The Lord Chancellor v Ahmed

Under the Advocates’ Graduated Fee Scheme, an offence may fall within more than one fee class where the indictment legitimately covers alternative statutory offences. The advocate may elect between equally viable classes. The paying authority may interfere only where the claim was clearly made under the wrong class. The general inclusion rule in section 3(1)(e) of the Criminal Service Funding Order 2007 does not override express distinctions between different forms of offending. Where an entry referring to a statutory provision contains no express limitation, descriptive words such as fraudulent evasion of duty do not restrict the entry to that particular factual form of offence.

The Lord Chancellor appealed under article 31 of the Criminal Service Funding Order 2007 against Costs Judge Campbell’s decision dated 16 April 2013. The Costs Judge had allowed Mr Ahmed’s appeal against the Legal Services Commission’s decision to pay him under Class B rather than Class K of the Advocates’ Graduated Fee Scheme.

Mr Ahmed had represented a defendant charged with conspiracy to contravene section 170 of the Customs & Excise Management Act 1979 in relation to the fraudulent evasion of the prohibition on importing cocaine. The indictment did not specify whether the conspiracy related to section 170(1)(b), section 170(2), or both. The central issue was whether the offence could validly be treated as falling within Class K as well as Class B.

1. Appeal dismissed. The indictment could properly be construed as covering a conspiracy to commit an offence under section 170(1)(b) as well as one under section 170(2). Importation of a Class A drug involved conduct capable of satisfying both provisions.
2. Part 6 and Schedule 1 section 3(1)(e) of the Criminal Service Funding Order 2007 were material. Section 3(1)(e) provides that an entry specifying an offence contrary to a statutory provision includes every offence contrary to that provision, unless the entry contains an express limitation. The different descriptions attached to section 170(2) offences were express limitations by reference to the particular criminal activity. The words fraudulent evasion of duty attached to section 170(1)(b) were merely descriptive and did not limit the entry to duty evasion.
3. Because the value exceeded £100,000, an offence charged under section 170(1)(b) fell within Class K. It was therefore equally capable of falling within Class K and Class B. In those circumstances the advocate, rather than the taxing authority, could choose the applicable class.
4. The paying authority could reject the claim only if it had clearly been made under the wrong class. Mr Ahmed’s claim was valid because Class K was one of two equally apposite classes.
5. The court noted that, if Parliament intended all evasion-of-drug-controls offences to fall within Class B, the drafting of the Funding Order could readily be amended.

High Court (Queen’s Bench Division): The Lord Chancellor appealed under article 31 of the [2013] EWHC 3642 (QB) against the decision of Costs Judge Campbell dated 16 April 2013. The appeal was dismissed.