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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Prior v The Lord Chancellor [2024] EWHC 2531 (SCCO) (04 October 2024) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2024/2531.html Cite as: [2024] EWHC 2531 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

IN THE MATTER OF: R. v Anthony
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013/Regulation 10,
of the Costs in Criminal Cases (General) Regulations 1986

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		4 October 2024

The appeal has been unsuccessful for the reasons set out below. There shall be no order as to the costs of the appeal.
1. The Defendant had the benefit of a representation order dated 1 February 2023. He was charged with three offences of reckless arson and one offence of arson with intent to endanger life.
2. In this intended appeal the Appellant, seeks to argue that the Determining Officer was wrong to determine that the fee payable under the Graduated Fee Scheme (pursuant to the Criminal Legal Aid (Renumeration) Regulations 2013) was on the basis of guilty plea rather than as a 'cracked trial'.
3. Written reasons for the Determining Officer's decision were given on 25 March 2024. The Appeal Notice was lodged on or about19 June 2024. The hearing was by videolink on 19 September 2024.
4. The Appellant is a barrister and a Advocate under the scheme. He relied on written submission in a Note dated 5 September 2024 which, I understand, had been served on the Respondent on the same date and made oral representations at the hearing. The Respondent, effectively the Legal Aid Agency ('LAA'), were unrepresented at the hearing and relied on the decision and reasons of the Determining Officer.

Provisions relevant to the issues arising

- time limits for appealing

4. Regulation 29 of the 2013 Regulation provides:

Appeals to a Costs Judge

(1)  Where the appropriate officer has given his reasons for his decision under regulation 28(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.

(2)  Subject to regulation 31, an appeal under paragraph (1) …. must be instituted within 21 days of the receipt of the appropriate officer's reasons, by giving notice in writing to the Senior Costs Judge.

…

5. Regulation 31 provides:

Time limits

(1)  Subject to paragraph (2), the time limit within which any act is required or authorised to be done under these Regulations may, for good reason, be extended—

(a)  in the case of acts required or authorised to be done under regulations 29 or 30, by a Costs Judge or the High Court as the case may be; and

(b)  in the case of acts required or authorised to be done by a representative under any other regulation, by the appropriate officer.

(2)  Where a representative without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the appropriate officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and must consider whether it is reasonable in the circumstances to reduce the fees payable to the representative under regulations 4, 5 or 6, provided that the fees must not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the fees should not be reduced.

- guilty plea fee or cracked trial fee

6.  Paragraph 1 of Schedule 1 to the 2013 Regulations as amended, defines 'cracked trials' and 'guilty pleas 'as follows:

Interpretation

 

…

"cracked trial" means a case on indictment in which —

(a)  the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea and—

(i)  the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons)or the prosecution offers no evidence; and

(ii)  either—

(aa)  in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the first hearing at which he or she entered a plea; or

(bb)  in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which the assisted person entered a plea, declare an intention of not proceeding with them; or

(b)  the case is listed for trial without a hearing at which the assisted person enters a plea;

"guilty plea" means a case on indictment which—

(a)  is disposed of without a trial because the assisted person pleaded guilty to one or more counts;

and

(b)  is not a cracked trial;

Delay in issuing the claim

6. It is accepted that the appeal is out of time. The evidence available suggests it out of time by a considerable margin- of the order of about two months.
7. In the Notice of Appeal and in respect of this matter, apologies were offered for what is said to be an error on the part of administrative team at the Appellant's chambers. It is said in effect that the delay was not the fault of the Appellant and that the team had not done an appeal of this sort before.
8. I am not persuaded that these matters amount to a good reason. The Appellant did not submit there were exceptional circumstances and it is does not seem to me that there are any such circumstances. The rules are clear, and the administrative team should be aware of them. Indeed, as the Appellant very properly volunteered, it is counsel's responsibility to ensure that the clerking or administrative team knew the rules.

Cracked trial/guilty plea.

-the facts

9. The Appellant says there were two Plea and Trial Preparation Hearings ('PTPH's). The Determining Officer refers to only one, on 5 April 2023. It does not perhaps matter. It appears the Defendant was not arraigned at the PTPH on 5 April - or indeed if there two PTPHs, at either. It appears in any that so far as the hearing on 5 April 2023 was concerned, this was because of concerns about the mental health of the Defendant and as to whether the Defendant was fit to plead. At that hearing the case was listed for trial in week commencing 31 July 23 with a review hearing to be listed on 31 May 2023 and provision was made for a psychiatric report to be obtained.
10. There were some delays in obtaining the report but the case was listed for a Mention on 21 June 2023 when, as I understand it a report was available. On that date the Defendant entered as I understand it acceptable guilty pleas of simple arson, in any event to lesser offences to those charged. Sentencing took place on 25 June 2023.

-argument and reasons for the decision

11. It is clear that there are two limbs to consider in deciding whether there has been a 'cracked trial' under the Regulations, as Costs Judge Leonard explained in R v Barzey [2022] EWHC 1775 (SCCO), The first requires, before any other condition is met, that the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea ('limb (a)') . The second is where a case is listed for trial without a hearing at which the assisted person enters a plea ('limb (b)').
12. The Determining Officer rejected the case on both limbs and, referring to R v Brazey made clear, that on her reading of the provision in accordance with that decision it could not be said that the case was listed for trial without a hearing at which the assisted person enters a plea because there had been a hearing at which the defendant had entered into a plea, the Mention hearing.
13. As Judge Leonard notes, limb (b) might be read in one of two ways: that there is no hearing at which the assisted person enters a plea, or that there is such a hearing, but the case is listed for trial before it takes place. If the latter were right the Appellant would succeed because it was not until after the case was listed for trial that a plea was entered. However, if the former reading is correct then the claim fails under this limb as there was a hearing at which the assisted person pleaded guilty, the Mention hearing. The Appellant did not challenge the approach of Costs Judge Leonard that the former reading is the correct one. Indeed for reasons which I set out in Marks v Lord Chancellor (otherwise known as R v Gatherar [2023] EWHC 2928 (SCCO) (and which it is not necessary for me to elaborate) I think that Costs Judge Leonard is correct. I would add that the fact that the Defendant did not attend the hearing at which the case was listed for trial cannot, it seems to me, make any difference: there was a hearing at which the Defendant pleaded guilty. Accordingly. the claim under limb (b) fails.
14. The Appellant argued at the hearing that limb (a) applied because there was an intention to enter a not guilty plea and this had been communicated to the prosecution.
15. The first and perhaps obvious point to note is that that whatever the position on the previous version of the rules (on which the Appellant initially relied in this appeal) the position is now clear (and as the Appellant accepts), limb (a) applies where "an assisted person enters a plea of not guilty to one or two counts at the first hearing at which he or she enters a plea".
16. As I understood the Appellant's case, it was that the facts of this case were very particular. He told me that the that an indication had been given at the PTPH hearing that the Defendant would be pleading not guilty. And in support of the contention that this was sufficient to put the case within limb (a), he relied upon the decision in R v Rowe (otherwise known at Rose v Lord Chancellor) [2024] EWHC 1080 as persuasive authority for the proposition that it was sufficient under limb (a) for the defence to communicate an intention to plead not guilty. In that case there no formal arraignment before trial but a clear indication had been given there would be not guilty plea and a finding that but for the unavailability of counsel a plea would have been formally recorded. The Costs Judge went on to note that in that case the prosecution thereafter offered no evidence and allowed a fee for 'cracked trial'.
17. I note that in R v Rowe the judge appears to have proceeded on the basis of what I understood to be an earlier version of the relevant provisions before amendment. In any event to my mind, there is no ambiguity which would allow a reading of the relevant provisions by which a mere intention to plead not guilty as sufficient to satisfy this limb (even one that had been communicated to the prosecution). I was not satisfied that there was any principle of statutory interpretation which would permit me to read the provisions so widely. It was not suggested that the rules were defective. Indeed it seems to me that provisions are clear and identify a clearly recognisable procedural step in criminal proceedings, the entry of a plea, as the threshold for payment of a 'cracked trial' fee. It seems to be clear on the provision that mere communication of an intention to plead not guilty is not enough.
18. I might add that it strikes me that there would be quite a number of problems with the Appellant's interpretation if it were correct. The scheme is a block rated scheme which requires the Determining Officer to determine whether certain events have occurred; a provision which might require an Officer to enquire into whether an intention to plead not guilty had been communicated might give rise to evidential complexities which might be said to be thought to be out of keeping with way the scheme operated. Further, I have a concern that if a defendant were not fit to plead, such an individual may not able to give proper instructions; indeed, I understood the Appellant to acknowledge, there might be a temptation for an advocate to give an indication without the ability to take instructions.
19. I recognise that in many cases where there is an issue as to fitness to plead, there might also be an issue as to whether the defendant had the necessary mens rea; and thus the consideration as to whether the Defendant is fit to plead might overlap with a consideration of the issue of guilt. Evidence obtained when considering fitness to plead might serve a dual purpose as it might well also go the question as to whether in this case the Defendant had the necessary intention or recklessness. But that will be a feature of many cases of this kind and even accepting that there may be significant work on the latter issue, this is not to my mind a sufficient basis to read the provision in the way suggested. It is a consequence of the scheme which block rates the work by reference to certain defined criteria (and is perhaps part of what is often referred to as to the 'swings and roundabouts' of the scheme). It cannot, I think, alter the mearing of the words in the relevant provision.
20. To my mind it is in any event clear on the plain meaning of the provsions that limb (a) cannot apply either.

Conclusion

21. Accordingly I am not satisfied that I should extend time for the appeal. The appeal would fail in any event for the reasons I have given.
22. This appeal is, accordingly, dismissed.

Costs Judge Brown