R v Koroma

A trial fee under the graduated-fee scheme is payable only where the proceedings have begun in a meaningful sense. A jury need not have been sworn, but substantial case-management activity before a jury is sworn may qualify only where it concerns significant issues about the conduct of the trial that would otherwise require the trial judge’s ruling.

The fact that counsel negotiate a basis of plea, however beneficial to the defendant, does not itself establish substantial case management or a trial. The nature of the discussions and the court’s involvement must be evidenced. A guilty plea before the case is opened will ordinarily support classification as a cracked trial.

The appellant solicitors represented the defendant on an indictment in Nottingham Crown Court. The defendant entered guilty pleas on the day fixed for trial after counsel prepared the case, negotiated a basis of plea and obtained a sentencing indication.

The appellant had been paid the graduated fee for a cracked trial under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. It appealed under regulation 29, contending that the work undertaken meant that the trial had started and that a trial fee was due.

The central issue was whether the proceedings had begun in a meaningful sense before the guilty pleas were entered.

1. Appeal dismissed. The defendant pleaded guilty before the prosecution could open the case. The trial judge had indicated that the trial had not started, and counsel’s request for that indication accepted that position.

2. The applicable test was that in Lord Chancellor v Henery [2011] EWHC 3246 (QB): whether the trial had begun in a meaningful sense depends on the facts. A jury is not decisive. A trial may begin before a jury is sworn where substantial case-management matters are being dealt with in a continuous process towards empanelling the jury, opening the case and hearing evidence.

3. The guidance on substantial case management is not confined to long trials. Its application turns on what has happened when the alleged trial start is said to occur, rather than on the trial’s eventual length.

4. Substantial case management involves significant issues concerning the conduct of the trial which, absent agreement, would require a ruling by the trial judge. Such activity may in principle occur through discussions between prosecution and defence without the judge actively intervening. The nature of those discussions must nevertheless be proved.

5. Here, the evidence showed ordinary trial preparation and a successful negotiation of a basis of plea. It did not identify discussions amounting to substantial case management. The avoidance of a trial and the reduction in the likely penalty did not establish that a trial had nevertheless begun. The cracked-trial fee was therefore correctly paid.

• Senior Courts Costs Office: Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from payment of a cracked-trial graduated fee. The appeal was dismissed.