Regina v Bowden

For graduated criminal legal aid fees, a case is a cracked trial where the statutory definition is satisfied, including where the prosecution offers no evidence after a not guilty plea. A trial does not begin merely because the listed trial date has arrived or because preliminary submissions have been made. Substantial case management may amount to the commencement of a trial, but a prosecution application to adjourn in order to obtain replacement evidence will not necessarily do so. The court must assess the substance of what occurred. Full preparation by the defence does not itself justify a full trial fee.

JMW Solicitors LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s decision to calculate the remuneration by reference to a cracked trial fee rather than a one-day trial fee.

The underlying prosecution concerned an alleged conspiracy to supply Class A drugs. On the first day of the listed trial, the prosecution sought an adjournment because a police witness who had retired no longer wished to give evidence. The judge indicated that the application was likely to fail. The prosecution then offered no evidence and the defendants were acquitted. The central issue was whether the trial had commenced in a meaningful sense before that decision.

1. The appeal was dismissed. The determining officer had correctly treated the case as a cracked trial for remuneration purposes.
2. The Criminal Legal Aid (Remuneration) Regulations 2013 did not define a trial, but expressly defined a cracked trial to include an indictment case in which the assisted person pleaded not guilty and the case did not proceed to trial because the prosecution offered no evidence. Mr Bowden’s case fell within that definition.
3. The court applied the guidance in The Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB). Whether a trial has begun depends on whether there has been a trial in a meaningful sense. The swearing of a jury is not conclusive. Substantial case management may suffice, particularly where it forms part of a continuous process leading to the empanelling of the jury, opening of the case and calling of evidence.
4. The adjournment application did not constitute substantial case management. The issue arose from the prosecution witness’s reluctance to give evidence after retirement. The defence submissions concerned readiness for trial and the inconvenience of delay, rather than the admissibility, quality or reliability of the prosecution evidence. The circumstances therefore differed materially from R v Sallah, where the defence’s challenge to the evidence materially contributed to the abandonment of the prosecution.
5. The fact that the defence had been fully prepared did not alter the statutory result. The regulations contemplated that a cracked trial fee might be payable despite substantial preparation, and the prosecution’s difficulty was attributable to its own witness rather than to the defence case.
6. A separate claim for additional travelling expenses was not determined on the material before the court. Further submissions and documents were invited if the issue remained in dispute.

• High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determining officer’s decision to allow a cracked trial fee was upheld.