R v Thuc Truong

For the purposes of the Advocates Graduated Fee Scheme, a case is not a cracked trial under limb (b) merely because it was listed for trial and no plea was required at an earlier hearing. The relevant question is whether the case was listed for trial without any hearing at which the defendant entered a plea. If the defendant enters a plea before trial, that plea determines the applicable fee category. Where the only plea entered is guilty, the case attracts a guilty plea fee, even if a previous plea and trial preparation hearing took place without arraignment.

Counsel appealed against the determining officer’s assessment of his fee as a guilty plea fee rather than a cracked trial fee. The underlying indictment alleged production of cannabis.

The defendant attended a plea and trial preparation hearing, when trial dates were fixed, but was not arraigned. About two weeks before trial, he pleaded guilty after receiving advice that he had probably already served any sentence. Counsel argued that the case fell within limb (b) of the definition of cracked trial because it had been listed for trial without a hearing at which the defendant entered a plea.

The appeal concerned the proper construction of the relevant definitions in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

Appeal dismissed. The fee was properly assessed as a guilty plea fee.

1. The definition of cracked trial contains two relevant limbs. Limb (a) concerns a defendant who first pleads not guilty and later changes plea, or a case in which the prosecution offers no evidence. That limb did not apply because the defendant had not originally pleaded not guilty.
2. Limb (b) applies where the case is listed for trial without a hearing at which the assisted person enters a plea. The court rejected the submission that fixing a trial date alone was sufficient. The material question is whether the defendant entered a plea at any hearing before trial.
3. The amended wording of Schedule 1 differed from the earlier wording, which referred to a case listed for trial without a plea and case management hearing. The revised wording focused on whether a hearing took place at which the defendant entered a plea. If the defendant enters any plea before trial, that is determinative of whether the case is a cracked trial or a guilty plea.
4. Because the only plea entered was guilty, the case fell within the definition of guilty plea. The fact that an earlier plea and trial preparation hearing occurred without arraignment did not alter that conclusion.
5. Costs Judge Rowley relied on the reasoning in R v Lamin (175/19) and R v Jarir [2022] EWHC 2231 (SCCO), and confirmed that the appeal failed.

• Senior Courts Costs Office: The determining officer assessed the fee as a guilty plea fee rather than a cracked trial fee.
• High Court (Senior Court Costs Office): On an appeal under Regulation 29, Costs Judge Rowley dismissed counsel’s appeal and upheld the assessment.