Regina v Khan

For remuneration purposes, a second criminal trial does not automatically justify two full trial fees. Two full trial fees require trials involving different offences set out on different indictments. Changes between trials, including a different judge, delay, fewer defendants, an amended indictment or a different method of adducing evidence, may support classification as a trial and retrial, but do not by themselves satisfy that high threshold.

SAK Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer calculated the fees for representation of Kamran Khan on the basis of a trial and retrial, rather than allowing two full trial fees.

The first trial, involving three defendants and four counts, was aborted after three days when two defendants were advised to self-isolate because of Covid-19. At the second trial, one co-defendant had pleaded guilty, the indictment was reduced to one count of wounding with intent, and the complainant’s evidence was adduced by hearsay notice. The issue was whether the circumstances amounted to a fresh indictment and entitled the solicitors to two full trial fees.

1. The appeal was dismissed. The solicitors were entitled to the remuneration applicable to a trial and retrial, but not to two full trial fees.

2. Under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a trial and retrial attract the prescribed first-trial fee and a retrial fee calculated at 25 per cent of the appropriate fee. The question was whether the second hearing was a retrial for remuneration purposes, rather than merely a continuation of one trial.

3. The court held that entitlement to two full trial fees required trials involving different offences set out on different indictments. Severance of an indictment, producing two separate trials, was given as an example of circumstances capable of satisfying that requirement.

4. The changes relied upon by the solicitors cumulatively supported the determining officer’s classification as a trial and retrial. They did not, however, amount to the exceptional circumstance of the defendant facing a fresh indictment at the second trial. The altered number of defendants, reduced counts, change of judge, interval between hearings and hearsay evidence did not change the essential remuneration analysis.

5. The second trial judge’s description of the hearing as a new trial assisted only on the trial-versus-retrial issue. Ordinary language used by a trial judge did not determine entitlement under the remuneration regulations, which required their own application.

1. High Court (Senior Court Costs Office) — appeal under regulation 29 dismissed; the determining officer’s calculation allowing a trial fee and a retrial fee was upheld.