After Cotton, what next?

The powerful and carefully reasoned ruling of His Honour Judge Leonard QC in Operation Cotton is the talking point of the week for many criminal lawyers. A few points need to be set out, principally the acceptance by all sides that very serious fraud cases cannot go ahead with unrepresented defendants. Second, at the time of the ruling, the Judge considered that there would not have been sufficient advocates from any source in a position to conduct the defence cases by a specific time for trial.

That is not to say that in another similar case at an unknown date in the future a Silk or Silks and appropriately experienced Juniors from the Public Defence Service would not be available. That frankly is a continuing risk or possibility, depending on your point of view.

It goes without saying that it was an utterly independent ruling. But how will it be perceived in rival quarters?

Cut to the Farage Bar in some quiet Surrey hostelry. Two members of the Criminal bar are lifting a pint glass to the Court with a quiet degree of satisfaction. Let us eavesdrop for a few moments…

Serves them right. Thinking they could trample all over us with cuts of 30%. Bloody ridiculous.

Quite agree. But doesn’t it show the Bar at its best? Absolute unity. We said we would not work at those rates and over seventy sets held firm. And the idea that the Public Defence lot might cover doesn’t strike me as very likely. Haven’t got the experience and haven’t got the numbers.

Well, not at the moment.

Quite. But hasn’t he said there are no plans to expand them?

True. But how long will that last?

At which point, silence overcomes the snuggery until the need for another pint.

At a discreet club in St James, two mandarins were taking a rather different perspective.

Humphrey, time the bar was sorted out once and for all.

Abolished or fusion?

Don’t care. But this time they are far too uppity. Completely upsets the apple cart if they won’t do the work. Take these VHCCs, for example. Causing mayhem I gather in the Ministry. No money to bulk up the PDS.

Who do they think they are?

Quite. What year is this?

’61. Your shout, I think…

Both complete caricatures, of course. But a detached observer may scent danger in both positions. Plainly it is not in the public interest for those charged with serious and complex offences to remain unrepresented or represented at a lower level than the case demands. Equally such cases need to be heard. A stay is exceptional, but who can say that a similar position will not occur again in the near future? Public and political reaction will be mixed as usual. The real point is that the stakes are high for both sides if the present impasse continues.

And if no move, then what? Sweet fa and an enlarged public defence service? Not I think in the best interests of the independent bar. So what then?

Well more talking, for a start. And then a sensible resolution. Would the heavens fall if the cut was 10 %, sweetened by refreshers paid on the nail every week or fortnight?

Same also for preparation, sensibly and realistically overseen. I once had a Case Controller who was both realistic and professional and we never fell out. And a guaranteed regular payment is a very tasty carrot.

Just a thought.

Nigel Pascoe QC

PS. I would be interested to hear of any other practical ideas to deal with the VHCC issue apart from mine. No one wants a cut. Of course we can maintain our present stance and say to them – you caused the problem, you sort it.

That is a very understandable response, with which I have sympathy. Or we may expect an adverse response and be prepared to anticipate and respond. In the present economic climate, I prefer a plan B. This has the potential to be an even bigger and more serious issue and confrontation. It is not treachery to think about solutions. NP


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