Regina v Doyle

Whether a case has proceeded to trial for graduated-fee purposes depends on whether the trial began in a meaningful sense. Swearing the jury is not conclusive. Where the jury has not been sworn and there has been no opening or evidence, substantial matters of case management may nevertheless amount to the beginning of the trial. The question is assessed retrospectively by considering how events unfolded. Mere housekeeping is insufficient, but substantial evidential issues, including applications concerning admissibility and reliability, may satisfy the test. A guilty plea on the listed trial day does not automatically result in a cracked-trial fee.

RH Law Solicitors Ltd appealed against a determining officer’s decision to calculate its fees on the basis of a cracked trial. The solicitors represented a defendant charged with conspiracy to supply cocaine. On the listed trial day, substantial late disclosure from the EncroChat platform led to review of the evidence and potential applications concerning hearsay, reliability and admissibility. The prosecution then accepted a lesser plea and the defendant was re-arraigned and pleaded guilty before a jury was sworn.

The central issue was whether the case had nevertheless proceeded to trial in a meaningful sense, so that a trial fee rather than a cracked-trial fee was payable.

1. The appeal was allowed. The solicitors were entitled to remuneration on the basis of a trial fee, together with £750 exclusive of VAT for the appeal costs and repayment of the £100 appeal fee.
2. The governing question was whether the trial had begun in a meaningful sense. The definition of a cracked trial in the Criminal Legal Aid (Remuneration) Regulations 2013 did not resolve that question merely by reference to the defendant’s change of plea on the day listed for trial.
3. The guidance in The Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB) showed that swearing the jury was not conclusive. A trial may begin before the jury is sworn where submissions form part of a continuous process leading to the trial, and substantial case management in a long case may constitute the beginning of the trial in a meaningful sense.
4. That substantial-case-management approach was not confined to cases which unquestionably proceeded to trial. The issue had to be decided retrospectively by examining how events unfolded. Straightforward housekeeping, such as editing and amending documents, was insufficient. Substantive evidential issues, including applications to resist hearsay evidence or exclude material because of reliability concerns, could be sufficient.
5. Here, the late disclosure required detailed review and generated significant admissibility and reliability issues. The prosecution’s change of position followed the discovery of apparent flaws in its case. It was artificial to treat the work undertaken on the first day of the listed trial as unrelated to the trial merely because case-management arrangements kept the jury from being sworn and allowed the parties to narrow the issues outside court.

1. Senior Courts Costs Office: The determining officer assessed the solicitors’ remuneration on a cracked-trial basis.
2. High Court (Senior Court Costs Office): The appeal under regulation 29 was allowed. Remuneration was directed on the basis of a trial fee.