REGINA v MOHAMAD

For an enhancement of criminal legal aid fees, “exceptional” is assessed against the generality of criminal cases and retains its ordinary meaning of something out of the ordinary. The assessment is fact-sensitive and must take account of all relevant circumstances, including complexity, responsibility, skill, care, speed and economy. Enhancements may be graded so that the most complex cases receive higher percentages than less exceptional cases. An experienced determining officer is entitled to exercise judgment in fixing a reasonable and proportionate enhancement. A substantial investigation, voluminous evidence and successful resolution without a contested hearing do not necessarily justify the maximum enhancement.

The appellant solicitor represented the defendant in confiscation proceedings under the Proceeds of Crime Act 2002, following his conviction for fraudulent evasion of duty. The proceedings concerned alleged benefit of £386,205.90, hidden assets, a tainted gift and extensive financial evidence. They concluded with an agreed confiscation order.

The determining officer allowed a 30 per cent enhancement for preparatory work under paragraph 29 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The appellant sought the maximum 100 per cent. The issue was whether the circumstances, or the manner in which the case had been conducted, warranted a higher enhancement.

1. The appeal was dismissed. The 30 per cent enhancement allowed by the determining officer was upheld.
2. Under paragraph 29 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, exceptionality is assessed in the context of the generality of criminal cases. The ordinary meaning of exceptional remains applicable. The court endorsed the approach in Re v Wharton and the observations that enhancements should be graded, so that truly exceptional cases are not underpaid.
3. The court agreed with the approach in R v Smith-Ajala, that grading the level of exceptionality can properly reward more complex cases at higher levels than less exceptional cases. The relevant assessment includes the statutory factors and the circumstances identified in the determining officer’s guidance.
4. The appellant’s case involved a lengthy investigation, significant financial material, the defendant’s central role and an allegation of hidden assets. Those matters did not place it near the top range of confiscation cases or make it exceptionally complex. The appellant’s successful settlement and the prosecution’s abandonment of the hidden-assets allegation supported some enhancement, but did not justify 100 per cent, particularly where the concession could not be meaningfully linked to exceptional skill.
5. The determining officer had drawn on more than 30 years’ experience and had appropriately exercised his judgment. His decision to allow 30 per cent was reasonable and proportionate in the circumstances.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s decision allowing a 30 per cent enhancement. The High Court (Senior Courts Costs Office) upheld that decision and dismissed the appeal.