The Financial Conduct Authority (FCA) has won its appeal against the stay in the very high cost case fraud trial known as Operation Cotton, with the Court of Appeal ruling that proceedings should resume.
R v Crawley & Others
The fraud case R v Crawley & Others is being prosecuted by the Financial Conduct Authority (FCA) and was due to begin in late April 2014. Such a complicated prosecution, with more than 100,000 items of evidence, would normally require 16 defence barristers with two for each defendant. The trial Judge HHJ Leonard had ordered a stay in proceedings due to the fact that the defendants, who are accused of fraud and other criminal offences connected to a land banking scheme, could not find barristers to represent them. The judge said there was no realistic prospect that the defendants could find “competent advocates” prepared to take the case on under the new fee regime imposed by the Ministry of Justice (MoJ) for Very High Cost Cases (VHCCs).
In a judgment handed down this morning Sir Brian Leveson, the president of the Queen’s Bench Division sitting together with Lord Justices Davis and Treacy, gave the FCA leave to appeal against the stay in proceedings ordered by His Honour Judge Leonard QC in Southwark Crown Court on 1 May 2014.
However, the Court of Appeal commented that the feud between the Ministry of Justice and the independent bar over fees in publicly funded cases needed to be resolved in order to maintain the criminal justice system.
In a statement accompanying today’s judgment, Leveson P said:
“We conclude that these findings cannot be sustained and that it was not reasonable for [the judge] to reach them. In those circumstances, we order that the proceedings on this indictment be resumed in the Crown Court.”
The Court of Appeal said that Leonard’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.”
Public Defender Service
In his judgment Leveson P found that there would have been sufficient number of advocates available within the Public Defender to enable a trial to take place in January 2015.
In its conclusion, the CoA panel said that the dispute between the bar and the Lord Chancellor was a “commercial negotiation in which (short of legal challenge) the judiciary can play no part”. However the judges added that the criminal justice system required high-quality advocates to prosecute and defend cases:
“We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.”
In a statement following the ruling the FCA said:
“The Financial Conduct Authority (FCA) welcomes the Court of Appeal’s decision in the case of Crawley and others. The FCA is committed to pursuing criminal action in appropriate cases and is pleased that this case can now proceed towards trial.”