R v Thomas

Under the Litigators’ Graduated Fee Scheme in the Criminal Legal Aid (Remuneration) Regulations 2013, replacing, staying or quashing an indictment document does not automatically create a further case or fee. The court must identify a real distinction between the relevant indictments. Electronic replacement in the Digital Case System may simply implement an amendment, particularly where the defendant faces the same criminal conduct and could not be tried on both versions. Two fees may arise where an indictment is severed so as to require separate trials, or where the prosecution has effectively to start again. A stay or quashing is not, by itself, decisive. Adding lesser alternative counts for the same conduct remained an amendment, so only one graduated fee was payable.

Hussain Solicitors represented Sadique Thomas in Crown Court proceedings funded by criminal legal aid. The solicitors claimed a second full trial fee under the Criminal Legal Aid (Remuneration) Regulations 2013, relying on the stay of indictment B5 and the subsequent preferment and uploading of a replacement indictment, referred to as B7.

The Legal Aid Agency’s Determining Officer concluded that the proceedings constituted one case and allowed only one case fee. The appeal concerned whether the electronically managed indictments, the change in the alleged offences and the stay of the earlier indictment amounted to two indictments and two cases for the purposes of the graduated fee scheme.

The appeal was dismissed.

1. Statutory scheme. Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 defines a case as proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. A graduated fee is payable for each case. The scheme operates technically, and the number of fees need not reflect the work undertaken.
2. Relevant authorities. Costs Judge decisions are not binding, although their principles may be reflected in Legal Aid Agency guidance. R v Hussain and Others [2011] 4 Costs L.R. 689 and R v Ayomanor SC-2020-CRI-000146 adopted a mechanistic approach where an earlier indictment was stayed or quashed. That approach was not followed in the present DCS context. The approach in R v Wharton SC-2020-CRI-000195, as subsequently considered in R v Moore [2022] EWHC 1659 (SCCO), was preferred.
3. Digital Case System. R v Jessemey [2021] EWCA Crim 175 clarified the procedural requirements for preferment through the DCS. It did not establish that every replacement document created a second fee case. Indictments may coexist pending election, but that procedural fact does not determine the number of cases under the regulations.
4. Applicable distinction. There must be a real distinction between the indictments, sufficient to justify treating them as more than one case. A stay, quashing or replacement made in the course of an amendment is not itself decisive. Two fees may arise where the indictment is severed so that the defendant faces separate trials, or where the prosecution has essentially to start again. Those circumstances are likely to be rare.
5. Application. The indictment concerning attempted murder was amended by the addition of lesser alternative wounding offences arising from the same criminal conduct. The Defendant pleaded guilty to one of those offences. The separate DCS documents and the stay of B5 reflected the practical implementation of an amendment and did not create a second case. The Appellant was therefore entitled to one fee only.

• High Court (Senior Court Costs Office) dismissed Hussain Solicitors’ appeal under Regulation 29.
• Legal Aid Agency Determining Officer determined that only one case fee was payable under the graduated fee scheme.