On 13th May 2014, the Court of Appeal heard, and reserved judgment in, the Prosecutor’s appeal in the Operation Cotton case. Permission was given by Leveson P for the proceedings to be filmed, but unfortunately it wasn’t possible to watch it live (but I am hoping for a highlights package at some time). There was some sterling work done by some of the people there in getting the live action out on to twitter. If you weren’t following it, Lucy Reed summarised the real time tweets on it in a storified piece, which is a good read.
The smart money, at the end, appeared to be that the Court of Appeal would allow the appeal :
We’ll have to wait and see the judgment. I think the legally correct thing to do would be to uphold the judgment on the basis that HHJ Leonard QC was right – he made a finding of fact which was not unreasonable and his conclusions on the law are unimpeachable. Once the Prosecution accept that the defendants cannot have a fair trial without representation, and this lack of representation is not the fault of the defendant, then it’s game over.
HHJ Leonard also ruled (again correctly) that if the defendants could get legal representation, then that would be sufficient, even if it is not the lawyer of their choice. The existence of the possibility of representation by the PDS is sufficient (see s27 LASPO) and they are, realistically, the only option.
What objection could a defendant have to a PDS lawyer? The question of conflict is a difficult one, but on the assumption that the courts will do anything other than stay the proceedings (a pretty safe assumption) then even if there is a cut-throat defence, I don’t think that will be a knock-out blow. The PDS can continue to act under 7.3 PDS Code of Conduct if there is “an actual or significant risk of a conflict of interest between those clients” provided that they :
- notifies the client of the conflict or risk of conflict;
- explains that the client is free to be represented by other legal representatives outside the PDS Advocacy Service;
- explains that, if the client wishes to continue to be represented by the PDS lawyer in addition to the other client or clients, each client will be protected by the enhanced confidentiality provisions referred to in 5.3 above;
- obtains written confirmation from the client that they are content for the PDS Advocacy Service to continue to represent more than one client in these circumstances.
Note that this relates to the PDS Advocacy Service which is the “advocacy service provided by a PDS lawyer on the instructions of a Provider“, with a Provider being either the PDS or a solicitors firm. This caters for the situation where the PDS advocate is instructed, even through gritted teeth, be a solicitor in private practice.
What if a client refuses to agree to the above? Well, if there is no-one else willing to act under 7.3(2) then they will be stuck with the PDS. I imagine that the Court would rule that in those circumstances a refusal to give consent under 7.3(4) to allow the PDS to continue will mean that they have voluntarily refused to avail themselves of the right to representation. In those circumstances, the state’s obligations under Art 6 are at an end – they’re (literally) on their own.
Again, because of the way that they are structured, I imagine that any attempt to say that it is reasonable to not use the PDS because a PDS advocate was instructed in Grayling’s (frankly bizarre) intervention today, will founder.
Wither the PDS?
If I am right about the existence of the PDS being sufficient in theory to cover the VHCCs (and any other cases where we may boycott – I’d have thought either-way elected ones are an eminently suitable candidate), what about the fact that there aren’t enough now?
Well, that leaves one option – PDS expansion. Grayling may go down in history as the great nationaliser (what an irony) but whether the Court of Appeal allow the appeal or not he has the political cover to do this. Even on the best case scenario where Leveson delivers the goods, that means that whilst Operation Cotton bites the dust (along with, possibly, some more embarrassing ones in September), as soon as there are enough people in the PDS, then the MoJ are in the clear.
Yes it’s more expensive, but there’s plenty of ways of massaging the budgets to hide this. I suspect the government would in any event pay more to have the ultimate control that the PDS gives them.
I guess what I am trying to say is that whatever happens with Operation Cotton in the Court of Appeal, it doesn’t change the direction of travel for the MoJ, just the timing of it. If the stay is lifted, then it can only really be on the basis that an adjournment to bulk up the PDS can cure the problem of the lack of representation. If the stay is upheld, yes we have a great victory now, but the MoJ know what they have to do, and it is the same as they have to do if they win – get recruiting.
You might say that they won’t be able to get silks, but you know that they will, if the price is right. Win or lose, the PDS is expanding and we (barristers and solicitors who aren’t currently in the PDS or CPS) have to work out what we are going to do about it, and we’re going to have to do that pretty quickly.
Or, of course, the MoJ could give up and reverse the VHCC cuts. But you don’t really think that they’ll do that do you?