R v Williamson

For the graduated-fee scheme, whether a case has reached trial depends on whether a trial has begun in a meaningful sense. Selection or swearing of a jury is not conclusive. A trial may begin before a jury is sworn where substantial case-management activity forms part of a continuous process leading to empanelling, opening and evidence.

Substantial case management concerns significant issues about the conduct of the trial that would otherwise require a judicial ruling. Negotiations over the strength of the prosecution case and a basis of plea do not, without more, meet that description. A court-log entry describing a trial as effective carries no decisive weight.

The appellant solicitors represented the defendant on an indictment containing six counts. The defendant had pleaded not guilty and a Crown Court trial was listed for 8 November 2021.

On that day, a jury was selected but neither sworn nor put in charge. Following an adjournment, the parties negotiated an agreed basis on which the defendant pleaded guilty to two counts and the remaining counts were left on the file.

The determining authority paid a cracked-trial fee. The solicitors appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, contending that the negotiations after jury selection constituted substantial case management and that a trial fee was payable. The central issue was whether a trial had begun in a meaningful sense.

1. Appeal dismissed. The solicitors were entitled only to the cracked-trial fee. The relevant question under the graduated-fee scheme was whether the trial had begun in a meaningful sense.

2. Applying Lord Chancellor v Henery, jury selection or swearing is not determinative. A trial can begin before the jury is sworn where substantial case management is being undertaken as part of the process leading to empanelling the jury, opening the case and hearing evidence. Conversely, no trial has begun where the proceedings have not reached a meaningful trial stage.

3. The reference in the relevant guidance to modern practice in long cases did not confine the substantial-case-management criterion to long trials. Whether a trial has started depends on what occurred at the alleged point of commencement, not on its eventual length.

4. Substantial case management ordinarily means significant issues concerning the conduct of the trial which, absent agreement, would require a ruling by the trial judge. It may in principle be undertaken through prosecution and defence discussions without active judicial intervention. However, the discussions here concerned criticism of the prosecution case and negotiation of a basis of plea. They were not substantial case management.

5. The court-log entries recording the trial as effective were neither decisive nor significant. They were inconsistent with other log entries. Even a trial judge’s description of a case as effective could not displace the meaningful-sense assessment. As the jury was not sworn, the case was not opened, and no substantial case management had occurred, the trial had not begun.

• High Court, Senior Courts Costs Office: appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the determination paying a cracked-trial fee; dismissed.