R v Daniel Wisniewski

For Advocate’s Graduated Fee Scheme purposes, a murder falls within Band 1.1 where the victim was a public servant killed in the course of duty and the duties were sufficiently equivalent to those of a police or prison officer.

A public-facing role involving periodic legal enforcement may establish that equivalence. The character of the employing organisation is also relevant. An organisation performing functions primarily for the public good may be distinguished from a private employer. The assessment is fact-sensitive.

The appellants represented the defendant in a murder trial and claimed fees under the Advocate’s Graduated Fee Scheme. The Legal Aid Agency’s Determining Officers assessed the case as Band 1.2 because the defendant had a previous murder conviction.

The appellants contended that the case was instead within Band 1.1 because the victim, a Boat Licensing Ranger employed by the Canal & River Trust, was a public servant killed while performing duties equivalent to those of a police or prison officer. The appeal under regulation 29 concerned the proper banding of the offence.

1. The appeals were allowed. The murder was a Band 1.1 case under the applicable banding provisions.
2. The Respondent accepted that the victim was a public servant who was killed in the course of his duties. The issue was whether his duties established a sufficient equivalence to those of a police or prison officer.
3. The victim occupied a public-facing role requiring interaction with members of the public and periodically involved legal enforcement. Those features increased the relevance of the role to the Band 1.1 description.
4. The Canal & River Trust performed a role primarily, if not exclusively, for the public good. It was therefore inappropriate to characterise it as a private concern. That materially distinguished the case from R v Earnshaw & Gaukroger, where the victim was acting as an employee protecting a private employer’s property and was not performing duties of a public nature.
5. On the particular facts, the victim was a public servant engaged in duties sufficiently equivalent to those of a police or prison officer. The appropriate additional payment was ordered, together with appeal costs of £500 for the first appellant, £250 for the second appellant, VAT where payable, and the two £100 appeal payments.

• High Court (Senior Court Costs Office): allowed the appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.
• Legal Aid Agency Determining Officers: assessed the claims as Band 1.2 under the Advocate’s Graduated Fee Scheme.