The Lord Chancellor v Woodfines Solicitors LLP & Ors

Under the Criminal Legal Aid (Remuneration) Regulations 2013, offence classification for graduated legal aid fees begins by construing the indictment and then locating the charged offence in the Table of Offences. Where the offence is specifically listed, classification is determined by that entry and involves no general discretion. A conspiracy is placed in the same class as the substantive offence to which it relates. An entry referring to an offence contrary to a specified statutory provision may include every offence contrary to that provision. Later increases in the maximum sentence and a subsequent remuneration scheme do not create a lacuna in the earlier scheme. The appeal was allowed because the charged section 170(2) offence was specifically listed as Class F.

The Lord Chancellor appealed under regulation 30 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a decision of Costs Judge Whalan allowing the respondents’ appeal under regulation 29. Solicitors and counsel had represented a defendant charged with conspiracies to evade prohibitions on importing firearms and ammunition, contrary to section 170(2) of the Customs and Excise Management Act 1979.

The fees had initially been assessed as Class B, but the appropriate officer reclassified the offences as Class F. Costs Judge Whalan restored Class B, considering the serious nature of the firearms and the life-imprisonment maximum applicable under section 170(4A). The issue before the High Court was whether the charged offences were specifically listed in Class F or were unlisted offences capable of classification as Class B.

1. Appeal allowed. The costs judge’s order was set aside. The charged offences were properly classified as Class F under the 2013 Regulations.
2. Classification requires the court first to construe the indictment to identify the offence charged and then to locate that offence in the Table of Offences. If the offence is specifically listed, there is no discretionary assessment. Where two classes are genuinely equally apposite, the lawyer making the claim may choose between them, as explained in Lord Chancellor v Ahmed [2013] EWHC 3642 (QB).
3. By Schedule 1 paragraph 3(1)(b), a conspiracy falls within the same class as the substantive offence. The indictment expressly charged conspiracy to evade an import prohibition contrary to section 170(2) of the 1979 Act. Section 170(4A) altered the maximum penalty for specified weapons offences but did not create a separate offence.
4. The Class F table entry for fraudulent evasion under section 170(2) applied. Paragraph 3(1)(e) extended an entry referring to an offence contrary to a statutory provision to every offence contrary to that provision, unless expressly limited. The court could not reclassify the count by treating it as containing a different, subsumed firearms offence, nor could considerations of seriousness create a discretion absent ambiguity.
5. The later 2018 remuneration scheme did not affect the 2013 Regulations and could not demonstrate a lacuna in them. The court applied the statutory approach stated in Duport Steels Ltd v Sirs [1980] 1 All ER 529: the court must give effect to clear statutory wording rather than revise it to achieve a perceived fairness.

The appeal was therefore allowed, with the offence classification restored to Class F.

• High Court (Queen’s Bench Division): The Lord Chancellor appealed from Costs Judge Whalan’s order of 27 February 2019. The appeal was allowed and the offences were classified as Class F.