal representation’. And why haven’t they? Greed. Pure and simple. Someone needs to say it, and whether the entire cohort of the Bar disagree concerns me not one iota.
    Having practised at the Bar for almost twenty years, I do feel entitled to hold this opinion, which I don’t doubt would be met with grunting and groaning from those still at the ‘coal face’. However, as Gandhi apparently once said, ‘the truth is still the truth, even if you are in a minority of one.’.

    1. nikki turner (@Spandavia)

      Very well said. I have waited 7 years for justice and it now seems entirely possible the 10 defendants that should go to trail in another case (due to be heard at Southwark CC next year), will be able to use this precedent to walk away from a massive fraud that has affected thousands of people. The Judge’s view that victims will have redress through the Civil Courts is, unfortunately, totally unrealistic. Justice in Civil Courts was bought and paid for years ago when it comes to major frauds involving high net worth individuals or Corporate institutions. It’s a minefield and one I would advise litigants to avoid unless they have very deep pockets. I appreciate the legal aid cuts are very wrong but surely, the answer to fighting the Government on this issue, cannot be to simply abandon justice? Judge Leonard’s decision has put the Civil & Criminal Courts in the same bracket – it’s all about the money. The alternative to this being a financial issue is even worse – the Government has little appetite to see major fraud trials that could compromise the great and the good (not to mention the Government), go to trial. They would be happy to see such cases “doomed.” BTW that is not based on conspiracy theory but it’s not for me to say where such a comment came from.

  2. Dan Bunting Post author

    Do you practice in criminal law? I assume not. We can sit here and argue about the merits and the exact figures, but I’m interested to know what you think (a) a criminal lawyer does earn, and (b) what they should earn?

    The wider issue is that this is not about money. It may be on the side of the bar, but it’s not on the part of the Government as they are happy to pay way over the odds (double in many cases) to employ people through the PDS, for the sake of having state control by nationalising legal services (because that is what Grayling, the darling of the Tory right, is doing).

    I suspect we will never agree, but I think we need to be realistic. Criminal lawyers provide an important public service, why should they be paid less than teachers, nurses and police officers? I don’t think to ask for parity with a teacher (not a profession known for its opulence) is particularly a sign of greed, why do you?

  3. Liberte, Egalitie, Sororite

    I have to take my hat off to the legal profession (for once) why should access to justice be extended only to those who can afford it? Yes some lawyers make mega bucks. I’ve worked in the NHS some doctors are equally as bucked up that’s not the point it’s about justice for all surely?

    1. markjf62

      You are taking your hat off too soon. These defendants could not get representation because those in the legal profession who are in the privileged position of being able to represent them have decided that an exorbitant fee is not enough for them. This is smoke and mirrors. The reality is that barristers are overpaid. I say this as someone who practised for a very long time, and made a lot of money out of the ‘system’. The people you are taking your hat off to are nothing less than people who are able to take advantage of a ‘closed shop’ system of representation who believe they can hold (basically) the public to ransom. As Chris Huhne said today (in relation to Constance Briscoe) there really is a ‘closing of ranks’ between Bar and judiciary in relation to this. My own perspective is that HHJ Leonard QC knew perfectly well the impact of his decision today, and it apparently resulted in barristers ‘pumping their fist’. Taxpayers deserve better than well paid professionals behaving like they have an entitlement.

      1. Dan Bunting Post author

        I fully accept that there are plenty of people who made plenty of money in the 80s and 90s off criminal legal aid. Those days are gone and it is the lawyers coming through that are the ones losing out.

  4. markjf62

    I practised as a criminal barrister until 2007, for almost twenty years. Criminal barristers are overpaid. It really is that simple. Why should they be paid less than nurses and teachers? I think, if you seriously believe this, you need a reality check. My cousin is a teacher, and works like a dog for a pittance, doing at least as many hours as I ever did. I am happy to ask her to post here, if you wish. Apparently, no teachers are ‘punching the air’ about any issue concerning them at the moment. They are too busy taking flak and educating the children of the country selflessly. Likewise nurses, who wipe people’s backsides, and do a job that I am one hundred per cent certain that no barrister I have ever met would do, in order to preserve and improve life.
    As I say, I practised for almost twenty years. I turned up at court, having put in hours of preparation overnight, only to find a case adjourned (through no fault of my own) and got paid the grand sum of £45. Did I get hacked off about it? Yes. But I knew that it was a case of ‘swings and roundabouts’. There were occasions when I got paid far in excess of what I actually deserved, and I accepted this. Teachers, Dan, don’t get that kind of deal. Nor do nurses.
    Yes, criminal barristers perform an important public service. That much is not in dispute. However, as I say, having worked my backside off as a criminal hack for almost twenty years, I never felt ‘underpaid’. I was perfectly happy with my earnings, and would have accepted a cut, quite happily. Greed is rampant in the profession, and I really believe that the public needs to wake up to the issue; and I think it slowly is.
    By the way, I anticipate that the barrister who was ‘pumping his fist’ might be a little premature. My view is that this government, and probably the one that comes after it, will eventually use cases like this to push the ‘greedy barristers’ scenario. Who are the general public going to have sympathy with? The police, who do the really hard work, build cases and get paid peanuts? Or barristers, who are not noted for getting their hands particularly dirty, and won’t look at cases such as the one in question for fees that run into the hundreds of thousands of pounds? This government (and probably those that follow) will need little encouragement to start looking at some kind of root and branch reform of the legal profession. The headlights are in the tunnel, and I am amazed that so few barristers actually see it coming.

  5. Dan Bunting Post author

    Mark – I think you need a reality check, things have changed a lot since 2007. There have been cuts in the order of 40%, some say more, some less, it depends on how you calculate it. What has gone is the swings (or the roundabouts whichever are the good bits). Of course there are still days when you get paid more (on an hourly rate basis) than you ‘should’, but these are far outweighed by the times when you get vastly underpaid. The reality is that unless you are in the ‘right’ set doing plenty of junior work, a barrister of ten years call doing criminal work earns less than a teacher of ten years experience.

    I agree that the public will have little sympathy towards barristers, but that’s because they do not understand what the situation is like on the ground. I also agree that there is likely to be a fundamental change in the way criminal legal services are provided. The writing is on the wall. The criminal bar is, put simply, completely finished in a few years time. We won’t know how much of a loss that is until 20-30 years down the line however.

    1. markjf62

      Well, Dan. We agree on that. The criminal bar is, put simply, finished in a few years time. And it only has itself to blame. It took leaving the profession to realise how much of a bubble it lives in. It is eye-opening.
      Have any of my colleagues ‘suffered’ 40% cuts in their earnings since 2007? Not according to them. Cuts, yes. But they still earn very nicely. The fact is, the Bar has been an overpaid profession for many, many years. Chickens are now coming home to roost. I believed, as a barrister, I was overpaid. That is a simple fact, Dan. I was overpaid. Or are you saying that I have no right to this opinion?
      My only concern during my time at the Bar was whether I was doing my best for my clients. As pathetic as it sounds, I was actually more concerned about doing the best job I could for them (whether it was acting for the CPS or legally-aided clients) as I could. The earnings were a secondary issue. Anyone who knows me knows that I always did the best I could, regardless of what I was earning. I would have done what I did for 50% of what I actually earned. You, or your readers, may not accept that, but it is just a fact.
      I have no idea when you qualified. If you feel hard done to, sorry. But the bubble has to, and is going to, burst.
      My faith ultimately went when the CBA came to a ‘resolution’ with Grayling. Was I surprised? No. It really told its own story.

  6. markjf62

    As an addendum, you have asked about earnings; what I think a barrister earns, and what I think he/she should earn.
    First of all, I know very well what barristers earn. I earned for almost twenty years, so I think I have some experience of this.
    As to what a barrister ‘should’ earn, I no longer have any faith that an independent legal profession should have any say over this. For too long they have held the public to ransom with the kind of ‘closed shop’ that should have ended long ago. If I want to be a teacher, I either accept the pay that the profession offers, or do something else. If I want to be a nurse, likewise. Why should the legal profession hold the public purse to ransom?
    By the way, I am not ‘right wing’. I do not vote Conservative. I am just someone from a working-class background who bust his guts to join the profession, enjoyed a relatively long period of very nice earnings, but now see the system as fundamentally bust and open to abuse. I feel entitled to say that, bearing in mind my personal experience, over many years. It seems to me that gun is now pointed very squarely at foot, and being fired at will. So be it.

  7. Dan Bunting Post author

    See above about earning, but the legal profession is not ‘holding the public purse to ransom’. The government has dictated what the rates of pay are and many people are deciding that the cannot afford or do not wish to work for those amounts. The chances of anyone not from a rich and privileged background coming to the bar is getting more and more remote.

    1. markjf62

      If they can’t afford to do it, Dan. then they should leave the profession. Go and find something else to do. If they don’t wish to work for those amounts, then leave. I am more than happy to return when sanity over earnings returns. The government ‘dictate’ rates of pay to teachers and nurses. I wonder why those from ‘rich and privileged’ backgrounds choose the Bar over nursing and teaching? Any thoughts?

  8. Dan Bunting Post author

    Mark – you’ve every right to your opinion of course. I don’t know the stats about who goes into nursing or teaching, but we know the answer to your question there. It may be that lawyers were overpaid (I suspect they probably were), but there have been among the people I know cuts in the order of 30-40% (certainly after the changes next year). That’s a huge hit. I know how hard teachers work (both my parents are teachers and I’m married to one) but leaving aside the insecurity of self-employment etc, when the cuts next year come in (and I think they will as you say), I’d be paid more as a twelve year qualified teacher than a twelve year call barrister.

    I’m actually not ideologically opposed to the PDS, but they are overpaid – they are being paid up to double what you would get in private practice in many cases, which I find odd (I think actually that the MoJ may actually believe their own spin about barristers earnings). Pegging lawyers salaries to teachers salaries within the PDS may be a good way forward?

    It’s hard, there will never be sympathy for barristers, and the demise of the bar is entirely the bars fault. I’ve never been a believer in a split profession, and I think fusion will be a good thing, but it should be managed rather than caused by market collapse.

  9. markjf62

    In relation to the earning of teachers who have more than 10 years experience, can you put a figure on this? Are you really trying to say that teachers who have more than 10 years of experience earn barristers of more than 10 years? Really? Main pay scale for teachers, plus six points? You will be earning around £34,000 gross.

  10. markjf62

    In relation to the earning of teachers who have more than 10 years experience, can you put a figure on this? Are you really trying to say that teachers who have more than 10 years of experience earn *more than barristers of more than 10 years? Really? Main pay scale for teachers, plus six points? You will be earning around £34,000 gross.

    1. Dan Bunting Post author

      Yes I am! It was £36,000 when I looked at it recently, but that may have been with London waiting.

      An exact comparison is not easy as factoring in pension etc and what is an expense if employed vs self employed is a complex actuarial exercise, but 25% of earning goes to chambers and a barrister of ten years call will easily receive under £50k after the next round of cuts.

  11. markjf62

    Maybe, as a conclusion, we can agree on one or two things. Firstly, your blog is superb. Secondly, it is obvious you care deeply about justice. Both of those things resonate with me.

  12. Pingback: Operation Cotton in the Court of Appeal – Preview | UK Criminal Law Blog

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