R v Avery

Advocates’ graduated fees are calculated mechanistically by the offence bands, rather than by the seriousness of the individual case. Where an offence is expressly banded, its factual severity cannot justify a different band. For an unbanded offence, comparison should be made with the typical offence of the relevant type. Sentencing tariffs and mode of trial are useful indicators in that comparison. Intentional strangulation under section 75A of the Serious Crime Act 2015 was closest to the offence in section 21 of the Offences Against the Person Act 1861, attracting band 3.4, rather than the more serious section 18 category.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s calculation of the graduated fee for representing Bradley Avery in a four-count Crown Court indictment.

The indictment included controlling or coercive behaviour, assault occasioning actual bodily harm, common assault and the newly created offence of intentional strangulation under section 75A of the Serious Crime Act 2015. Because intentional strangulation was not expressly classified in the banding document, counsel sought band 3.3 by analogy with section 18, while the determining officer used band 3.4. The central issue was the appropriate comparator for the unbanded offence.

1. Appeal dismissed. The determining officer was correct to calculate the fee by reference to band 3.4.
2. Where an offence is expressly set out in the banding document, the band applies without regard to the severity of the individual case. The scheme adopts a mechanistic method. It does not permit reclassification by reference to case-specific circumstances.
3. For an offence not expressly banded, the appropriate comparator is the typical offence of the relevant kind, rather than an unusually serious or unusually minor example. Sentencing tariffs and mode of trial are useful indicators when assessing comparative seriousness.
4. Intentional strangulation under section 75A was materially less serious than section 18 offending. Its maximum sentence was five years, or 12 months on summary conviction, whereas section 18 carried the possibility of life imprisonment. The closest comparator was the section 21 offence of attempting to choke, suffocate or strangle a person to enable the commission of an indictable offence, which was banded at 3.4.
5. The court applied the guidance in R v Cook [2023] EWCA Crim 452. Cook recognised the serious nature of intentional strangulation and treated the assault occasioning actual bodily harm sentencing guidelines as having some relevance, but did not require the offence to be equated with section 18. Its broad description of strangulation did not determine the band because both strangulation and assault cover a range of seriousness.
6. The written reasons were also wrong to state that band 3.5 would have been appropriate if the controlling or coercive behaviour count had not been available. The offence’s breadth could potentially span more than one band, but band 3.4 was the proper classification on the available guidance and comparators.

• High Court (Senior Court Costs Office) — Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determining officer’s band 3.4 calculation was upheld.