Lord Chancellor v McCarthy

For graduated-fee purposes, successive valid indictments do not necessarily create separate cases. The question is whether there were separate proceedings in the Crown Court against an assisted person on one or more counts of a single indictment. Where the prosecution serves different valid iterations of an indictment concerning the same facts, and ultimately proceeds on one while staying the others, the indictments may remain part of one case. In that event, the advocate may select an offence on the relevant indictment under paragraph 22(1) of Schedule 1 to the Criminal Defence Service (Funding) Order 2007 as the basis for the graduated fee. The assessment remains fact-sensitive.

The Lord Chancellor appealed under article 31(5) of the Criminal Defence Service (Funding) Order 2007 against a decision of Costs Judge Simons. The judge had dismissed Mr McCarthy’s appeal against a determination that counsel should receive a cracked-trial graduated fee based on a Class B offence, while directing favourable consideration of an extension of time for a separate claim based on an earlier alleged Class A indictment.

New evidence established that an unsigned indictment charging conspiracy to murder had been served on and was before the Crown Court, that a later indictment charged a Class B offence, and that the eventual joined indictment superseded the extant indictments, which were formally stayed. The central issues were whether the earlier indictment was valid and whether the successive indictments constituted one case or separate proceedings for payment purposes.

1. Appeal allowed. The court had the same powers as the Determining Officer and the Costs Judge under article 31(8) of the Criminal Defence Service (Funding) Order 2007. The orders of Costs Judge Simons were quashed.
2. The court accepted that, following service of the draft indictment on the Crown Court under rule 14.1 of the Criminal Procedure Rules, and by virtue of section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 as amended, the indictment became the indictment when served. It therefore did not require signature by a court officer to acquire that status.
3. Paragraph 1(1) of Schedule 1 to the Criminal Defence Service (Funding) Order 2007 defined a case as proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The court applied that definition, as explained in Lord Chancellor v Shapiro [2010] EWHC 1247 (QB), to the factual position established by the new material.
4. On the particular facts, there was one case involving different valid iterations of an indictment concerning the same set of facts. The prosecution ultimately elected to proceed on the joined indictment and stayed the remaining indictments. Their existence did not create additional proceedings or require payment of an additional graduated fee.
5. Under paragraph 22(1) of Schedule 1, the respondent could select the Class A conspiracy-to-murder offence on the earlier indictment as the basis for a single cracked-trial graduated fee, although the respondent ultimately pleaded guilty to an indictment containing only a Class C offence. The respondent was entitled to that single Class A fee. No party sought costs in the appeal, and any costs order made against the respondent below was quashed.

The court stressed that issues of this kind are fact-sensitive and declined to give wider guidance in the absence of fuller argument.

• High Court (Queen's Bench Division): [2012] EWHC 2325 (QB) allowed the Lord Chancellor’s appeal, quashed the Costs Judge’s orders and awarded the respondent a single cracked-trial graduated fee based on a Class A offence.
• Costs Judge Simons: on 14 June 2011 dismissed the respondent’s appeal against the Determining Officer’s Class B fee determination, but directed favourable consideration of an extension of time for a claim concerning the earlier indictment.