The Lord Chancellor v Shapiro

Under the Criminal Defence Service (Funding) Order 2007, the phrase “every case on indictment” refers to proceedings in the Crown Court on one or more counts of a single indictment. A preliminary hearing in proceedings sent under section 51 of the Crime and Disorder Act 1998 therefore falls within the Advocates Graduated Fee Scheme only if an indictment existed when the work was done. The absence of an indictment places the work outside the Scheme, but does not confer any power to award an ex post facto fee where the 2007 Order contains no such provision. The resulting gap in remuneration cannot be repaired by judicial redrafting or purposive interpretation. It requires amendment of the Order.

The respondent barrister attended a preliminary hearing in the Crown Court and held a conference with his client after proceedings had been sent for trial under section 51 of the Crime and Disorder Act 1998. No indictment had been signed at that time.

The Determining Officer treated the work as included in the basic fee under the Advocates Graduated Fee Scheme. Costs Judge Rogers, relying principally on R v Smith [2004] 2 Costs LR 348, held that the work fell outside the Scheme and should be assessed ex post facto. The Lord Chancellor appealed. The issues were the construction of “every case on indictment” in the Criminal Defence Service (Funding) Order 2007 and whether the Order authorised ex post facto payment.

1. The appeal was allowed to the limited extent that Costs Judge Rogers had no power under the Criminal Defence Service (Funding) Order 2007 to assess and award ex post facto remuneration for the preliminary hearing, conference or expenses.

2. The 2007 Order differed materially from the 2001 Order. It provided only for graduated or fixed fees, apart from the limited discretion in paragraph 17(4) and (5) of Part 4 of Schedule 1 concerning appeals, committals for sentence and breach hearings. Section 18 of the Access to Justice Act 1999 did not create an independent power to pay sums outside the Order.

3. The definition of “case” in paragraph 1(1) of Part 1 of Schedule 1 applied throughout the Schedule. Accordingly, “every case on indictment” in paragraph 2(1)(a) meant proceedings in the Crown Court against an assisted person on one or more counts of a single indictment. The court rejected the proposed construction of “every case to be tried on indictment” as an impermissible redrafting of the Order.

4. The references in paragraphs 2(7) and (8) and paragraph 18 to proceedings sent or transferred to the Crown Court created specific provisions for discontinuance and dismissal. They did not establish that every preliminary hearing was within the qualifying criteria. If an indictment existed at the time of the hearing, the work would fall within the basic fee under paragraph 8 of Part 4. If no indictment existed, the work fell outside the AGFS, but the Order supplied no alternative payment mechanism.

5. The same conclusion applied to the conference held at court. It was not one of the conferences specified in paragraph 16(1), and there was no power to award an ex post facto fee where the proceedings were outside the AGFS.

6. The unsatisfactory gap, including the absence of any express treatment of preliminary hearings, could be corrected only by amendment of the 2007 Order. The assessment of £216.40 was reversed. No order for repayment or costs was required.

• High Court (Queen’s Bench Division): appeal from the written decision of Costs Judge Rogers dated 27 February 2009. The appeal was allowed only to reverse the ex post facto assessment and award.