R v Alli

Under the Graduated Fee Scheme, payment is determined mechanistically and does not necessarily reflect the work undertaken. Whether a trial has begun depends on whether it has started in a meaningful sense. The question is fact-sensitive. Swearing the jury is not conclusive, and substantial case-management activity before swearing may in some circumstances amount to the start of a trial. Preparation by solicitors, an informal discussion, confirmation that evidence will be served, or the avoidance of further delay will not suffice without substantial case management forming part of the trial process.

Archer Maher Limited represented the Defendant in the Crown Court at Cardiff. The firm had been paid the graduated fee for a cracked trial but claimed the fee applicable where a trial had started.

On the listed first day of trial, the judge discussed the possibility of resolving the case by pleas. The Defendant pleaded guilty to six counts, the prosecution offered no evidence on the remaining counts, and sentence was imposed. An issue concerning the formal service of telephone-download evidence was also discussed.

The Determining Officer concluded that the trial had not started. The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 concerned whether the events constituted the commencement of a trial in a meaningful sense.

1. The appeal was dismissed. The Appellant was entitled only to remuneration for a cracked trial.
2. The 2013 Regulations must be applied mechanistically. The amount payable does not necessarily correspond with the amount of work done. The relevant guidance was the meaningful-sense test identified in Lord Chancellor v Henery [2011] EWHC 3246 (QB).
3. Whether a trial has begun depends on the facts. Swearing the jury is not conclusive. A trial may begin before swearing where submissions form part of a continuous process leading to empanelling, opening and evidence, or where substantial case-management matters are dealt with in a long case. Conversely, swearing the jury does not itself establish a trial where no trial has begun in a meaningful sense.
4. The judge respectfully rejected the suggestion that extensive preparation by the solicitors was a criterion for deciding whether the trial had started. The informal chambers discussion principally explored whether further delay could be avoided by accepting pleas. The abuse-of-process application was never heard.
5. The discussion about the telephone-download evidence did not amount to substantial case management. The judge merely agreed that evidence already ordered to be served should be formally served, and the prosecution confirmed that it would do so after the case had been resolved. There was no sufficient connection between that issue and the guilty pleas.
6. Although an actual ruling is not always essential, as recognised in R v Coles, R v Sallah and R v Cox, the facts here did not show substantial case management or the commencement of a trial in a meaningful sense.

• High Court (Senior Courts Costs Office): appeal under regulation 29 dismissed. The Determining Officer’s decision awarding the cracked-trial graduated fee was upheld.