Simon Csoka KC v The Lord Chancellor

A graduated-fee scheme may assign different remuneration bands to murder and attempted murder where the enabling legislation confers a broad discretion and creates no entitlement to a particular remuneration hierarchy. A general deeming provision for inchoate offences does not override an express, specific banding provision for attempted murder.

For the purpose of the higher band for the “killing of two or more persons”, “killing” ordinarily requires death to have resulted. An attempted murder count therefore cannot be combined with a murder count to obtain that band. Anomalies inherent in a comprehensive rule-based remuneration scheme do not, without more, make the scheme ultra vires.

The appellant, a trial advocate, appealed under regulation 30 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a Costs Judge’s decision concerning fees claimed under the Advocates’ Graduated Fee Scheme in two murder and attempted murder trials.

He argued that the banding provisions were ultra vires because attempted murder was placed in a lower and separate band from murder. Alternatively, he argued that murder and attempted murder involving two victims should attract Band 1.1 for the “killing of two or more persons”. Costs Judge James rejected both arguments and certified the issue for appeal.

1. Appeal dismissed. The certified question was answered by reference to the banding of the murder count alone, rather than Band 1.1 for the killing of two persons.
2. Section 2(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 conferred a very broad discretion to make provision for remuneration. It did not require a particular remuneration level or hierarchy between offences. The Banding Document was incorporated into the regulatory scheme and was determinative of the band for listed indictable offences.
3. Paragraph 3(1)(b) of Schedule 1, providing that inchoate offences ordinarily fall within the same band as the substantive offence, was construed consistently with the comprehensive Banding Document. It applied where no specific provision had been made. Attempted murder had its own express band under the Banding Document, so paragraph 3(1)(b) did not override that provision. Even if there were an inconsistency, the attempted murder banding was not ultra vires because it did not remove a right created by primary legislation.
4. The possibility of anomalous outcomes did not invalidate the scheme. Its purpose was to provide a comprehensive and readily administered rule-based system, rather than remuneration precisely reflecting work undertaken.
5. For Band 1.1, “killing” bore its natural and ordinary meaning and required death. A second murder or manslaughter count could be considered where necessary to determine the number of persons killed. An attempted murder count could not be treated as a killing, and the inchoate-offence deeming provision did not alter that conclusion. A causing-death-by-dangerous-driving count would likewise not engage the Murder/Manslaughter banding category.

• High Court (King’s Bench Division): Appeal from the decision of Costs Judge Jennifer James, issued on 15 June 2021, dismissed.