Operation Cotton, as it has become known colloquially, or more properly R v Crawley and Ors is fast become the modern day Jarndyce and Jarndyce of Bleak House fame. It will be spoken of in 100 years from now. The case for which the Magna Carta died in vain.

Contrary to popular opinion, the case is not about Chris Grayling v The downtrodden criminals of this world, nor is it about the excessive median rate paid to barristers, providing you include the ludicrous sums earned by commercial QCs advising in city takeover bids. It is actually quite difficult to find out what the original case was about – so overtaken by topical events surrounding the case has it become.

18 months ago, Mr Crawley and 4 colleagues were arrested by the police and charged with conspiracy to defraud ‘vulnerable’ members of the public in a complex boiler room scam. The deals offered opportunities to snap up plots of undeveloped land in the expectation that it would be sold on to a major supermarket or similar at a massive profit. In fact eight men were arrested – the five defendants in the current trial and a further 3 in a new trial expected to commence in January 2015.

Boiler room scams centred on land deals were a popular pastime prior to 2012; at one time there were around 175 a year being reported to the old FSA, now the FCA. Last year there were just six. This case is the first to be prosecuted by the FCA. So why is there so much interest in what is obviously the tail end of a popular fraud?

Because, as is the way in many fraud trials, all the assets of the defendants had been frozen. That meant that they were eligible for legal aid in order to fund a barrister capable of coping with the complexities of their trial. The volume of papers prepared by the Financial Conduct Authority in order to prosecute Mr Crawley and his fellow defendants amounts to some 46,030 pages. There are 194 excel spreadsheets with a combined total of 864,200 lines of entry. The Case Summary alone covers 55 pages. You need an experienced barrister with knowledge of major fraud trials to stand a chance of defending yourself against such a volume of evidence. Their trial has been split into two, apparently to reduce the amount of time needed to read through all the papers and thus take it out of the band where it is necessary to employ a QC.

Sadly, Mr Crawley’s trial collided with Chris Grayling’s efforts to persuade the lowest paid rung of the legal aid barristers – the criminal bar – to take a further pay cut. They declined. In a show of solidarity, they all returned their briefs in what are known as the ‘Very High Costs Cases’ where rates had been cut by 30%. R v Crawley and Ors became a cause célèbre when the Prime Minster’s brother, Alexander Cameron QC stepped into the latest hearing to represent them free of charge, arguing that they could not receive a fair trial without adequate representation.

His Honour Judge Leonard QC agreed and ‘stayed’ the case. His Honour is having a busy year – currently presiding over Rolf Harris’s trial, with Dave Lee Travis due back in his court anytime, and Max Clifford only recently having vacated the dock, one imagines that he may not be ‘call me Mr Popular’ at either the CPS or the MOJ. He seems too keen on old fashioned justice being a bulwark against the power of the Crown to appeal to the modernisers at the CPS.

The Crown appealed, and Sir Brian Leveson sitting in the Queen’s Bench Division saw no reason why, if there were no independent barristers able or willing to take the case for the defence, that the Crown shouldn’t act as both prosecution and defence, and the defendants forced to take one of those barristers for whom the lure of the new ‘Public Defender Service’ had proved irresistible.

You will have gathered by now that the hapless defendants are mere pawns in this game. Nobody has yet heard more than a brief outline of the actual case against them. They are trapped, and have been for eighteen months, between a good old fashioned ‘improvised’ union row, an ambitious Lord Chancellor, out to deliver twice the austerity cuts that have been demanded of his department, and the allegedly ‘scabby’ criminal lawyers who have signed up to work for the Crown in the hastily formed Public Defenders Service.

Although Grayling’s actions were made in the name of austerity – QCs (there are now three of them!) at the new PDS service are paid at the rate of £125,000, rising to £173,328 when state-paid expenses are taken into account. The cost of employing a QC to work on a VHCC case full-time for a year at the old rates is £145,578, out of which they will then deduct professional expenses of at least 35 per cent for the overheads they pay themselves. That looks like £27,750 more expensive to me.

The defendants may or may not be guilty. They have waited eighteen months to find out. They will have no redress for the stress, financial burden and emotional difficulties placed upon their families if they turn out to be innocent. At least they only had to wait for six months after arrest to find out if they were going to be charged. 18 months on police bail is becoming the norm. Only having a competent defence if you can afford the £250,000 average cost is becoming the norm.

800 years after the Magna Carta was signed, we seem to have developed a legal system which is more efficient at punishing alleged wrongdoers before and during their trial, than it is after.

Tagged as: Operation Cotton, R v Crawley