Crawley and Others, ‘Operation Cotton’ [2014] EWCA Crim 1028; [2014] 2 Cr. App. R. 16

In R v Crawley and Others (‘Operation Cotton’) [2014] EWCA Crim 1028 the President of the Queen’s Bench Division, Sir Brian Leveson, Lord Justice Davis and Lord Justice Treacy allowed an appeal by the Financial Conduct Authority against a stay of proceedings ordered by His Honour Judge Leonard QC at Southwark Crown Court and directed that the prosecution resume.

The respondents Scott Crawley, Dale Walker, Daniel Forsyth, Aaron Petrou and Brendan Daley had been charged with conspiracy to defraud, possessing criminal property and offences under sections 19, 23(1) and 177(4)(a) of the Financial Services and Markets Act 2000 arising from an alleged land banking scheme operated between 2008 and 2011. The Crown alleged that the respondents had acquired or purported to acquire sites which were then divided into sub-plots marketed to members of the public, often vulnerable, by means of false representations as to the nature of the companies, planning permission, potential purchasers and prior success. The trial was due to commence on 6 May 2014 with a time estimate of two and a half to three months. The volume of evidence was substantial, comprising some 46,030 pages and 194 Excel spreadsheets with a combined total of 864,200 lines of entry.

The case was classified as a Very High Cost Case and representation orders were made on 10 July 2013. In September 2013 the Ministry of Justice announced reductions in legal aid remuneration including a thirty per cent cut in VHCC rates. The Bar Standards Board removed the deemed reasonable remuneration provision for VHCCs with effect from 6 January 2014. Although the Ministry of Justice subsequently granted a concession for trials commencing before 31 March 2014, this case fell outside that exception. Counsel declined to accept instructions on the reduced terms. An offer to declassify the case to bring it within the Graduated Fee Scheme was rejected because remuneration for the volume of pages beyond 10,000 would only be determined ex post facto without guarantee of payment. By the eve of trial none of the respondents had been able to secure representation. The Public Defender Service had begun recruiting employed advocates but at the date of the hearing had insufficient numbers to cover all pending VHCCs.

On 28 April 2014 Judge Leonard stayed the prosecution as an abuse of process. He held that the respondents could not receive a fair trial without representation and that there was no realistic prospect of sufficient advocates being available in the foreseeable future. He found that to allow the State an adjournment to remedy its failure to provide the necessary resources would constitute a violation of the process of the court. He concluded that even if wrong on that point, there was no realistic prospect that sufficient advocates would be available for a trial in January 2015. The FCA gave notice of appeal under section 58 of the Criminal Justice Act 2003.

Sir Brian Leveson gave the judgment of the court. He set out the two categories of abuse of process identified in Attorney General’s Reference (No. 2 of 2001) [2004] 2 AC 72: cases where the accused can no longer receive a fair hearing, and cases where it would be unfair to try the accused or necessary to protect the integrity of the criminal justice system. The threshold for a stay was high and it was a remedy of last resort, particularly where fairness could be cured by expedition or adjournment. The second category, concerning integrity, had arisen in cases involving very serious malpractice or unlawfulness and would be very exceptional.

The court held that the judge had erred in concluding that proceeding amounted to a violation of the process of the court. The FCA was by statute not to be regarded as acting on behalf of the Crown and had operational independence with no responsibility for legal aid policy. It was wrong to link the FCA as prosecuting authority with those responsible for legal aid provision and to speak of the State benefiting from its own failure. The responsibility of the Lord Chancellor to provide legal representation arose irrespective of the cause of the problem, whether it resulted from a decision to reduce fees or from any other source. To conclude that the State had violated the process of the court or jeopardised the integrity of the criminal justice system, as opposed to its effective operation, was wrong as a matter of principle.

The court further held that the judge’s alternative finding that there was no realistic prospect of a fair trial was not sustainable. At the date of the hearing the Public Defender Service had a sufficient pool of advocates, including Queen’s Counsel, who would be available for a trial adjourned to January 2015. The judge had found at paragraph 59 of his judgment that the solicitor was entitled to delay instructing advocates only so long as that delay did not jeopardise the date set for trial and the ability of advocates to be trial ready. That important qualification had been lost sight of in his ultimate conclusions. The judge had found at paragraph 79(f) that there was no realistic prospect that the Bar would accept contracts in VHCC cases on the present terms. On that basis it was illogical for him in the following sub-paragraph to countenance delay in instructing advocates until October 2014 in order to choose from a wider pool. Such delay would be calculated to jeopardise the trial date and was inconsistent with his own reasoning. The Public Defender Service had made plain that its advocates would be assigned on a first come first served basis, so prompt action by the defence was necessary to secure their services.

The court rejected the judge’s reliance on the use of court time and the effect of adjournment on other cases. Although the problems were exceptional and resulted from the breakdown of relations between the Bar and the Ministry of Justice, the trial window would not be wasted and other trials would be brought on earlier. The resulting shortfall in court time should be comparatively modest and did not support the draconian step of a stay. The court also rejected the judge’s observation that the victims of the alleged crime had other methods available to recover their losses civilly and that regulatory offences could be brought which might not meet the gravamen of the conduct but could mark out the alleged misconduct. Where authorised regulators had determined that it was appropriate to commence criminal proceedings, civil litigation and regulatory action alone would not normally sufficiently address the legitimate aspirations of victims that those who had defrauded them should be brought before the criminal courts. The suggestion that the prospect of these other forms of action lessened the imperative to pursue prosecutions properly brought was wrong.

The court considered whether the ruling was wrong in law, involved an error of law or principle or was unreasonable within the meaning of section 67 of the Criminal Justice Act 2003. It concluded that the ruling involved errors of law or principle and in any event was not reasonable in that a number of the conclusions were not reasonably open on the evidence and the ultimate finding did not constitute a reasonable exercise of discretion. Pursuant to section 66(1) and (2) of the Act the ruling was reversed and the court ordered that proceedings on the indictment be resumed in the Crown Court at Southwark. There was no question of a present breach of Article 6 of the European Convention on Human Rights and should that state of affairs arise in future there would be remedies short of a stay that could be deployed. The court recognised that a time might come when it would be appropriate to order a stay, but that time remained very much in the future and problems about representation would have to have developed considerably before such an exceptional order could be justified. It would be a matter for the judge to assess on the basis of how matters stood at that point in time.

In short, the stay was set aside because the judge had wrongly treated the unavailability of independent counsel as a violation of the process of the court and had unreasonably concluded that there was no realistic prospect of a fair trial when Public Defender Service advocates were in fact available for a trial adjourned to January 2015.

Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42
Mullen [2000] QB 520
Latif & Shahzad [1996] 1 WLR 104; [1996] 2 Cr App R 92, [1996] UKL 16, [1996] 1 All ER 353
Maxwell [2010] UKSC 48; [2011] 2 Cr. App. R. 31, [2011] 1 WLR 1837
Warren v Attorney General for Jersey [2012] 1 AC 22
Spiers v Ruddy [2008] 1 AC 873
Campbell & Ors [2009] EWCA Crim 997
Attorney General’s Reference (no.2 of 2001) [2004] 2 AC 72

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