8 Positives to take from losing in Operation Cotton

All smiles this morning - the cat who got the cream (ITV)

All smiles this morning – the cat who got the cream (ITV)

The Court of Appeal dashed the hopes of a thousand legal aid lawyers on 21st May 2014 when they allowed the Prosecution appeal in the Operation Cotton case.

Despite my previous statement that it doesn’t matter who wins, and knowing that this outcome was really inevitable, I’ll confess to a slight annoyance when the judgement was handed down.

Still. Being a cheery, positive soul, I always try to look on the bright side of things. So on that optimistic note, here are my eight positives we can take from today.


1. We know where we stand

The lay of the land is at least clear. This may not sound much, but if you’re in a bog and slowly drowning, it may help to have a map. Ok, we’re still drowning, but, we know that it’s our fight and it’s no longer a question of waiting to see if someone bails us out along the way. We need to work out what to do, and we need to do so pretty quickly.

Where do we go? An all out strike? A return to no returns? Nominate a silk to write a strongly worded letter to the Times? It’s in our hands now.


2. This adds to our understanding of the politics of the judiciary

There is an interesting question of when an issue is a legal one, and when it is political one (see something that I wrote about Sumption’s speech on this point last year). This judgment takes a very conservative view on this particular issue. In effect it considers that, as Sumption stated, the allocation of resources is pretty much a political issue. I’d suggest that this question is now becoming an increasingly significant one.

As I’ve said before – the judiciary are political, there’s no getting round it. Sometimes neutrality is of itself a political statement. The key is finding out how the Judges think and having this all up front and open.


3. Cameron makes everything sexier

Out of context that could be the sort of headline that requires a strong application of mind bleach after reading. What I mean is that having (Alex) Cameron in a case guarantees a higher level of coverage. It also means that newspapers like the Mail have to balance the competing interests of loving Cameron whilst hating lawyers.


4. Appeals should be easier in future

Time and again the Court of Appeal have expressed great deference to the view of the individual Judge in any particular case, even when they seemingly disagree with the outcome. This leads to the slightly bizarre (to a non lawyer at least) situation whereby a Court can dismiss an appeal, even though they agree that the Judge got it wrong.

When HHJ Leonard QC gave his judgment, most people thought it was watertight – the law was right and the facts well reasoned, but it was not to be. The Court of Appeal showed a pleasant willingness to overturn a finding of fact. Hopefully this appeal indicates a slightly more relaxed attitude to interfering with a Judge’s decision to the facts?


5. The CPR may no longer be a sacred text

I used to love the Criminal Procedure Rules. Then I saw how they worked in practice, and fell out of love with them. HHJ Leonard placed a fair amount of emphasis on them when staying the case. The Court of Appeal were less concerned, which may be a welcome move forwards.

For example, in a less exceptional case that comes on for trial where the defence are not as ready as perhaps they could be, can we pray in aid what was said at para 49 “other trials (which otherwise would have been brought on later) will now be listed earlier than originally anticipated“? No harm, no foul?

Whilst that may be reading too much into it, the emphasis of doing justice, even if it involves delay must surely apply to the defence as well as the prosecution?


6. No-one need feel guilty about applying for the PDS

Time it was that if you wanted to be a specialised advocate you would do a pupillage and join a set of Chambers. Now? Not so much. If you want to be a top advocate and defend in the most serious cases, then the PDS is (one of the places) where it’s at. They’ve got the funds and they’ll get the work (due to everyone else being priced out of the market). Get sharpening those pencils!


7. Judges can still be nice about advocates

After the meat of the judgment, the Court did say some nice things about the importance of lawyers (paras 56-58). It may not have gone down too well with all, with many feeling that platitudes are still platitudes even if they’re in a judgment. And hey, no-one in the MoJ will have read that far. But, given where the Bar is heading, it’ll be a nice reminder for future historians of what was once a great profession.


8. This could be the first interlocutory appeal to go to the Supreme Court

And we all like a legal first, don’t we? There is power to go there and the Supreme Court is often more liberal than the Court of Appeal (at least with some of its constitutions), so it will be an interesting one to watch if it goes there. It should also be quick.



So there you go. Always look on the bright side of life. We’re still there. For now. In the meantime …


If in doubt, just keep calm and look at photos of cats in hats

If in doubt, just keep calm and look at photos of cats in hats


3 thoughts on “8 Positives to take from losing in Operation Cotton

  1. Pingback: Legal Cheek » Morning round-up: Thursday 22 May

  2. Pingback: We set up a Public Defender by mistake… | Lawyer Watch

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