Chris Grayling is embroiled in a battle with the criminal bar (Photo: GEOFF PUGH)
Our justice system is being paralysed, but we shouldn’t yet permit large cases to collapse because of it. That is, effectively, the ruling today of three judges in the Court of Appeal, led by Sir Brian Leveson, on the case that has become known as Operation Cotton (R v Scott Crawley and others).
The ruling will give momentary relief to Chris Grayling, the Lord Chancellor and Justice Secretary, who is currently embroiled in a heated battle with the criminal bar: it would appear that he has not yet brought the UK criminal justice system down around his ears. None the less, great chunks of masonry are still hanging by a thread, with little prospect of immediate repair.
You might remember that Operation Cotton, a complicated £4.5 million fraud trial, was stayed by Judge Anthony Leonard on May 1 on the basis that the defendants could not secure adequate legal representation (a point eloquently argued on a pro bono basis by Alex Cameron QC, the Prime Minister’s brother). This impasse was due to Grayling’s decision to cut barristers’ legal aid fees on Very High Cost Cases (VHCCs) by 30 per cent, and the barristers’ subsequent decision to refuse such cases.
That ruling was a serious embarrassment for Grayling. It was appealed, and today the Court of Appeal reversed it, finding that the case should instead be postponed until enough barristers could be found to do it. That will be a temporary relief for Grayling, although the problems that led to this shambles have by no means gone away, and even more glaring contradictions have been exposed in the course of it.
The Court of Appeal – preferring to live in hope rather than expectation – found that a “stay” was a disproportionate measure, since some resolution over fees with the Criminal Bar may be found, or the Public Defender Service may be expanded to cope with demand. It did not, however, rule out the possibility of a “stay” in the future.
You might not have heard of the fledgling Public Defender Service, or PDS, but it has emerged as Mr Grayling’s Plan B if self-employed criminal barristers keep refusing to run with his ball. In an MoJ argument submitted to the Court of Appeal, it emerged that “the Government is ready to place advertisements as soon as the weekend, and headhunters have been retained on a contingency basis to secure senior counsel”. I wonder how much those headhunters cost the taxpayer? They don’t come cheap.
This was described by the MoJ in its representation as an “emergency measure” to keep the justice system running. Some might say it is a wholly predictable emergency of the Justice Secretary’s own making.
The existing PDS barristers, small in number, are effectively employed by the state, which provides them with a pension, sick pay, holiday pay and all the other perks which members of the criminal bar presently provide for themselves. As such, the PDS is considerably more expensive for the taxpayer.
Since the raison d’être of the legal aid cuts in the first place was ostensibly to save the taxpayer money, you might find this confusing: I know I do.
The cost of employing a QC at PDS for a year is £125,000, rising to £173,328 when state-paid expenses are taken into account. The cost of employing a QC to work on a VHCC case full-time for a year at the old rates is £145,578, out of which they will then deduct professional expenses of at least 35 per cent which they carry themselves.
It would therefore cost taxpayers £27,750 more a year to use a PDS QC on a VHCC – including very complicated fraud and terrorism cases – than it did to hire a self-employed QC at the old rates. I imagine that, over time, such excess sums would mount up to a contentious taxpayer-funded bill (unless, of course, Grayling plans to attract a very large number of barristers into the PDS and only then slash their rates dramatically as well).
As legal observers such as the forensic @JackofKent have pointed out on Twitter, 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.
In any case, the Court of Appeal – while allowing Grayling some breathing space this time round – seemed to take a dim view of how badly relations had deteriorated so far. It reminded the public that “the criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future” and that it is of the “utmost importance” that the MoJ and the professions try to “resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases.”
There is some talk that the Operation Cotton case might now go to the Supreme Court. Meanwhile, there are a number of other very complicated fraud cases in the pipeline, which will be subject to exactly the same practical problems. And over it all hangs the bitter reality that never before has a Justice Secretary expended so much time and fruitless energy in doing battle with the very people who – in any sane democracy – would naturally be on his side.