In early May, a judge at Southwark Crown Court ruled that the trial of five individuals allegedly involved in a land banking scam – known as Operation Cotton – be abandoned on the basis that there was no prospect of the defendants receiving a fair trial.

Alexander Cameron QC, for the defendants, argued the trial should be halted because the cuts to the legal aid budget meant the defendants could not be represented sufficiently, harming their right to a fair trial. Judge Anthony Leonard agreed with Mr Cameron’s submissions and stayed proceedings.

The decision was of great concern to the Financial Conduct Authority (FCA), as it questioned whether complex fraud cases, such as the prosecutions of those accused of rigging the Libor interbank rate and Operation Tabernula, the FCA’s biggest insider trading case, could go ahead despite defendants being unable to find legal representation.

Following an appeal by the FCA however, the Court of Appeal overruled Judge Leonard’s decision and in doing so, returned the case to the lower court. Lord Justice Brian Leveson, who led the three-judge panel stated:

“We have reached the clear conclusion that this ruling does 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 [Judge Anthony Leonard] based on the evidence and, in any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him. Pursuant to section 66(1) and (2) of the Act, the ruling is reversed and we order that the proceedings on this indictment be resumed in the Crown Court at Southwark”.

Following the judgment, the FCA released a brief statement welcoming the ruling:

“The FCA is committed to pursuing criminal action in appropriate cases and is pleased that this case can now proceed towards trial.”

With other complex fraud trials, due to begin between September this year and September 2015, Andy Slaughter, MP Shadow Justice Minister believes the problems are far from over:

“This will prove to be a hollow victory for Grayling. It will prove difficult to provide representation from the PDS for the Operation Cotton trial alone.

With at least seven more complex fraud trials already in the queue, the same problem will arise time and again unless he is prepared to expand the PDS dramatically.

And even if he is able to recruit sufficient counsel with the requisite skills and experience, this will undermine the independent bar and cost the MoJ a lot of money.”

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