Sixteenth Letter to the Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
22nd May 2014
Re: Operation Cotton (R v Scott Crawley and others)
Dear Lord Chancellor,
I want to congratulate you on your Court of Appeal pyrrhic victory yesterday. It will make your appearance on BBC Question Time later tonight a little easier, but we both know that you are in a very tight spot here.
Let’s recap on what has happened so far in the Operation Cotton saga:
• Several men were charged with a £4.5 million fraud by the Financial Conduct Authority (FCA), the new body set up to regulate the City after the 2008 crisis.
• Defence barristers accepted briefs to defend these men under the VHCC legal aid payment scheme, and signed contracts with the Government.
• In November 2013 you, as Lord Chancellor, unilaterally announced a reduction in the barristers’ fees by 30% notwithstanding the contracts they had signed in good faith. The barristers withdrew from the case and the defendants have had no barristers to defend them since.
• At the defendants’ Crown Court trial (1st May 2014) HH Judge Leonard QC stopped the prosecution and allowed the men to go free. The FCA’s prosecuting QC accepted no fair trial could be had without barristers to defend them. The judge said it was not anticipated any barristers would agree to defend in the near future, so there was no point in adjourning.
• Lord Justice Leveson, in the Court of Appeal, disagreed and said he thought some barristers might agree to defend in the future and has allowed an appeal (20th May 2014).
• The case has been sent back in the Crown Court. There is still no one to defend the men. It remains to be seen which of the judges will be proved right.
PLAN B. You hope to expand the Public Defender Service (PDS) and so provide government employed defence lawyers for this case (and others) to replace the barristers in independent practice who are refusing to work at your cut-price rate.
What advantages for you were there in the 30% reductions?
1. The Treasury was pleased with you because the 30% cut would save the tax payer £19million a year (although this is a tiny figure in Government terms).
2. The FCA is furious with you because there are eight other VHCC trials looming including the high profile case involving the LIBOR scandal. No legal aid barrister will touch them either because of your fee cut. The FCA’s whole credibility is at stake and they cannot understand your short sightedness.
3. The Treasury’s attitude may now be turning as the FCA was a flagship organisation to show that the City can clean up its own mess and be open for fair business. The US authorities are astonished that the FCA is being prevented from prosecuting in this way.
4. However, be strong, you’ve got to understand this as tactically astute: George Osborne is basically pleased with you for cost cutting and our rich banker friends in the city are delighted with you that they can escape prying prosecutors eyes into their iffy City practices.
At the Court of Appeal hearing you paid substantial public money to Anthony Peto QC to invite the court to allow you to intervene and present fresh evidence. This, amusingly, satisfied the principle that the Government must be allowed to spend the public’s money getting the best lawyers, so that the public can be denied the best lawyers in the future. The court did not allow you to present the fresh evidence and so Mr Peto spoke for only three minutes. He said that he agreed with the submissions of the FCA (for the prosecution) that sufficient PDS lawyers would be available to be deployed. That was tax payer money very well spent! It was doubly amusing because Mr Peto had the assistance of a PDS lawyer in court to help the prosecution get their case back on track. (I suggest they now be called the PPS – Private Prosecutor Service). Let’s hope that the men charged with the fraud didn’t notice that their promised future defence lawyers were acting in direct opposition to their interests. I thought it hilarious that Mr Peto said your stance re the outcome of the appeal was “entirely neutral” and that you wanted to present evidence to influence the outcome of the appeal in the prosecution favour. Would the calling of more evidence to influence the result have helped you look more neutral?
Mr Peto told the court that adverts seeking lawyers to join the PDS now are ready to go to press this weekend and head hunters were ready to seek senior counsel. It is a startling solution for a number of reasons:
• To provide state-employed defence barristers is nationalisation – by a Tory! You are a self-proclaimed right winger preferring state employees (PDS) over free market operators (the independent criminal bar). No wonder people are confused. Are you in fact the Sir William Beveridge of the modern age? Are you a socialist dressed as a Tory? Or have you just lost all sense of perspective here?
• You said to the CBA that you had no intention of expanding the PDS in March 2014. They made an agreement with you to suspend their ‘no-returns’ strike, in part, in reliance on that assertion by you, that now turns out to be false. I wouldn’t worry about it, politics is a dirty business. No one gets to the top by acting honourably any more. It’s not for you to respect contracts signed with the Government, nor refrain from telling falsehoods to the leaders of the Bar; you’re only the Lord Chancellor for heaven’s sake.
• The rumour is true, by the way, that you asked me to verify. Those PDS lawyers who did take part in the charitable London Legal Walk failed to complete it. It got to 5.30pm, so they called it a day and clocked off as per their contract of employment.
• This plan B was described in court by the MOJ as an “emergency measure”. It’s as if you thought that the emergency was not of your own making.
• The final small problem with your strategy is that it is more expensive than that which we had when you started. I love this aspect of it the most. The SE Circuit has calculated that on the basis of the Operation Cotton brief fee (if the figures are expanded to cover twelve months) the following would be paid in a year to an experienced and highly proficient QC:
Post 30% cuts – £97,052 (minus expenses)
Before 30% cuts – £145,578 (minus expenses)
PDS employed QC – £173,328 (no expense spared)
That has made me laugh the loudest: the PDS is a MORE EXPENSIVE solution. I think I’ve got this right:
(1) You want to save the tax payer money.
(2) You put in place a strategy.
(3) The strategy backfires.
(4) You refuse to abandon the strategy.
(5) Your solution COSTS the tax payer more money.
The best, fairest, fastest and cheapest solution to this crisis would be to return to the status quo and rescind the 30% cuts to VHCC. Justice would be done, the cases could be prosecuted by the FCA, tax payers would be saved from your more expensive solution, the paralysis would be lifted. But I advise against this in the strongest possible terms. The most important thing here is not justice, not fairness, not the credibility of the FCA, not the taxpayer, nor anything else, the most important thing here is your dignity. Don’t worry about the trivial notion of something like justice, think only of your career; avoiding professional embarrassment is the ONLY thing that matters now.
Yours, puffed up with as much dignity as can be mustered in the circumstances,