R v Krysztof Ziolkowski

Where criminal proceedings are dismissed on a successful application to dismiss and the assisted person is discharged, the Criminal Legal Aid (Remuneration) Regulations 2013 provide for payment of a guilty plea fee. This applies even where the defendant was not arraigned and entered no plea, because the procedural rules may properly prevent arraignment while an anticipated dismissal application is prepared. The fact that representatives also prepared for a listed trial, or that a court clerk described the hearing as a cracked trial hearing, does not alter the prescribed fee. Earlier decisions concerning unusual circumstances where defendants were not arraigned were distinguishable because they did not involve successful applications to dismiss.

Hedley Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s assessment of their litigator’s graduated fee claim. They had represented a defendant charged with conspiracy to murder. Before arraignment, the defendant made an unopposed application to dismiss and was discharged.

The solicitors claimed a cracked trial fee, arguing that they had indicated a not-guilty position and had continued preparing for the listed trial. The Agency assessed the claim as a guilty plea fee under Schedule 2, paragraphs 2 and 21. The central issue was whether the Regulations required that result despite the absence of any arraignment or plea.

1. The appeal was dismissed. The Regulations specifically provide for a guilty plea fee where, following an application for dismissal, the charge is dismissed and the assisted person is discharged.
2. The definition of a cracked trial in Schedule 2, paragraph 1(1)(a), could appear to support the appellants’ claim. However, that provision must be read with the specific provisions governing successful dismissal applications.
3. The criminal procedural rules may prevent arraignment where a defendant intends to apply for dismissal. The fee provisions therefore necessarily contemplate that, in such a case, the defendant may have neither been arraigned nor entered a guilty plea.
4. R v Williams [2020] SC-2019-CLI-000118 and R v Fitton [2022] SC-2021-CLI-000139 were distinguishable. Neither involved a fee assessment following a successful application to dismiss.
5. A trial judge’s or court clerk’s view that a hearing was a cracked trial hearing cannot determine the fee under the technical statutory scheme. The Costs Judge must apply the Regulations, although the trial judge’s view may assist.
6. The result was regrettable and created a potential financial conflict between preserving a defendant’s credit and ensuring proper remuneration for representatives. Nevertheless, the Regulations, properly read, required assessment as a guilty plea fee.

• High Court (Senior Court Costs Office): appeal under regulation 29 dismissed. The Legal Aid Agency’s assessment of a guilty plea fee was upheld.