Lord Chancellor v Frieze

For remuneration under paragraph 9 of the Criminal Defence Service (Funding) Order 2001, a plea and case management hearing remains such a hearing even when the defendant pleads guilty at it. No additional triable issue is required. Where a plea and case management hearing has occurred, the case falls within paragraph 9(3), rather than paragraph 9(4). The court must apply the words of the Order, even if later Crown Court practices create anomalies. It cannot rewrite the statutory scheme to accommodate procedural change.

The Lord Chancellor appealed from a decision of Costs Judge Rogers concerning the remuneration payable to Mr Frieze for representing a defendant in R v Larkin. The issue was whether the case was a guilty plea or a cracked trial under paragraph 9 of the Criminal Defence Service (Funding) Order 2001.

The defendant pleaded guilty to a lesser count at a hearing described and listed as a plea and case management hearing. The prosecution had indicated beforehand that it would accept that plea and would not proceed with the other counts. The central question was whether that hearing was a plea and case management hearing for the purposes of paragraph 9.

1. Appeal allowed. The amount awarded by the determining officer was reinstated.

2. A plea and case management hearing remains a plea and case management hearing notwithstanding that the defendant enters a guilty plea at it. Paragraph 9(3)(b)(i) expressly contemplates a guilty plea entered at the hearing. Treating every such hearing as ceasing to be a plea and case management hearing would render that provision otiose.

3. The expression has an established meaning. It does not require a triable issue, other than sentence, to remain between the prosecution and defence. The purpose of the hearing is to secure a plea and manage the case, and it may lead to different outcomes, including sentencing. The relevant practice materials and the plea and case management form were consistent with that construction.

4. On the facts, the hearing on 6 January 2006 was a plea and case management hearing. The case therefore fell to be considered under paragraph 9(3). The statutory conditions for a cracked trial were not satisfied because the relevant guilty plea and prosecutorial decision not to proceed occurred before or at that hearing. The case was consequently a plea.

5. Changes introduced by section 51 of the Crime and Disorder Act 1998, including earlier preliminary hearings and provisional trial dates, could produce practical anomalies. They did not justify departing from the clear wording of paragraph 9. Whether the provisional date amounted to a trial listing under paragraph 9(4) did not require decision, because the first ground was sufficient.

6. The court noted that the Lord Chancellor might consider amending paragraph 9 in light of changed Crown Court procedures.

• High Court (Queen’s Bench Division): appeal from Costs Judge Rogers allowed; the determining officer’s award reinstated.
• Costs Judge: treated the appeal as succeeding by applying the reasoning in Johnson, [2006] 5 Costs LR 852.