R v McGinley

For calculating graduated fees, offences must be classified under the version of the Criminal Legal Aid (Remuneration) Regulations 2013 applicable when the Representation Order was made. A later AGFS Banding Document cannot be applied retrospectively, particularly where it forms part of a wider revision of the fee proxies. Under the pre-April 2018 Table of Offences, Class J is confined to serious sexual offences. Trafficking, servitude and forced-labour offences without a sexual element therefore fall outside Class J and may properly be classified under another suitable class, including Class B.

The appellants represented two defendants charged in the Crown Court with conspiracies involving servitude, forced or compulsory labour, trafficking and exploitation, together with assault occasioning actual bodily harm. The Representation Orders were made in November 2017.

The Determining Officer classified the relevant offences as Class B under the pre-April 2018 Table of Offences in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013. The appellants sought Class J classification, relying on the later AGFS Banding Document and the modern-slavery character of the allegations. The issue was whether the later classification scheme could influence the earlier Table.

1. Appeal dismissed. The applicable classification provisions were those in force when the Representation Orders were made in November 2017.
2. The AGFS Banding Document could not be applied retrospectively. It was introduced as part of a broader revision of the proxies used to calculate graduated fees, so the later bands were not directly comparable with the earlier Table of Offences (paras 13–15).
3. Under paragraph 3 of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, offences not specifically listed in the pre-April 2018 Table fell within Class H, subject to an application for reclassification into the most suitable class.
4. Following and applying the reasoning of Costs Judge Simons in R v Parveen Khan, a Class J classification was available only for a serious sexual offence. The offences charged here were not sexual offences and therefore could not be classified as Class J (paras 16–17).
5. The overall course of conduct included features resembling kidnapping, false imprisonment and hostage taking, and involved serious violence. It was therefore rational to classify the offences as Class B under the applicable Table. The appeal was dismissed (paras 17–18).

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s classification of the offences. The High Court (Senior Courts Costs Office) dismissed the appeal.