Regina v Kennedy

Under the Advocates Graduated Fee Scheme, an offence which clearly falls within a specified band must be remunerated under that band. Neither the determining officer nor the costs judge on appeal has discretion to reclassify the offence by reference to the work undertaken, the importance of related evidence, or apparent unfairness between representatives. The absence of equitable results does not confer a discretion where the Criminal Legal Aid (Remuneration) Regulations 2013 provide a prescribed classification. A catch-all band is available only where the offence does not fit within any specified band.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s categorisation of two people-smuggling offences in band 14 of the Advocates Graduated Fee Scheme. The offences arose in a prosecution involving a wider people-trafficking conspiracy, 43 counts, and manslaughter counts concerning migrants who died in a lorry.

Counsel argued that the preparation and presentation of the defence required consideration of the manslaughter evidence and should attract band 1.1, applicable to the killing of two or more persons. The central issue was whether the prescribed scheme permitted reclassification of offences which fell within the express human-trafficking band.

1. The appeal was dismissed. The fact that counsel had undertaken work comparable in quantity and importance to work in a manslaughter case did not alter the applicable remuneration band.

2. The Advocates Graduated Fee Scheme introduced from 1 April 2018 contains band 14 for exploitation and human-trafficking offences. The people-smuggling offences with which the defendant was charged fell within that band.

3. The determining officer and the costs judge on appeal had no discretion to reclassify an offence which clearly fell within a particular band. The existence of a catch-all band 17 did not assist because the offences were not outside the specified bands.

4. The court recognised the lack of parity between counsel, solicitors and co-defendants, and regarded the result as inequitable. That inequity could not justify a different decision because the scheme did not confer a general equitable discretion. The court could only apply the prescribed regulations and scheme.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a determining officer’s decision to place the offences in band 14 rather than band 1. The High Court (Senior Court Costs Office) dismissed the appeal.