R v Simmonds

For criminal legal aid graduated fees, an offence is classified by reference to the offence charged in the indictment. A conspiracy is placed in the class applicable to the substantive offence identified by the conspiracy count. A burglary with intent to steal remains burglary; the intention to steal does not convert it into theft or permit classification by reference to the value of property allegedly stolen in the wider background. An unlisted offence defaults to Class H, but may be reclassified by reference to the offences specified in the indictment. Where the specified offences are burglaries, the appropriate class is Class E.

Sternberg Reed LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the classification of two offences for graduated fees. The firm had represented a defendant charged with conspiracy to commit burglaries with intent to steal and with encouraging or assisting the commission of one or more offences, identified in the indictment as burglaries.

The determining officer classified both offences as Class E. The appellant sought Class K classification, relying on the alleged value and wider circumstances of vehicle thefts said to form part of the conspiracy. The central issue was whether classification could be based on uncharged theft-related conduct rather than the offences specified in the indictment.

1. Appeal dismissed. The appeal was granted a short extension of time, but the substantive challenge failed.
2. The court had to apply the Regulations as enacted and could not rewrite them because a different result appeared absurd or unfair. Classification must be based on the offences with which the defendant is charged. The court must not investigate the background to quantify payment by reference to offences for which the defendant was not indicted.
3. Under paragraph 3(b) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a conspiracy falls within the same class as the substantive offence to which it relates. Count 1 charged conspiracy to commit burglaries with intent to steal. Under section 9 of the Theft Act 1968, intent to steal is one possible component of burglary. The substantive offence remained burglary, not theft, which is separately defined by section 1 of that Act. Count 1 was therefore a Class E offence.
4. Count 1 could not be treated as Class K by reference to alleged high-value vehicle thefts. The indictment did not charge the defendant with those thefts, and the only theft count concerned a Ford Fiesta involving no apparent value capable of supporting Class K classification.
5. Count 5 concerned encouraging or assisting crime. Because that offence was absent from the LGFS Table of Offences, it defaulted to Class H but was open to reclassification. The indictment specified burglary as the offences allegedly encouraged or assisted. The proper reclassification was therefore Class E.
6. The court’s approach was consistent with the earlier costs decision in R v Martini, which was cited as authority for considering the offences on the indictment.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a determining officer’s classification decision. The High Court (Senior Court Costs Office) dismissed the appeal.