Tag Archives: Abuse of process

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.

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Sgt Nightingale fails in abuse of process application – retrial goes ahead

nightingaleAnd so the Sgt Nightingale saga rumbles on….

Readers will recall that after a successful sentence appeal and a successful conviction appeal, the Court of Appeal ordered a re-trial on the basis that the plea of guilty was a nullity as a result of improper pressure to plead guilty at the Court Martial.

A summary of the history of the case is available here. (Written before the sentence appeal.) Please see the ‘Sgt Danny Nightingale’ menu item at the top of the page for all posts on this case.

The hearing dated 1 May 2013 was a preliminary hearing. Such hearings are used to determine issues before trial. At this hearing, Sgt Nightingale argued that the decision to prosecute him was an abuse of process as the prosecution for a second time was not in the public interest. He argued it was both improper and oppressive. The Crown rejected Sgt Nightingale’s arguments. 

The court considered case law on the issue.

HHJ Jeff Blackett, the Judge Advocate General determined that the Director of Service Prosecutions (responsible for prosecutions in the Service Justice System) had not acted improperly.

The Judge went on to say:

‘…there is no suggestion that the decision to prosecute is arbitrary and I have already ruled that there was no impropriety on behalf of the DSP. Nor has there been excessive delay, there is no issue of lost or destroyed evidence, entrapment, going back on a promise not to prosecute, manipulation of procedure or immunity from prosecution. Nor can it be said that the Crown has acted in bad faith or dishonestly. There is a prima facie case against the defendant for two offences of unlawful possession of a firearm and unlawful possession of ammunition. The defendant has been properly investigated and then charged and the Crown has confirmed that it has kept the decision to prosecute under continuous review. In other words, oppression above and beyond the ordinary consequences of initiating a prosecution has not been shown. All of the factors suggested by the defence relating to the Defendant’s health, his future employment, the cost of defending himself or the risk of conviction reflect the personal impact upon the Defendant but they do not amount to oppression by the Crown.’

The Judge concluded:

‘…it is not my function to review the decision to prosecute. Provided I am satisfied that there has been no bad faith or dishonesty and that the exercise of a prosecutorial discretion has been conscientiously undertaken, I should direct that the matter proceeds to trial.’

The re-trial is expected the begin on 1 July.

The transcript, courtesy of Crimeline, is available here.

Image courtesy of the Daily Mail.