R v Rafiq & Ors

For graduated fees under the Criminal Legal Aid (Remuneration) Regulations 2013, the question is whether the defendant faced one case or separate cases, not simply whether an indictment was formally amended, stayed or quashed.

A replacement indictment may constitute a separate case where the changes substantially and radically alter the alleged criminality, the case to be met, and the nature and volume of the evidence. The fact that an earlier indictment was stayed or quashed is relevant but not determinative. Where two separate cases exist, separate full trial fees may be payable.

The appellant solicitors represented a defendant under criminal legal aid in Crown Court proceedings. The defendant initially faced a conspiracy to murder charge. Following discharge of the first jury, a later indictment added defendants and a charge of perverting the course of justice, materially expanding the alleged criminality and evidence. The defendant subsequently faced a retrial on that additional charge.

The Legal Aid Agency allowed one trial fee and two retrial fees. The appellant contended that the first two trials arose from two separate indictments and cases, entitling it to two full trial fees. The central issue was whether the later indictment was merely an amendment or constituted a separate case under the graduated fee scheme.

1. The appeal was allowed. Two full trial fees were payable for the October 2021 and October 2022 trials.
2. Under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a case comprises proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The scheme operates mechanistically, so the number of fees may not reflect the work undertaken.
3. The addition of defendants or counts can be no more than an amendment. Likewise, staying or quashing an original indictment is not, by itself, determinative. The court must assess the substance of the changes and the criminal case the defendant was required to meet.
4. Here, the later indictment replaced the earlier indictment and introduced an additional charge, an additional alleged participant and a radically different focus on the alleged aftermath of the killing. It also generated a substantial increase in the evidence. The changes were therefore substantive rather than technical or merely procedural.
5. The later indictment was properly treated as a separate indictment and the proceedings as a separate case. The October 2022 trial was consequently a new trial for fee purposes, rather than a retrial attracting only a retrial fee.

The appropriate additional payment was ordered, together with £500 exclusive of VAT for costs and the £100 paid on appeal.

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency Determining Officer’s assessment. The appeal was allowed by the High Court (Senior Court Costs Office).