R v Majeed Khan

Under the Criminal Legal Aid (Remuneration) Regulations 2013, a cracked trial fee requires the statutory conditions to be met formally. Where the scheme requires a not guilty plea at the first hearing at which a plea is entered, an informal indication of the defendant’s position is insufficient. The necessary temporal gap between the plea and the prosecution’s decision not to proceed cannot be created by a quasi-plea. The court has no general equitable discretion to award the higher fee merely because the case was prepared for trial or counsel performed substantial additional work. A case may therefore attract the lower guilty plea fee even though the defendant did not plead guilty, if it does not fall within the statutory definition of a cracked trial.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s decision to calculate remuneration on the guilty plea basis rather than the cracked trial basis.

The defendant faced two counts under sections 18 and 20 of the Offences Against the Person Act 1861. At the plea and trial preparation hearing, he was not arraigned because the prosecution intended to make a hearsay application. That application was later dismissed. The defendant was then arraigned, pleaded not guilty, and the prosecution offered no evidence.

The central issue was whether the defendant’s informal indication at the earlier hearing, combined with the procedural inability to enter a formal plea, satisfied the statutory definition of a cracked trial.

1. The appeal was dismissed. The determining officer’s written reasons contained factual errors, including references to a different hearing and indictment, so the court reconsidered the definition independently.

2. The statutory requirements in paragraph (a) were partly satisfied. The defendant entered not guilty pleas when first formally arraigned, and the case did not proceed to trial because the prosecution offered no evidence.

3. The remaining requirement was not met. The prosecution had not declared an intention not to proceed before or at the first hearing at which the defendant entered a plea. The definition required a formal not guilty plea at one hearing and the prosecution’s decision not to proceed at a later hearing or intervening point.

4. The court accepted that the defendant’s position at the PTPH was effectively a firm denial of the indictment and that he could not formally plead because of the proposed hearsay and dismissal applications. The court also accepted that the case had been prepared for trial and that the prosecution intended to proceed if the hearsay evidence were admitted.

5. Those matters could not overcome the wording of the Regulations. A quasi-pleading or informal indication was insufficient. The scheme permitted no equitable adjustment or discretion to award the cracked trial fee where the formal statutory conditions were absent.

6. Although the additional hearsay work would otherwise have justified the higher fee, the absence of a formal not guilty plea at the PTPH was fatal to the claim. The guilty plea fee therefore remained payable.

1. High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.

2. Determining officer: calculated the fee on the guilty plea basis rather than the cracked trial basis.