R v Robert Brazendale

Under the Criminal Legal Aid (Remuneration) Regulations 2013, entitlement to separate trial and cracked-trial fees depends on whether changes to the indictment resulted in the defendant being subject, in substance, to two cases. The fact that earlier indictments were stayed or quashed is not determinative, although it may indicate that a new case was created. The assessment should consider the nature and extent of the changes, including changes to defendants, charges, periods of offending and the overall criminality alleged. Technical amendments do not ordinarily create a second case. Substantial and substantive developments in the prosecution may do so.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s decision to allow one trial fee under the Advocate’s Graduated Fees Scheme. The prosecution initially charged the defendant alone on one count. Later indictments joined co-defendants, added counts and materially altered the alleged criminality. The trial judge stayed earlier indictments after a consolidated indictment was produced. The central issue was whether those developments created a second case, entitling counsel to trial and cracked-trial fees.

1. The appeal was allowed. The appellant was entitled to have his claim assessed as a trial/cracked-trial claim rather than as a trial-only claim. The £100 paid to lodge the appeal was to be returned.
2. Paragraph 27 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 applies within a technical remuneration scheme, but the question whether there was a second case must be assessed by reference to the substance of the prosecution’s development.
3. The staying or quashing of an earlier indictment is not, by itself, determinative. It may nevertheless indicate that the prosecution had evolved into a new case. The court should examine the typographical and substantive nature of the changes and the practice adopted by the trial judge.
4. Changes in the present case were substantial and substantive, rather than technical. They included the progression from one defendant and one count to joined defendants and additional counts, followed by further changes to the defendants, co-conspirators and alleged criminality. The overall criminality changed radically between B7 and the later indictments.
5. Those changes meant that the defendant was effectively subject to two cases. The appellant’s AGFS claim was therefore to be assessed on the trial/cracked-trial basis.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency Determining Officer’s decision allowing one trial fee. The High Court allowed the appeal and directed assessment on a trial/cracked-trial basis.