R v Cameron Gatherar

Under the Advocates Graduated Fee Scheme, a cracked-trial fee is available only where the statutory conditions are met. The provision for a case listed for trial without a hearing at which the assisted person enters a plea applies where no such plea hearing occurs. It does not apply merely because the trial was listed before the plea was entered. An indication of an intended plea is not a plea for these purposes. The remuneration scheme is applied mechanistically and does not give determining officers or costs judges a general discretion to award a different fee because the work undertaken or timing of the plea appears to justify it.

The appellant, a barrister who represented a defendant in Crown Court proceedings, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer assessed remuneration on the basis of a guilty plea rather than a cracked trial.

The defendant had not been arraigned at an earlier Pleas and Trial Preparation Hearing. He later entered guilty pleas to accepted counts, with sentencing and the remaining counts deferred pending the co-defendant’s trial. The appellant argued that the earlier hearing and the proximity of the pleas to the intended trial date entitled him to a cracked-trial fee. The central issue was the proper interpretation of paragraph 1 of Schedule 1 to the 2013 Regulations.

1. Appeal dismissed. The determining officer was correct to assess the fees on the basis of guilty pleas.
2. Paragraph 1 of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 creates two relevant routes to a cracked-trial fee. The first requires the assisted person to enter a not-guilty plea to one or more counts at the first hearing at which a plea is entered, together with the further statutory conditions. The second applies where the case is listed for trial without a hearing at which the assisted person enters a plea.
3. The word “without” in limb (b) means that there must be no hearing at which the assisted person enters a plea. It does not cover a case listed for trial before a later plea hearing. The alternative interpretation would have required the Regulations to refer to a case listed for trial before, rather than without, such a hearing.
4. The earlier hearing did not involve a proper plea. Any indication that the defendant intended to plead not guilty was not recorded, and in any event could not satisfy limb (a) or displace the requirements of limb (b).
5. The interpretation was consistent with the policy of remunerating cases that proceed towards trial on the basis of a not-guilty plea or without a discrete plea hearing. The decisions in R v Barzey, R v Jarir, R v Lamin and R v Rahman supported that approach.
6. The scheme operates mechanistically. Neither the determining officer nor the costs judge has a general discretion to award a cracked-trial fee because substantial preparation was undertaken or because the result appears unfair. Any systemic difficulty arising from late resolution of fitness-to-plead issues was a matter for case management, not a basis for altering the statutory fee.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment. The High Court (Senior Court Costs Office) dismissed the appeal and upheld the assessment on the guilty-plea basis.