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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 >> Murphy, R. v [2025] EWHC 644 (SCCO) (17 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/644.html Cite as: [2025] EWHC 644 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		17th March 2025

The appeal has been unsuccessful, for the reasons set out below.

Costs Judge Whalan:

Introduction
1. Mr Samuel Panniah ('the Appellant') appeals the decision of the Determining Officer at the Legal Aid Agency ('the Respondent') in relation to a claim submitted under the Advocate's Graduated Fees Scheme ('AGFS'). The issue in dispute concerns the Banding of Offences in the Criminal Legal Aid (Remuneration) Regulations 2013 ('the 2013 Regulations'). The Appellant has claimed a fee based on Band 11.1, whereas the Respondent has assessed the case as Band 11.2.
Background
2. The Appellant represented Mr Andrew Murphy ('the Defendant'), who was charged with a co-defendant at Sheffield Crown Court on an indictment alleging a single count of robbery, under s.8(1) of the Theft Act 1968.
3. It was alleged that on 22^nd January 2023 the Defendant and Jacqueline Williams robbed Stephanie Bennett of £20 in cash. The victim, in her Witness Statement, described a prolonged physical assault, in which she was pulled to the ground by her hair. Then:

Jacqueline stopped trying to pull to the ground and at that point, she pushed herself against my back and said that she had a bat. I know Jackie does usually carry a bat tucked under her coat and when she pushed herself against me, I did feel a long thin item which was beneath her clothing, and it was hard. From knowing Jacqueline, I am confident that the object I felt was a bat, however I did not see a bat.

The Regulations
4. The Advocate's Graduated Fees Scheme Banding of Offences Document provides for two relevant bands as follows:

Band 11.1: Aggravated burglary, burglary with intent to GBH or rape, and armed robbery.

Band 11.2: Indictable only burglary, other robberies.

5. Section 8(1) of the Theft Act 1968 provides:

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, uses force on any person or puts or seeks to put on the person fear of being then and there subjected to force.

There is no specific statutory offence of armed robbery. Sub-paragraph 5(1) of Schedule 1 to the Serious Crimes Act 2007, however, purports to define armed robbery for the purposes of sentencing. This refers to a robbery under s.8(1) of the Theft Act 1968 'where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon'. In that context 'offensive weapon' means any weapon to which section 141 of the Criminal Justice Act 1988 applies, as specified in the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. This Order (as amended) specifies weapons that are largely offensive per se, such as swords, knives, knuckledusters and the like.

Case Guidance
6. In R v. Stables (1999) CJG 3, a case which informed the original Graduated Fees Scheme Guidance, armed robbery/robbery was defined as follows:

(a) A robbery where a defendant or co-defendant to the offence was armed with a firearm or imitation firearm, where the victim thought that they were so armed – although it subsequently turned out that he was not – should be classified as an armed robbery.

(b) A robbery where the defendant or co-defendant to the offence was in possession of an offensive weapon, namely a weapon that had been made or adapted for use for causing injury to or incapacitating the person, or intended by that person having it with him for such use, should also be classified as armed robbery. However, where the defendant, or co-defendant, only intimates that they are so armed, the case should not be classified as an armed robbery.

7. In R v, Kendrick [2011] SCCO Ref: 259/10, CJ Gordon-Saker considered a robbery in which the assailant approached the victim while carrying an empty wine bottle and saying: "I'll count to five. If you don't give me your phone I'll bottle you". There was a struggle and the victim handed over his phone and a ring. CJ Gordon-Saker, having noted that the 2007 Act post-dated the decision in R v. Stables (ibid), concluded that the offence was a robbery and not an armed robbery. He stated:

14. I accept that a bottle may be an offensive weapon if it is intended by the person having it with him for use for causing injury. The fact that a weapon such as a bottle is used in a robbery may be an aggravating feature for the purpose of sentencing, that does not make the offence one of armed robbery.

…

16. It seems to me, pace the Commissions Guidance (which is not binding on me), that robbery with a weapon which is not a firearm, an imitation firearm, or an offensive weapon as defined in the 1988 Order, is not armed robbery for the purpose of the table of offences in the 2007 Act and the 1988 order. This would seem to accord with common sense and usage. In certain circumstances a plank of wood could be an offensive weapon (for the purpose of the 1953 Act) but few people would I think describe robbery with a plank of wood as armed robbery.

8. In the linked cases of R v. Day [2019] SCCO Ref: 173-18 and R v. St. Martin [2019] SCCO Ref: 141/15, CJ Rowley considered the same issue. In Day, the robbery concerned the theft of the victim's backpack 'containing various items', during an incident in which the offenders assaulted their victim 'by hitting him over the head with one of their [motorcycle] helmets'. In St. Martin, the victim's mobile phone was stolen, during an assault in which she as punched, kicked and hit repeatedly with a wooden chair wielded by one of his assailants. CJ Rowley, in concluding that the offences were armed robbery and not robberies, relied on the 'Stables definition', and not the 'Kendrick line of authority'. He stated that the 1988 Order 'cannot possibly be exhaustive' and that the offensive use of a motorcycle helmet and/or chair as an offensive weapon, led to the conclusion that they should be categorised as armed robbery within the meaning of the 2013 Regulations.
9. In R v. Kapoor [2024] EWHC 1316 (SCCO), CJ Leonard considered a case which the defendant was charged (with two named co-defendants) with conspiracy to rob. The statement of agreed facts stated:

Force, threatened violence and actual violence, variously, were features of the robbery offences. Some of the victims feared or suspected that one or more of the robbers were carrying weapons. On at least two occasions, one of the robbers indicated to a victim that he was carrying a knife, but no weapons were ever produced.

CJ Leonard, at para. 26 of his judgment, agreed specifically with the conclusions of SCJ Gordon-Saker in R v. Kendrick (ibid): There is a statutory definition of armed robbery, which insofar as it involves offensive weapons is limited to offensive weapons of a particular kind"

The submissions
10. The Respondent's case is set out in Written Reasons dated 30^th July 2024. The Appellants' case is set out in detailed Grounds of Appeal. The Appellant has asked that his appeal be determined on the papers and without an oral hearing. On 19^th December 2024, I directed that any further written submissions of the parties must be exchanged and uploaded to the CE file by 31^st January 2025. No further submissions have been filed; indeed, on 31^st January 2025, the Respondent noted that 'the LLA had decided not to make any further submissions'.
My analysis and conclusions
11. The prosecution case, set out at its highest, states that the victim thought that the Defendant's co-accused was carrying a hard, cylindrical 'bat' concealed within her clothing, which she used as an implied threat of violence. I much prefer the conclusions set out in the Kendrick/Kapoor line of cases, to those in the Day/St Martin cases. It seems to me that the statutory framework provides effectively for a definition of armed robbery, insofar as it involves offensive weapons, with reference to offensive weapons of a particular kind, namely those specified in the 1988 Order. A 'bat' could be an offensive weapon in certain circumstances and its presence and/or implied use in a robbery could well be an aggravating feature at sentencing. I agree, nonetheless, with CJ Gordon-Saker, namely that few people would describe robbery with a concealed 'bat' as an armed robbery.
12. Accordingly, for the reasons set out above, the appeal is dismissed.