Regina v Dale

For graduated-fee purposes, a trial begins only when it has commenced in a meaningful sense. The question is fact-sensitive and depends on how events have unfolded. Jury empanelment is not conclusive.

Substantial case management requires significant issues concerning the conduct of the trial which, if unresolved, would require a ruling from the trial judge. Discussions between counsel, the service of further evidence, and late preparation of a defence statement do not qualify merely because they are important or take place on the listed trial date. Work which should have been completed before trial cannot itself establish that a trial has begun.

Harwood Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The firm represented Elliot Dale in the Crown Court and had been paid the graduated fee for a cracked trial. It contended that the case had proceeded far enough to attract the fee for a trial that had started.

The prosecution offered no evidence on the remaining count after late service of an updated defence statement and further consideration of telephone evidence. The central issue was whether the court had dealt with substantial matters of case management so that a trial had begun in a meaningful sense.

1. Appeal dismissed. The appellant had no proper basis for claiming the graduated fee applicable to a trial which had started.
2. The governing approach was that identified by Spencer J in Lord Chancellor v Henery [2011] EWHC 3246 (QB). Whether a trial had begun was fact-sensitive. Swearing a jury was not conclusive, and a trial could begin without a jury where a continuous process of submissions led to empanelment, opening and evidence, or where the court dealt with substantial case-management matters.
3. Substantial case-management matters meant significant issues concerning the conduct of the trial which, if not agreed, would require determination by the trial judge. The expression did not cover every discussion between prosecution and defence, including discussions about matters important in a wider sense. The judge referred to R v Wood (SCCO 178/15) in support of that formulation.
4. No such matters had been addressed here. The relevant work consisted of serving and considering a limited body of telephone evidence and preparing a proper defence statement concerning a public-interest defence. That statement should already have been served as a routine pre-trial step.
5. The appellant could not rely on work belatedly undertaken because the defence had not properly reviewed the evidence or prepared the case before trial. If completed in good time, the work might have avoided the need for a trial altogether. The defendant’s ultimate responsibility for serving a defence statement did not absolve the solicitors from their responsibility to consider the evidence and advise appropriately.
6. The Criminal Legal Aid (Remuneration) Regulations 2013 had to be applied mechanistically. The appellant’s conduct had caused substantial waste of court time and resources and did not justify an increased graduated fee.

High Court (Senior Courts Costs Office): Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determination treating the matter as a cracked trial was upheld.