R v Barnes

For the purposes of the Advocates’ Graduated Fee Scheme, severance may result in two “cases” where it produces two separate indictments against the defendant. The court must examine the indictments as they exist in fact and law, rather than treating every digital replacement or administrative separation as creating a new case. The mere existence of more than one indictment does not necessarily establish multiple cases. Where counts are severed into separate indictments, however, the defendant has two cases even if some pleas have already been entered, provided the relevant offences have not been sentenced. The approach is fact specific.

The appellant represented the defendant under a Criminal Legal Aid representation order. The defendant had initially faced a three-count indictment covering offences at a service station and a later robbery in Durham City. The indictment was joined with an indictment against a co-defendant concerning the Durham City offence.

Following concerns about prejudice, the joint indictment was severed. The defendant then faced one indictment containing the service-station offences and another containing the Durham City offence. The Determining Officer treated the matter as one case because the charges against the defendant had not changed. The appeal concerned whether severance had created two indictments and therefore two cases for remuneration purposes.

1. The appeal succeeded. The appellant was entitled to the appropriate additional payment, together with £400 exclusive of VAT for costs and the £100 paid on appeal.
2. Under the definition of “case” in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, a case means proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The existence of multiple indictments is not, by itself, conclusive. The question is fact specific.
3. The authorities distinguish between a genuine severance creating separate indictments and a digital replacement which merely records an amendment to an existing indictment. The latter does not necessarily create two cases.
4. Here, severance separated Counts 1 and 2, concerning the service-station offences, from Count 3, concerning the Durham City offence. It therefore produced two indictments against the defendant: one containing two counts against him alone and one containing a joint count against him and the co-defendant.
5. The defendant’s existing guilty pleas did not alter that conclusion. At severance he had not pleaded guilty to the service-station robbery and had not been sentenced on the other offences. The possibility of a change of plea remained. Even if the plea had already been entered, the absence of sentence would not have changed the analysis.
6. The severance consequently created two cases in fact and in law. The appellant was entitled to a single cracked trial fee plus the applicable uplift under paragraph 27 of Schedule 1.

The appeal was brought under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s initial determination. The High Court (Senior Court Costs Office) allowed the appeal.