Scott Crawley and seven others were accused last year of committing fraud by the Financial Conduct Authority (FCA). It is alleged that their companies, Plott UK Ltd, European Property Investments Ltd and Stirling Alexander Ltd, received in excess of £5m from investors in a series of land and property scams between 2008 and 2011. Called Operation Cotton, the men were arrested, and charged with various counts of fraud
It was when the eight men were committed to trial that the problems with Operation Cotton really started. Fraud (despite being supposedly simplified by the 2006 Fraud Act) is an inherently complicated area of criminal law. Fraud cases are rarely (if ever) handled by only skilled and specialist barristers, due to the complexity of the crimes, and how difficult it can be to get a jury to understand the facts of the case, let alone come to a coherent opinion about the case.
The prosecution for such cases is considered a “Very High Cost Case” (VHCC), which requires special funding from legal aid to provide the defence with adequate and specialist lawyers. VHCC’s are very lengthy, time consuming and complex criminal proceedings, and cover such areas as fraud, drug trafficking, and terrorism. VHCC’s are also very costly. According to official figures, in 2012- 13, £600m was spent on legal aid for criminal cases for around 128,000 defendants. Nearly 10% of that funding was spent on just 20 VHCC’s. Although a small fraction of the cases heard by judges- they are easily the most expensive cases.
Under recent cuts and alterations to public legal funding, VHCC’s were a prime target due to their cost. As such, barristers publicly funded to take on VHCC’s were paid up to 30% under the new rules (a 30% cut was actually quite generous, given that in many areas legal aid all but disappeared). However, in protests at the cuts to both VHCC funding, and to the Criminal bar overall, not a single barrister signed up to the new scheme.
Solicitors in Operation Cotton approached 70 barristers’ chambers- in vain. Turning to a special governmental team of lawyers, the Public Defender Service (PDS), the solicitors again drew a blank. The subsequent Southwark Crown Court proceedings earlier this year were rather bizarre. The prosecution was ready to prosecute, the witnesses were ready to testify, the evidence was all gathered- but the defence had no defence. Despite their being a “complex and substantial case” against the accused fraudsters, over 46,000 pages of evidence, and nearly a million lines of spreadsheet data- the defence still had no defence.
In a dramatic twist to the proceedings, Alex Cameron QC (brother to the Prime Minister), taking the case to throw out the case pro bono, argued before the judge that the interests of justice could not be served as the defendants did not have adequate defence. In a democracy, and a part of the principles and ethics underpinning the UK legal system is the concept that those accused of a crime have the right to an adequate defence in court. Without adequate defence (however that is interpreted), justice cannot be done.
Forced to apply such a ruling, Judge Anthony Leonard QC reluctantly threw out the case. Whilst acknowledging the efforts made to secure adequate legal representation for the defence, Judge Leonard stated that the PDS was “not in a position to provide sufficient representation.” In his ruling, Judge Leonard was “compelled to conclude that, 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.” Furthermore, the judge found that there was “no realistic prospect” of securing a sufficiently expert barrister to take on the case before early 2015- at which point it would be unjust for the prosecution to continue.
Although a victory for the due process of the law, it was a hollow victory, The CPS and FCA appealed the dismissal of the case. Heard a few weeks later, the stakes were very high in the Court of Appeal. Judge Sir Brian Levenson, the head of the three judge hearing, had the unenviable task of balancing the needs justice to be done, the needs of the two governmental agencies represented, and the opposing concerns of the legal profession, and the inherent right of fair representation. An unenviable task; but Sir Brian rose to the challenge admirably.
In his succinct and fairly critical verdict, he overturned Mr Justice Leonard’s decision, and ordered that the Operation Cotton case be relisted for a further hearing. According to Sir Brian, it is quite possible for a barrister to be secured for the defendants; “there [is] a sufficient prospect of a sufficient number of PDS advocates who were then available who would enable a trial to proceed in January 2015 [including] a sufficient number of advocates of the rank of QC.”
A major concern of Judge Levenson, President of the Queen’s Bench Division, was that the matter over funding and representation was standing in the way of justice, and the row between government and the legal profession (long time antagonists over various matters for many hundreds of years) was to the detriment of justice. His carefully worded, but damning, verdict urged both government and the legal profession to work together to resolve their impasse over funding and defence. Whilst admitting that a time could come where a trial has to be halted due to a lack of representation- that time was not now. The Court of Appeal was anxious to avoid such a situation to ever coming to pass.
Although resolved in the Court of Appeal, and the prosecution resumed, the dispute is far from over. Lawyers still need to be found for the defendants. Of greater importance is that the struggle between the lawyers and government over funding and legal aid is far from over. For barristers, the case was never one of whether the defendants had adequate representation; it was a statement and stalemate over public funding of criminal barristers (which is at an all time low, at a grave detriment to criminal justice). For the Ministry of Justice (MoJ), the case was simply one of whether they could get justice done paying the least possible money, under an unfair system (which is not possible, as the proceedings at Southwark Crown Court showed).
With around eight of so similar fraud cases stayed with similar issues over representation, the Court of Appeal ruling was significant. In his ruling, though, Judge Levenson was careful not to be seen to take sides (characteristic of the Levenson Report). He made it clear that the Court of Appeal found that both sides needed to work together, and that what had happened was a failure of the due process of the law, and a breakdown of relations between the MoJ and the legal profession- a very embarrassing state of affairs. Like a headmaster chiding naughty children, Judge Levenson urged both sides to try set aside their differences, and to find a resolution in this matter.
The UK has an enviable track record in legal matters, and a criminal justice system, that, although archaic, is rooted in a sense of natural justice, fairness, equality, and openness. Maintaining and upholding such traditions are of paramount importance. According to Sir Brian Leveson, retaining and upholding a “criminal justice system of which we can be proud, depends on a sensible resolution [in this case]“. Setting aside issues of natural justice, and funding, that sense of British legal tradition is essentially what is at the centre of the Operation Cotton dispute.