R v Massey

For the purposes of the Litigators Graduated Fee Scheme, a case is not a cracked trial under limb (b) merely because it was listed for trial at an earlier hearing where no plea was entered. Where the defendant later enters only a guilty plea, the case does not satisfy limb (a), because there was no earlier not-guilty plea, and it does not satisfy limb (b) if a plea was subsequently entered before trial. The relevant question is whether the defendant entered a plea before trial and, if so, the nature and timing of that plea.

Gray & Co appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment of the fee payable for representing Jeffrey Massey.

Massey faced charges on indictment. At the first PTPH, no plea was entered, but the case was listed for trial. At a later PTPH, he pleaded guilty to all charges and was subsequently sentenced. The solicitors contended that the earlier trial listing brought the case within limb (b) of the definition of a cracked trial. The central issue was whether the later guilty plea prevented payment of a cracked trial fee.

1. Appeal dismissed. The guilty plea fee was payable.
2. Limb (a) of the definition of a cracked trial in paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 was not satisfied. The defendant had never pleaded not guilty at the first hearing at which he entered a plea.
3. Limb (b) was not satisfied merely because the case had been listed for trial at the first PTPH without a plea being taken. Relying on R v Jarir [2022] EWHC 2231 (SCCO) and the analysis in R v Lamin (175/19), the court held that the amended wording focused on whether a hearing took place at which the defendant entered a plea.
4. The 2015 amendment had replaced wording referring to a case being listed for trial without a plea and case management hearing. The revised wording was directed to cases in which no hearing occurred at which the defendant entered a plea. If the defendant entered a plea before trial, that plea determined whether the cracked trial or guilty plea fee was payable.
5. Accordingly, where the only plea entered was guilty, a guilty plea fee was payable even though an earlier hearing had taken place at which no plea was required.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment under the Litigators Graduated Fee Scheme. The High Court (Senior Court Costs Office) dismissed the appeal.