R v Tyrone Rowe

A cracked trial fee may be payable where the assisted person effectively indicates a not guilty plea at the first plea and case management hearing, but formal arraignment is prevented by the absence of counsel. The court must apply the Criminal Legal Aid (Remuneration) Regulations 2013 to the case as procedurally constituted when the trial was listed.

A later guilty plea to a count added after the trial listing does not prevent a cracked trial fee where the listed trial concerned different counts and the prosecution later offers no evidence on those counts. The regulations remain generally mechanistic and predictable, but their application is fact-sensitive.

The appellant advocate appealed against a redetermination of remuneration. The defendant had initially faced attempted murder and knife-possession counts. At his first Crown Court hearing he was unrepresented because of Criminal Bar Association strike action, and no formal arraignment took place.

The case was nevertheless prepared and listed for trial. A later count of assault occasioning actual bodily harm was added, to which the defendant pleaded guilty. The prosecution offered no evidence on the attempted murder count, and the defendant was acquitted of the knife-possession count. The issue was whether the advocate was entitled to a cracked trial fee or only a guilty plea fee.

1. The appeal was allowed. The advocate was entitled to remuneration on the basis of a cracked trial fee, together with the appeal fee of £100.
2. The relevant provisions of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 did not make formal arraignment an absolute requirement for a cracked trial fee. The court accepted that the defendant had either pleaded not guilty or indicated an intention to do so at the first plea and case management hearing. Formal recording of the plea was prevented by counsel’s unavailability.
3. The counts of attempted murder and knife possession did not proceed to trial because the prosecution offered no evidence or the defendant was otherwise not tried on those counts after a trial had been listed. The prosecution had not declared before or at the plea and case management hearing that it would not proceed with them.
4. The alternative limb was also satisfied if the case was treated as having been listed for trial without the defendant attending a hearing at which a plea was entered.
5. The later guilty plea to assault occasioning actual bodily harm did not convert the remuneration into a guilty plea fee. That count was added after the trial had been listed and was not part of the trial as originally constituted.
6. R v Williams was applied. The court rejected the suggestion that it was borderline, but emphasised that it was decided on its particular procedural facts. The decisions in R v Malik, R v Barzey, R v Jarir and R v Gatherar were not inconsistent because each involved materially different circumstances, including the absence of a defendant’s not guilty plea.
7. The court stated that remuneration should not be frustrated by the unusual circumstance of counsel’s absence caused by historical strike action. The decision did not represent a departure from the generally mechanistic application of the regulations.

1. Senior Courts Costs Office: The determining officer remunerated the advocate on the basis of a guilty plea fee.
2. High Court, Senior Courts Costs Office: Costs Judge Nagalingam allowed the appeal and directed remuneration on the basis of a cracked trial fee.