House of Lords Reform Act 2014

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Legislative activity continues apace with 24 "Public General" Acts so far this year and some 1340 Statutory Instruments.  There are numerous bills before Parliament, some of which will eventually emerge as law.

One new Act, of which little seems to have been said, is the House of Lords Reform Act 2014.  It is a short Act of a mere 7 sections and NO schedules.  Introduced into Parliament by Mr Dan Byles MP, It is an example of a private member's bill becoming law.  In the Lords, the Bill was sponsored by Lord Steel of Aikwood.  The Bill received both government and opposition support.

Section 1 - Resignation  - provides that
' a member of the House of Lords who is a peer may retire or otherwise resign as a member of the House of Lords by giving notice in writing to the Clerk of the Parliaments.'

Section 2 - Non-attendance - deals with those peers who simply do not attend the House.  'A member of the House of Lords who is a peer and does not attend the House of Lords during a Session ceases to be a member of the House at the beginning of the following Session.'

Section 3 - Conviction of serious offence - is concerned with those 'members of the House of Lords' who are convicted of a criminal offence and, as a result, are 'sentenced or ordered to be imprisoned or detained indefinitely or for more than one year.'  Such individuals will cease to be members of the House of Lords though a certificate from the Lord Speaker that the individual is within section 3 is required.

Section 3 is not retrospective in effect - see 3(4) - and, perhaps somewhat generously, the new rule will not apply where a sentence is suspended - section 3(5).

The phrase  'sentenced or ordered to be imprisoned or detained indefinitely or for more than one year.' is hardly the clearest example of draftsmanship.  My problem with it is the third use of the word 'or'.   This seems to make the words 'for more than one year' only apply to detention.  This does not seem to have been the intention of the legislature.  In March 2014, the House of Lords Select Committee on the Constitution published a document relating to the Bill and this indicates at paragraph 8 that the understanding was that membership could only be terminated if a sentence of imprisonment was for more than one year.

The same understanding appears in the House of Commons when the Bill was in committee stage (see Hansard January 2014).   Dan Byles MP (who introduced the Bill) said - ' Clause 3 provides for Members who are convicted of a serious offence to lose their membership. In many ways, this is the clause in the Bill that has attracted the most interest. The provision will apply only if the Lord Speaker certifies that the Member has been convicted of an offence and sentenced to imprisonment or detention of more than one year and the order is not suspended. If the person successfully appeals against their conviction or sentence, the Lord Speaker is to revoke the first certificate by issuing another. The Lord Speaker exercises no discretion or judgment in that. That is an important point, which was discussed on Second Reading. It is not the Lord Speaker making the decision to do that; he is simply the mechanism through which it is done, as a certificate relates to matters of fact.'

Some articles on the Act also indicate that any imprisonment must be for more than one year - for example, Conservative Companion

Section 4 deals with the effects of ceasing to be a member.  Section 5 permits the Lord Speaker to issue certificates on his or her own initiative and such certificates are conclusive for all purposes.  Section 6 deals with some points of interpretation and section 7 deals with commencement.  Sections 1 and 2 of the Act come into force at the end of the period of three months beginning with the day on which this Act is passed - i.e. 3 months from 14th May 2014.  The remainder of the Act came into force as soon as it was enacted.

After the collapse in 2012 of the much more extensive House of Lords Reform Bill, these provisions appear to be a sensible and welcome development.  The Act appears to ensure that the House of Lords and the Lord Speaker retain control over the various processes.  It is unlikely that the Act will trouble the ordinary law courts because (a) certificates of the Lord Speaker are conclusive for all purposes and (b) the Bill of Rights 1688 Article 9 provides that - `freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament'.

Explanatory Notes to the Act are available

European Court of Human Rights - two decisions of interest

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A recent decision of the Second section of the European Court of Human Rights has re-iterated the court's jurisprudence with regard to "whole life" tariffs - Mr László Magyar v Hungary .  The relevant principles to be applied were set out by the Grand Chamber in Vinter and others v United Kingdom 2013 - discussed on this blog 9th July 2013.

To date, the British government does not appear to have taken any action as a result of the Vinter case.  The most logical and, I submit proper, response would been to have put in place an independent mechanism for review of the need for on-going detention on penological grounds of those prisoners ordered to serve 'whole life' terms.  The matter has been
"fudged" by the decision of the Court of Appeal (Criminal Division) in R v McLoughlin [2014] EWCA Crim 188 where it was held that the possibility of release under the Crime (Sentences) Act 1997 section 30 (exceptional circumstances which justify release on compassionate grounds) provided an appropriate mechanism - (further discussion).

Mr Magyar's case is effectively the court applying its established jurisprudence to the particular situation regarding whole lifers in Hungary.  The court found a breach of Article 3 because the possibility of presidential clemency was insufficient.

However, the decision perhaps shows that the present situation in England and Wales will prove to be inadequate should the matter again come before the E Ct HR.  Despite the Court of Appeal's decision in McLoughlin, the 1997 Act possibility of "compassionate" release seems unlikely to meet the need, as stated by the Grand Chamber in Vinter, for a full review of the need for continuing detention of a whole lifer.  Whether the British government cares about this is a moot point.  It may be that they actually prefer, for political reasons, to have the present "stand off" with the E Ct HR.  Certain senior members of the government have even talked about the possibility of withdrawal from the European Convention and the Secretary of State for Justice has said that he will present plans later this year - BBC 13th January 2014.

An excellent discussion of Mr Magyar's case and its implications is at UK Criminal Law Blog



An admissibility decision of the 4th Section of the E Ct HR is Karen Harrison v United Kingdom. The applicants complained under Article 2 of the Convention that the respondent State has failed to conduct a prompt, effective and independent investigation into the deaths of their family members arising from the Hillsborough Stadium disaster, with sufficient levels of public scrutiny and family participation. The E Ct HR ruled that the application was inadmissible.  The Hillsborough Independent Panel Report (here and here) had created a further Article 2 obligation on the UK but this was being discharged by, inter alia, the new inquests ordered by the High Court.  Those inquests are now underway - Lord Justice Goldring and a jury.

At paras. 53 and 54 of the admissibility decision, the E Ct Hr said:

53.  The flawed character of the original inquests has now been recognised, two decades on, by the  Hillsborough Independent Panel, the Government and the High Court in the light of newly disclosed information (see paragraphs 32-38 above). The question for this Court is whether any procedural obligation incumbent on the respondent State to investigate the deaths of the  Hillsborough victims has been revived and, if so, what is the content of that obligation. The Court is prepared to accept that the nature of the deaths in the present case engages the procedural aspect of Article 2. It is persuaded that the findings of the Hillsborough Independent Panel constitute new evidence and information which cast doubt on the effectiveness of the original inquest and criminal investigations. In these circumstances, the authorities are under an obligation, pursuant to Article 2 of the Convention, to take further investigative measures.
 

and at para 59 ...

The procedural obligation under Article 2 that is before this Court to consider in the present applications came into existence with the findings of the Panel. This being so, and having regard both to the understandable absence of criticism by the applicants of the prompt and effective measures taken so far by various authorities of the respondent State to further investigate the deaths of the  Hillsborough victims following the setting up of the Panel and to the pending inquests and investigations, the applications must be regarded as premature and inadmissible pursuant to Article 35 §§ 1 and 4. If the applicants become dissatisfied with the progress being made or, upon the conclusion of the investigations and inquests, are not content with the outcome, it remains open to them to lodge further applications with the Court.

The Hillsborough Inquests website

Justice Armageddon ~ the dire state of access to justice after 4 years of the coalition government

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In recent weeks a considerable number of blogs have expressed huge concern at the damage being done to access to justice by the various "justice" policies of the coalition government.  Whilst it is hardly surprising that the government has sought ways to reduce expenditure, the cuts to legal aid have been brutal with whole areas of law removed entirely from the scope of legal aid.  This gives rise to the serious thought that the cuts are based on a deliberate ideology to remove or limit access to justice for the general population and to bring about restrictions to the availability of judicial review which is one of the key ways to test the legality of decision-making by those with executive power such as Ministers. 

Recently, this blog looked at the impasse
between government and the independent criminal bar over the 30% fee reduction for counsel in Very High Cost Cases (VHCC) - Some reflections on the Operation Cotton appeal.  David Allen Green has now taken up the Operation Cotton theme with a well-considered post in the Financial times (ft.com) - Three threads of Cotton - and the tangle that remains over legal aid. 

Legal Voice draws attention to the fact that lawyers are seeking judicial review of the Ministry of Justice's Transforming legal aid cuts.   The Criminal Law Solicitor's Association and the London Criminal Courts Solicitor's Association are arguing that the process was unlawful due to failure to disclose a report by KMPG, thereby depriving these bodies of an opportunity to challenge errors or incorrect assumptions.

The Marilyn Stowe blog refers to the views of judges that legal aid cuts have resulted in increased costs elsewhere.  The Judicial Executive Board questioned the economy of the cuts in a written submission to the Commons Justice Select Committee, which is investigating the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Changes included significant cuts to legal aid provision.

Do right and fear no one looks at the decline and fall of the criminal justice system. The blog states that - 'Readers of this and other better blogs know all too well that the CJS has been crumbling around our ears for years now. Successive cuts to the infrastructure, fees, interpreters, Prison Service, general outsourcing have all contributed through successive governments to a system that is held together by the joint professions dwindling goodwill, sticking plaster, a hope and a prayer.
We all have horror stories of the inefficiencies racking up cost and expense, both in stark monetary terms and also in terms of time and consequential “indirect costs” .....'

An article in The Huffington Post takes us back to the Operation Cotton appeal - Justice Armageddon as Court of Appeal destroys accuseds' right to a proper defence and a fair trial.   This article, by Philip S Smith of Tuckers Solicitors, argues that -

'It is impossible to overstate the serious implications of a Court of Appeal decision this week which spell disaster for the administration of British justice.

Three of our pre-eminent members of the judiciary backed process over principle and potentially dug the government out of a hole of it's own making but, in order to do so, their decision has taken an axe to one of this country's most cherished legal institutions: an individual's right to be properly defended in a court of criminal law by an Advocate of one's own choosing.'

The Oxford Human Rights Hub has held a symposium at which there was a discussion on Public Interest Lawyering in times of austerity   This looked at some of barriers to be faced by individuals seeking to uphold their legal rights in times of austerity.  For instance, the individual whose rights are in jeopardy and lack the means necessary to satisfy an adverse costs order, should their claim be unsuccessful. Although discretionary funding for ‘exceptional cases’ is in theory available, in practice the provision is nowhere near sufficient, and those who miss out tend to be the ones most in need of additional support.

In a democracy, access to justice is an essential commodity.  Removal of legal aid or its restriction; severe cuts to counsel fees in the most complex of cases (VHCC includes fraud, terrorism etc); restrictions on judicial review and other problems all accumulate to present a very sad indictment of the present state of justice in the country.  The time is coming, if not already here, for a serious reappraisal of the situation.

As for the Ministry of Justice's reform of the contractual arrangements for court interpreters, the President of the Family Division (Sir James Munby P) has had some trenchant observations - Law Society Gazette 27th May. Sir James was sitting in the recently formed Family Court - see the judgment - In the matter of J and S (Children) [2014] EWFC 4. 

It is not merely in the area of legal aid that the Ministry of Justice policies are attracting criticism.  In The Guardian, Mr Sadiq Khan (Shadow Justice Spokesman) criticises plans to privatise probation services.  Mr Khan regards this as a serious risk with public safety - The Guardian 30th May 2014.  Khan argues that - 'The probation service has a fundamental role in keeping our communities safe. Yes, it can do better but instead of gambling with public safety, we must build on what works.'

Finally, I would urge readers to step back a year and see what was being said about cuts to legal aid - Six reasons the cuts to legal aid will ruin our justice system.  Many of those dire predictions are, sadly, proving to be correct.  Also, last October in the Tom Sargent Lecture, Lord Neuberger (President of the Supreme Court) warned of the risks to justice. 

Addendum 31st May:

For a further blogpost on the parlous state of justice see View from the North - Mr Whippy

Jon Vernon's favourite Dartmoor cycling trails

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Explore the south of Sicily

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Sicily is Italy's largest island and lies proudly just off the mainland, in the sparkling Mediterranean Sea. Famed for its beautiful beaches, cuisine, and cultural melting pot, the island makes for an excellent destination for travellers who want to immerse themselves in its astounding beauty and rich history.

Whilst many travellers head to the popular hotspots of the north and east such as Taormina, Cefalu, Etna and Palermo, the south west part of the island can often be undeservedly overlooked. Take a look at our snapshot of some of the most outstanding towns in the South of Sicily;

Noto



The island is well known for its Baroque art and architecture, which are most evident in the eight towns of Val di Noto, a UNESCO World Heritage site located in the southeast.  The town of Noto itself is located at the foot of the Iblean Mountains. The town offers numerous palaces and religious buildings, the most notable of which is the Noto Cathedral. The town also has plenty of archaeological sites that date back to 3rd and 2nd centuries BC. The Villa Romana del Tellaro, one of the oldest Roman villas in Sicily, was built during the late Roman Empire.  The famed Baroque churches, and palazzo are must-see destinations.



Nature seems to have endowed all its wonders to this area; mountains and hills surround the area and above all the sea, with its incredible colours and crystal-clear water is unforgettable.  For wild unserviced beaches, the stretches in the Vendicari near Noto, Eloro, Calamosche are amongst the best in Sicily.

Siracusa



Syracuse or Siracusa as it is known in Italian is a lively coastal town, overflowing with amazing remnants from its long history. Romans, Vandals and Normans are but a few of those who ruled here after the Greeks. In the harbour, the old City which is known as Ortygia Island offers many attractions, including the 17th cathedral and the Fountain of Arethusa. Its charming ancient and medieval streets offer great sightseeing and shopping alike.  Here you will find the ruins of ancient Greek walls that were built by Dionysius the Great, and see the Apollo temple in Piazza Pancali.


The Piazza del Duomo is the town’s beautiful central square, with plenty going on as well as lots of places to sit back and watch the world go by. Just outside the town, the area is blessed with some beautiful beaches. Arenella is popular with the locals and offers a sandy beach and cliffs. Fontane Bianche is further south and is a popular resort with lots of restaurants and bars and perfect if you are looking for a full service beach. If you prefer a rural nature reserve, again try Vendicari.


Ragusa



Set amidst the rocky peaks northwest of Modica, Ragusa is a town, which is effectively split into two. On the top of the hill is Ragusa Superiore, the busy and ‘working’ part of the town, while further down on the hillside is Ragusa Ibla, its historic centre. This part is absolutely outstanding; a labyrinth of alleyways, quaint stone houses and baroque palazzi and architecture, which has earned it UNESCO World Heritage status. Its history and culture makes it fascinating but the sight of the town clinging to the hill upon its approach is really quite breath-taking.


The beaches near Ragusa are spectacular – it has half the blue flag beaches of Sicily - here you will find golden sand, clear water and clean and uncrowded beaches. Marina di Ragusa is the most popular and lively resort, Sampieri and Marina di Modica are both perfect for families and Modica also offers a bay which is windsurfers’ paradise.  Further afield in Pozzallo, you will find some beautiful coastline with crystal-clear water and a great Mediterranean backdrop.

Is the south of Sicily for me?



All in all, the southern part of Sicily is a real gem.  Unique and intense sceneries, scents and flavours of uncontaminated nature, the land is surrounded by green olive groves, almond trees, citrus orchards and vineyards that stretch out to the sea. Its town and cities are rich with history and amazing monuments. The locals are proud of their traditions, which is why the entire Province offers a calendar rich in fairs and festivals.


To come here simply for a beach holiday and not explore would be a shame but you will find the best of both worlds. Amazing scenery and food, which is blessed by the land and sea and some very interesting culture and history right on your doorstep. The apartments in Sicily are lovely and many offer sea views and the villas in Sicily and out of this world. A great combination for a holiday in Italy…

Accommodation


Looking for your perfect home away from home in Sicily? Holiday Homes in Italy offers a great selection of holiday homes, villas and apartments in the south of Sicily:

View villas and apartments in the south of Sicily

A short news roundup

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Richard III - The final resting place for the mortal remains of King Richard III may now be settled as a result of a decision by the Queen's Bench Divisional Court - R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662.   Previous posts on this are at Richard III and The Burial of King Richard III.  It is worth noting that he was the last of the Plantagenet line which ran some 331 years from 1154 (Henry II) to 1485 (death of Richard III at Bosworth Field).  This was a remarkable period in the early development of English law and its courts.

For a detailed and interesting post by David Hart QC, see UK Human Rights Blog - Richard III: Fairness and Public Interest Litigation

New Sentencing Guidelines - The Sentencing Council has issued new sentencing guidelines for fraud, bribery and money laundering.  The guideline is issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and older and to organisations who are sentenced on or after 1 October 2014.

• Definitive Guideline: Fraud, bribery and money laundering offences - Crown Court
• Update 12 – Magistrates’ Court Sentencing Guidelines

Court Martial Appeal - On an appeal from the Court Martial to the Court Martial Appeal Court, the minimum term to be served by Aleaxnder Wayne Blackman was reduced to 8 years.  At the time of his trial by the court martial he was referred to as Marine A.  Previous posts on the case are at Murder in Helmand (11th November 2013) and Royal Marine sentenced for murder (6th December 2013).  The appeal is reported on Bailii as R v Blackman [2014] EWCA Crim 1029.   Readers of the judgment will be interested to note the strong mitigation detailed in paragraph 75 and the point the Lord Chief Justice makes about there being no need for an additional element in the sentence for deterrence purposes (para 76)where the LCJ stated:

' ... the particular circumstances did not require an additional term by way of deterrence to the sentence as the Court Martial found. The open and very public way in which the proceedings were conducted overall, the worldwide publicity given to the appellant's conviction, the life sentence imposed on him and the significant minimum term he must in any event serve before any consideration of parole will be sufficient deterrence.'

For further on this case, see also ICLR Weekly News

R v Stuart Hall - The former television presenter Stuart Hall has been sentenced to an additional 30 months imprisonment on 2 counts of indecent assault.  The sentencing remarks of Mr Justice Turner are available via the Judiciary website.  Mr Hall had pleaded guilty to one of the counts (Count 21)  for which he was sentenced to 12 months imprisonment and had been convicted by the jury of the other count (Count 19) for which 18 months was imposed.  The 12 and 18 month sentences to run consecutively and in addition to imprisonment Mr Hall is already serving.  Mr Hall was acquitted of 19 further counts.  See also the Previous post of 17th June 2013.

Land Law - As of Right - The meaning of the phrase 'as of right' in the Commons Act 2006 s15(2)(a) has been considered by the Supreme Court in connection with a recreation ground located in Whitby, North Yorkshire.  This case will be of interest / importance to land law practitoners and students of land law.

R (On the Application of Christine Barkas) (Appellant) v North Yorkshire County Council (Respondent)

• Judgment (PDF)
• Press summary (PDF)

Fal River Festival 2014

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We’re sponsoring the Saturday (for the 4th year in succession) of – the Fal River festival, a fantastic not-for-profit 10 day community festival encompassing over 150 events varying from music & drama, the arts & heritage to gig racing, swimming, walking & lots more.

Each year more than 100,000 people attend a range of different events helping raise a whopping £75,000 for charity while enjoying 3,000 pints of ale, lager and cider!

Katie Treseder, our local Property Manager, and marketing manager Adrian Innocent will be flying the HH flag on Events Square (right by the Maritime Museum) all day Saturday. Pop along for a chance to win a signed print of St Mawes by West Country artist Sara Nunan – see flyer above – by subscribing to our newsletter.

Day 2 of the Festival includes the Fal Fish Festival, also on Events Square, where you can see all the delights of Cornwall's very best seafood.

There’s also the Flushing & Mylor Pilot Gig Club Regatta, where you can see traditional pilot gig racing. Racing starts from 10.30am.

Or how about Art in a BOX – for those artistically inclined, you can collect a box from Flushing Village Stores to create your own piece of art in. These will then be stacked as a ʻWall of Artʼ in the window of ʻThe Old Bakeryʼ opposite Flushing Stores, on Trefusis Road.

The festival was established in 2006 and will be running for its 9th year in 2014. It's a chance to embrace the places, people, history, culture, sport & industry that are connected by this very Cornish river. The festival offers something for everyone and is the perfect opportunity to engage with life on the river and discover some of its fascinating history.

We hope to see you there!

Some reflections on the Op Cotton appeal

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A shot across the bows?

'It has now become about the desire for control and the flailing avoidance of political embarrassment by any and all means necessary' - Jenny McCartney, The Telegraph 21st May.

Nigel Lithman QC (Chairman of the Criminal Bar Association - CBA) has given a response to the ruling of the Court of Appeal (Criminal Division) in the Operation Cotton appeal - (see previous post).   

Whilst members of the independent criminal bar are free to accept briefs for Very High Cost Cases (VHCC), they have chosen not to do so due to the 30% cut in fees imposed by the Ministry of Justice.  (Actually down by around 44% since 2007).  Mr Lithman makes it clear that the CBA has not sought to dissuade barristers from accepting VHCC briefs should they choose to do so.

In his statement, Mr Lithman refers to the agreement of late March 2014 which I have set out below.   The agreement was accepted
by the criminal bar following a ballot - (see previous post).  The refusal of the Bar to accept VHCC briefs has been met by a government decision to further expand the Public Defender Service (PDS).  Mr Lithman states that the government had agreed to talk with the Bar's leaders (including the CBA) and not to expand further the PDS.  Mr Lithman's statement ends by noting - 'If they will not abide by this accord this will be seen as an inappropriate act of bad faith on their part.'  

The agreement does not actually refer to PDS but states that - 'As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.' 

The Ministry of Justice / Lord Chancellor was given permission to intervene in the Operation Cotton appeal against the ruling of His Honour Judge Leonard QC to stay the indictment in a serious fraud case.  The Financial Conduct Authority (FCA) appealed against Judge Leonard's ruling and the intervention of the Lord Chancellor was permitted on the basis that he did not introduce new evidence.  Whether or not the Lord Chancellor actually did introduce new evidence is, in my view, debatable.  In the Ministry's skeleton argument, the point was made that the government had, as an emergency measure, decided to further expand the PDS so that defence counsel could be found for this case and other cases.  However one looks at this, it is hard to escape the view that it must have had some influence on the Court of Appeal.  At the end of the skeleton argument, it is stated 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.'

It may be politically convenient to disguise this mess as an emergency but it is a situation that was entirely foreseeable.  The decision to expand the PDS is a measure that the government is entitled to take though it can be sensibly argued that the costs of doing so will be much higher than restoration (in whole or in part) of the VHCC fee cut.  Staff employed by the PDS will be salaried and will have the usual taxation-funded entitlements that civil servants generally enjoy including a generous pension scheme.

Turning to the Court of Appeal's judgment of 21st May,  relating to Judge Leonard's decision.  The Court of Appeal allowed the Financial Conduct Authority's appeal and ruled that the Judge's ruling 'did involve errors of law or principle and, in any event, was not reasonable in the sense that a number of the conclusions reached were not reasonably open to him based on the evidence and, in any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him.'

Whilst I did not expect the Court of Appeal to uphold the Judge's decision, I certainly did not expect such an excoriating judgment overturning the learned judge.  I expected something along the lines of a decision to the effect that, in the light of the Ministry of Justice's new attempts to find advocates in the PDS, that an adjournment was now an appropriate course to take.  The situation before the Court of Appeal was not, in the light of the Ministry's submission, anything like the situation faced by Judge Leonard at the time of his ruling.

The stakes for the prosecution of VHCC were very high and the government's policy of cutting funding was in the spotlight.  This is a policy with which the Lord Chancellor is personally identified. However, it is interesting to consider the basis on which the court permitted his intervention.  According to paragraph 27 of the judgment, the intervention was permitted 'without demur' from the parties.  The judgment does not state any other basis on which the intervention was permitted in an appeal against a trial judge's terminating ruling which would, normally, have involved only the prosecution and the defendants.

The court's judgment contains several indications of the complexity of the case - see, for example paragraph 2 - 'The volume of papers amounts to some 46,030 pages; 194 excel spreadsheets, 864,200 lines of entry and a case summary of 55 pages.  Counsel has to master this material and trial preparation also involves careful study of the relevant law (statutory and case law) as well as preparation for the examination and cross-examination of the witnesses.  This is a lengthy task and requires counsel of appropriate expertise and experience.  Such qualities are not acquired overnight but are the outcome of many years of, as Sir Brian Levson noted, 'developing their skills from the straightforward work until they are able to undertake the most complex.'

A further reflection is that the fee cuts did not apply to trials commenced before 31st March 2014.  It is a pity that the original level of fees was not maintained for those cases that had been commenced before that date even if the trial had not started.  Such a position could well have avoided the problem encountered in the Op Cotton case.

The judgment may well give the Lord Chancellor a breathing space.  Upholding the stay would have been a disaster for his VHCC fees policy and, if appropriately qualified counsel are not forthcoming, there remains the possibility of a stay eventually being imposed (see judgment at para. 55).   The Lord Chancellor ought therefore to see this as something of a shot across his bows.

Will there be an appeal to the Supreme Court?  Given that the Court of Appeal held that Judge Leonard had erred in law or principle, the door to an appeal seems to be ajar.  No doubt the matter will be under consideration by lawyers for the defendants.  [Note:  Rulings made under Part 9 of the Criminal Justice Act 2003 may be appealed to the Supreme Court but only if Criminal Appeal Act 1968 s33(2) applies].

The impasse over VHCC between the independent Bar and the government has to be resolved.  The Lord Chancellor's decision to further expand the PDS has angered the Bar and does not, quite frankly, auger well for a rapid solution to the problem.  One would hope that the March agreement still holds to the extent that the Government will work with the professions to consider possible better alternatives to the VHCC scheme.  Time will tell !  (Update: The Criminal Bar Association has asked to have further discussions with government about VHCC - CBA Press release 22nd May)

Media comment:

The Telegraph 21st May - Jenny McCartney -  Why is Chris Grayling trying to nationalise the criminal bar at a higher cost to the taxpayer?

'Mr Grayling is seemingly now bent upon nationalising the criminal bar at greater cost to the taxpayer. This is a curious position for a Conservative minister to find himself in.  So what is this really about, if not savings? It has now become about the desire for control and the flailing avoidance of political embarrassment by any and all means necessary.'

The Lawyer - Joanne Harris - 21st May - FCA succeeds in reversing stay in Operation Cotton trial

ICLR - PDS, PDQ! Operation Cotton and Operation (saving the MOJ's) Bacon

Jack of Kent - Useful links on the Operation Cotton Appeal

The Agreement of March 2014:

Agreement between Ministry of Justice, Bar Council and Criminal Bar Association  No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014.  Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that: 1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below.  This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind. 2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence.  3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular:  · Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy; · Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;   · criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;   · any impacts on legal aid spend from falling crime rates; and  · a comprehensive analysis of income and earnings of criminal advocates, including effects from changes in recent years.    4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported. 5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament.  6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.   7. The Officers of the Bar Council and the Criminal Bar Association, having engaged with the Circuits have stated that, in return for the Government’s proposed approach (outlined above): · whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs  · there is no reason why barristers who want to work on VHCCs should not do so;  · the ‘no returns’ policy should be withdrawn; and  · normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action.  8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.    27 March 2014

Whether or not its a shot across Grayling bows its certainly a shocking waste of money http://t.co/6wykOU5XK6 and all to satisfy G's vanity
— Mark George (@Mark_George_QC) May 21, 2014

No one should be surprised at the Government displaying bad faith on public defenders. That's why we should not have accepted the deal.
— John Cooper (@John_Cooper_QC) May 21, 2014

If you're interested in understanding the CA decision in R v Crawley, I couldn't recommend this post more http://t.co/bDgj0b9S4k #OpCotton
— Daniel Hoadley (@DanHLawReporter) May 22, 2014