R v O'Sullivan

Under the graduated fee scheme, joinder of two or more indictments produces one case and attracts one case fee. A stay order made alongside joinder does not alter that result, because joinder means that the counts in the earlier indictments continue as part of the consolidated indictment. The fact that substantial preparation was undertaken for an earlier trial, or that fairness might favour an additional fee, cannot displace the mechanistic application of the regulations. A cracked trial fee is also unavailable for a charge that remains part of a case proceeding to trial.

The appellant represented the defendant in Crown Court proceedings funded under a representation order dated 7 June 2022. The proceedings initially involved a money laundering indictment and later a conspiracy to supply class A drugs indictment. On 10 June 2022, the indictments were joined and previous indictments were stayed. The case then proceeded on a single consolidated indictment.

The Legal Aid Agency’s determining officer concluded that only one case fee was payable. The appellant argued that the money laundering indictment remained a separate case because it had been prepared for an earlier, subsequently vacated trial. The issue was whether the joinder resulted in one indictment and one case, or two cases attracting two fees.

1. The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 was dismissed. Only one case fee was payable.

2. The definition of “case” in Schedule 1, paragraph 1(1), links the graduated fee to proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The scheme therefore operates mechanistically.

3. Where two or more indictments are joined, there is one case for the purposes of the regulations. Joinder necessarily means that the earlier indictment continues as part of the joint indictment. An order purporting to stay all previous indictments cannot change the legal effect of the joinder.

4. The court agreed with the analysis in R v Arbas Khan that, objectively assessed, joinder combined the allegations into one indictment and made any additional stay order no more than belt and braces. The same approach was consistent with R v Hussain and Others, R v Ayomanor and R v Horsfall, subject to the distinction that Horsfall concerned indictments which had not actually been joined.

5. The extensive preparation undertaken for the earlier money laundering trial, and the apparent unfairness of denying a second fee, could not override the regulations. Further, a cracked trial fee could not be claimed for a charge that was continuing to trial.

Legal Aid Agency determining officer: determined that one case fee was payable following joinder of the indictments.

High Court (Senior Court Costs Office): dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 and upheld the conclusion that there was one case and one payable case fee.