R v Charlie Gorge

For the purposes of the Advocate’s Graduated Fees Scheme, a hearing may constitute a trial followed by a new trial where the first trial is formally declared ineffective and the court orders a new trial. The question is one of procedural fact and reality, assessed case specifically by reference to whether the procedural and temporal matrix has been broken.

The short interval between hearings and the continued appearance of the same advocate do not, by themselves, establish one continuous trial. The latter circumstance is expressly contemplated by paragraph 2(2) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013.

The appellants represented the defendant in a multi-defendant criminal trial. A jury was sworn and the prosecution opened on 25 July 2022. The jury was discharged four days later. On 1 August 2022 the trial was recorded as ineffective and the judge ordered a new trial. A new jury was sworn on 8 August 2022, and the hearing continued for 33 days.

The appellants claimed fees for a trial and a new trial. The Legal Aid Agency assessed the claims as one continuous trial. The appeals concerned the proper application of paragraph 2(2) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013.

1. The appeals were allowed. The AGFS claims were directed to be reassessed on the basis of a trial and a new trial. The £100 appeal fees were ordered to be returned.

2. Paragraph 2(2) of Schedule 1 applies where, following a trial, an order is made for a new trial and the same trial advocate appears at both trials. Accordingly, the fact that the same advocate appeared cannot count against recovery under that provision. The provision also expressly contemplates a new trial starting within one month, so the short interval between the hearings cannot by itself support treating them as one trial.

3. The decisive question is whether, as a matter of procedural fact and reality, there was one trial or a trial followed by a new trial. The temporal and procedural matrix is relevant, but the inquiry is case specific.

4. Here, the judge’s formal recording on 1 August that the initial trial was ineffective, together with the order for a new trial, broke the procedural and temporal matrix. That determination was made in the ordinary procedural progress of the criminal case and was not merely guidance for a later costs appeal. It therefore deserved weight.

5. The short gap between the hearings did not alter the conclusion. Nor did the fact that the later hearing did not retrace the four-day hearing determine the issue, since the relevant statutory distinction is between a trial and a new trial, rather than between a trial and a retrial.

The appeals were brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against determinations by the Legal Aid Agency’s Determining Officer. The High Court (Senior Court Costs Office) allowed both appeals.