Regina v Costello

When assessing criminal legal aid remuneration for advocacy before the Court of Appeal, the determining officer must allow reasonable preparation time and a reasonable hourly rate having regard to the nature and responsibility of the work. Rates applicable to Very High Cost Cases in the Crown Court do not bind assessments for Court of Appeal work. An appeal involving a murder sentence will ordinarily fall towards the top end of criminal work, and the fee should reflect the responsibility involved. The reasonableness of preparation must be assessed in the context of the case, including the need to master relevant evidence and present it effectively.

Counsel appealed against the determining officer’s assessment of fees for representing Jack Costello in an appeal to the Court of Appeal against sentence following his murder conviction. Leave to appeal against conviction was refused, but leave to appeal against sentence was granted, and the minimum term was reduced from 19 to 16 years.

The determining officer allowed four hours’ preparation and two and a half hours’ attendance at £75 per hour, although counsel claimed 10 hours’ preparation and two and a half hours’ attendance at £150 per hour. The issues were whether the claimed preparation time and hourly rate represented reasonable remuneration under the applicable regulations.

1. The appeal was allowed. The determining officer was directed to allow counsel’s claimed fees of £1,875 plus VAT, together with £500 for the appeal costs and the £100 appeal fee.
2. The 11-page preparation document demonstrated substantial and central preparation for appearing before a three-judge Court of Appeal. The determining officer’s allowance of only two hours’ preparation materially underplayed the significance of the hearing and the need for thorough preparation.
3. The claimed 10 hours’ preparation, together with two and a half hours’ attendance, was reasonable. This included work addressing CCTV footage which no one else possessed, correspondence with the court’s lawyer, and preparation concerning the sentencing appeal.
4. Rates agreed or allowed for Very High Cost Cases in the Crown Court had no binding effect on Court of Appeal remuneration. Those rates reflected a transactional arrangement in which substantial time was expected to be claimed. Court of Appeal work involved different circumstances and greater responsibility.
5. The reference to Evans and Others v the Serious Fraud Office indicated a ceiling for criminal work, but left considerable headroom. An appeal against conviction or sentence in a murder case was towards the top end of criminal work. The reasonable rate was therefore £150 per hour rather than £75.
6. Although attendance remuneration might ordinarily be assessed by reference to the so-called seven pillars, the attendance fee was assessed as claimed because it formed only a small part of the total claim. The same conclusion would have followed on a traditional brief-fee assessment.

The determining officer assessed counsel’s remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013. Costs Judge Rowley allowed the appeal under regulation 29 and directed payment of the claimed fees and appeal costs.