R v Trewin

For advocates’ graduated fees, an offence must be banded according to the offence with which the defendant was indicted. The court determining remuneration has no discretion to treat the offence as a more serious offence because the conduct had similar characteristics or might have supported a different charge. The fact that conduct was sexual, aggravated sentence, or comparable to sentence for another offence does not alter the charge actually brought, conviction entered, or sentence imposed.

The appellant represented a defendant before a court martial. The defendant was convicted of service and criminal offences, including disgraceful conduct of an indecent kind, and sentenced to detention and dismissal from the forces.

The appellant claimed remuneration under the Advocates’ Graduated Fee provisions in Criminal Legal Aid (Remuneration) Regulations 2013, arguing that the disgraceful-conduct charge should be banded as adult sexual assault because the conduct was overtly sexual and the sentence was comparable. The appeal under regulation 29 concerned whether the offence could be treated as falling within a more serious band than band 17.1.

1. Appeal dismissed. The banding system did not confer a discretion to treat an indicted offence as another, more serious offence for remuneration purposes. The relevant offence was the offence for which the defendant was indicted, not the offence with which he might have been charged or the offence which the facts might have supported.
2. The prosecution’s decision not to charge sexual assault because of possible difficulty proving the absence of a reasonable belief in consent was not unusual and did not justify recharacterising the charge. The Judge Advocate had expressly made clear that the defendant was not being sentenced for sexual assault.
3. The sexual element of the conduct, the absence of consent, and the resulting aggravation were relevant to sentence. They did not change the fact that the defendant had not been charged with, convicted of, or sentenced for sexual assault.
4. The case was therefore properly treated as falling within band 17.1, the standard-case category in the AGFS Banding Document. The determination was upheld and the appeal was dismissed.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s decision on the appropriate graduated-fee band. The High Court, Senior Court Costs Office, dismissed the appeal and upheld treatment under band 17.1.