Regina v Gary Moore

For litigator graduated fee remuneration, replacing an indictment does not create a second case merely because the original indictment is stayed or quashed. The court must assess the nature and extent of the changes and the Crown Court procedure adopted. Where the replacement supersedes the original so that the defendant faces only one version of the relevant offence, there remains one case under the Criminal Legal Aid (Remuneration) Regulations 2013 and only one fee is payable. Substantive changes to particulars do not necessarily alter that conclusion.

Gomer Williams & Co. Ltd represented Gary Moore in proceedings concerning alleged mortgage and investment fraud. The Defendant was initially prosecuted on a 16-count indictment. A second 15-count indictment was later preferred, altering the alleged period of offending in one count, removing a charge against a co-defendant and removing another count. The Defendant pleaded guilty to counts 1–5 on the second indictment, and the first indictment was subsequently stayed.

The Legal Aid Agency’s Determining Officer allowed one fee under the Litigator’s Graduated Fees Scheme. On an appeal under Regulation 29, the issue was whether the two indictments constituted two cases attracting two fees, or whether the second indictment was in substance an amendment of the first.

1. Appeal dismissed. The Appellants were entitled to one fee only.
2. The Criminal Legal Aid (Remuneration) Regulations 2013 establish a technical remuneration scheme, but the question whether there is one case or two cannot be resolved solely by the formal fact that an earlier indictment was stayed or quashed.
3. The court preferred the pragmatic approach in R v. Wharton [2021] SC-2021-CRI-000195. The assessment depends on the nature and extent of the changes sought and the consequent procedure adopted by the trial judge. Staying the original indictment and preferring an amended version may be a practical alternative to annotating or formally amending the original. The use of two documents does not, without more, create an additional case or justify a further fee.
4. Although the changes to count 3 were substantive and altered the alleged criminality, the offence remained essentially the same. There was no suggestion that the Defendant would face trial on two separate charges of fraud arising from the two versions. The second count therefore superseded and replaced the first. In substance, the second indictment was an amendment of the original, so there was one case for the purposes of the Regulations.
5. The approach in R v. Wharton was preferred to that adopted in R v. Hussain & Others [2011] 4 Costs LR 689 and the judge’s earlier decision in R v. Ayomanor [20201] SC-2020-CRI-000146.

1. High Court (Senior Court Costs Office). On 23 June 2022, Costs Judge Whalan dismissed the appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013: [2022] EWHC 1659 (SCCO).
2. Legal Aid Agency Determining Officer. The claim under the Litigator’s Graduated Fees Scheme was determined on the basis that one fee was payable.