EBR Attridge LLP v The Lord Chancellor

When an indictable offence is not listed in the fee classification table, it is initially placed in Class H but may be reclassified. The discretion must be exercised in light of the underlying purpose of the scheme, including whether the resulting fee provides appropriate compensation for the work undertaken.

The decision-maker should ordinarily consider factual similarity, the offence’s complexion and gravity, and the seriousness of the alleged offending. Sentencing powers may indicate gravity but are not determinative. A connection with prison or prisoners is insufficient, without more, to justify classification in Class C.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 and regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The appellant firm represented two defendants charged with conspiracies involving the conveyance of List B and List C articles into prison.

The offences were not specifically listed in the table of offences. The Determining Officer classified them as Class H and refused reclassification as Class C. The appeal concerned the proper approach to reclassification and whether the prison-related offences were sufficiently analogous in factual character and seriousness to offences in Class C.

1. Appeal dismissed. The offences were properly retained in Class H. There was no order as to the costs of the appeal.
2. Paragraph 3 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 places an unlisted indictable offence in Class H, subject to the possibility of reclassification by the appropriate officer.
3. The reclassification discretion must be exercised having regard to the underlying purpose of the scheme. The relevant question includes the extent to which the classification provides appropriate compensation for the work done by the legal representatives. Classification cannot be determined solely by the existence of unlimited sentencing powers.
4. The decision-maker should ordinarily consider factual similarity, similarity in complexion and gravity, the gravity of the offence and the alleged offending, and the responsibility undertaken by the legal representatives. The nature of the actual wrongdoing may be more informative than the technical legal requirements of the offence. This approach was applied in R v Flanagan.
5. The fact that offending occurred in or around a prison, or related to a prisoner’s imprisonment, did not justify Class C classification. Breach of Prison, harbouring escaped prisoners and assisting prisoners to escape were generally more serious and involved materially different conduct. The offences concerning List B and List C articles were also less serious than the prison-related offences listed in Class C.
6. The availability of Class H as a miscellaneous, catch-all category was significant. The absence of a closely analogous listed offence did not prevent Class H classification, particularly where Class H contained offences of comparable seriousness.

The judgment records an appeal to the High Court under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 and regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The appeal against the Determining Officer’s Class H classification was dismissed.