R v Mills

For graduated-fee purposes, the production of a further electronic indictment does not necessarily create a separate case. The question is whether the later document represents a genuinely separate indictment or merely an amendment or variation of the original indictment. A reduction in the seriousness of an offence, including removal of an aggravating feature, may be no more than an amendment. Where the proceedings have in substance concerned one indictment, only one graduated fee is payable, even if the amendment is recorded by a new document in the Digital Case System.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s refusal to pay a second graduated fee.

The defendant was originally charged under an indictment containing aggravated burglary and two weapons offences. Before the plea and trial preparation hearing, a second electronic indictment added a burglary count without the aggravating feature and the original indictment was stayed. The defendant pleaded guilty to the counts on the second indictment, and the fee for that indictment was paid. The issue was whether the original and second indictments constituted two cases for graduated-fee purposes.

1. The appeal was dismissed. The determining officer was correct that only one graduated fee was payable.

2. Schedule 1 paragraph 1(1) of the Criminal Legal Aid (Remuneration) Regulations 2013 defines a case, for the relevant purpose, by reference to one or more counts of a single indictment. Separate fees may be payable where an indictment is genuinely severed, but some action must be taken in relation to each separate indictment.

3. The fact that several versions of an indictment exist electronically does not itself establish separate cases. The court must assess the substance of the changes and whether the later document is, in reality, an amendment or variation of the original.

4. The second indictment differed from the first only by an immaterial alteration to the burglary address and removal of the aggravating feature, namely carrying an axe. The aggravated burglary was thereby reduced to a lesser burglary offence. This was a commonplace prosecutorial reconsideration of the seriousness of the allegation, not the bringing of a separate case.

5. The use of a further electronic document reflected modern Digital Case System practice. In the paper-based system, the additional count would ordinarily have been added to the original indictment. The possibility that the aggravated burglary would have been vigorously defended, or that the change affected the practical dynamics of the case, did not alter its legal character.

6. The approach in R v Gary Moore was applicable. The proceedings had in substance concerned one indictment, varied to include a lesser count, and therefore generated only one fee.

The appeal was brought to the Senior Courts Costs Office under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the determining officer’s refusal to pay a second graduated fee. The appeal was dismissed.