Regina v Barnes

For a trial to have begun in a meaningful sense under the guidance in Lord Chancellor v Ian Henery Solicitors Limited, the court must have dealt with substantial matters of case management. Ordinary pre-trial preparation and important but routine case-management decisions are insufficient. An application to adjourn so that the prosecution can obtain evidence from a different witness does not, without more, constitute substantial case management. Where an accused has pleaded not guilty and the prosecution subsequently offers no evidence, the fee is therefore a cracked trial fee if the case has not proceeded to trial in that meaningful sense.

Cunninghams Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s decision to categorise the fee for representing Christopher Barnes as a cracked trial fee rather than a one-day trial fee.

Mr Barnes had pleaded not guilty to conspiracy charges. On the listed trial date, the prosecution sought an adjournment to obtain evidence from a replacement expert after difficulties concerning a witness. The judge refused the adjournment, after which the prosecution offered no evidence. No jury had been empanelled or sworn. The central issue was whether the events before the prosecution’s decision amounted to the commencement of a trial in a meaningful sense.

1. Appeal dismissed. The determining officer correctly categorised the fee as a cracked trial fee.

2. The court applied the guidance given by Spencer J in Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB). A trial may begin before a jury is sworn where substantial matters of case management form part of the trial process, but the phrase substantial requires more than expected pre-trial preparation or an important yet routine case-management decision.

3. The court rejected the submission that anything concerning a witness or evidence is necessarily substantial. The only substantive matter before the trial judge was the prosecution’s application to adjourn so that evidence from a different witness could be obtained. That application did not amount to substantial case management and the case had not begun in a meaningful sense.

4. R v Sallah (281/18) was materially different. There, defence counsel challenged the admissibility and reliability of the prosecution evidence, and the prosecution’s decision to offer no evidence arose from that adversarial issue. Those circumstances justified treating the case-management work as substantial. The present case involved no comparable defence challenge to the quality of the evidence.

5. Because Mr Barnes had pleaded not guilty, the case did not proceed to trial and the prosecution offered no evidence, the statutory definition of a cracked trial was satisfied. The determining officer’s conclusion was upheld.

Senior Courts Costs Office: The appeal against the determining officer’s categorisation of the fee was dismissed. The determining officer’s decision was upheld.