R v Bowden

For advocate graduated fees, an offence should be classified by reference to the true nature of the proceedings. Environmental regulatory charges may properly fall within a dishonesty band where the prosecution’s substance is a financially motivated fraudulent enterprise, involving issues such as consent, connivance, financial arrangements and concealed payments. A broad regulatory catch-all category is not an appropriate classification merely because the charged offences arise under environmental legislation. The court must consider the actual issues that made the prosecution lengthy and complex, rather than the statutory label alone.

Gregory Johnson appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s classification of the advocate graduated fee in band 16.3.

Jade Bowden was charged with environmental permitting offences arising from the alleged large-scale illegal depositing of waste. Regulation 41(1) alleged that the offending conduct was committed with her consent or connivance, or was attributable to her neglect, as a company director. The trial lasted 37 days and involved extensive evidence concerning the alleged financial arrangements and profits of the enterprise.

The central issue was whether the case was properly classified as a regulatory offence under band 16.3 or as a dishonesty offence under band 6, in particular band 6.1.

1. The appeal was allowed. The determining officer was directed to recalculate the graduated fee on the basis of band 6.1. The additional payment was to include £750, exclusive of VAT, for costs and the £100 paid on appeal.
2. The introduction of the advocates’ Banding of Offences document widened the range of potentially comparable categories, but the general classification approach remained unchanged. Where no direct match exists, the determining officer must consider whether another category more closely reflects the offence and the true nature of the case.
3. Band 16 was a reasonable starting point because the prosecution concerned substantial environmental harm. Bands 16.1 and 16.2 did not fit because the case involved neither a fatality or major incident nor the specified forms of serious injury, property destruction, toxic gas release or similar consequences.
4. Band 16.3 was a catch-all category and did not provide a good fit. The scale of the alleged operation, the estimated profits exceeding £10 million and the financial investigation meant that the proceedings were not adequately characterised by the regulatory label alone.
5. The offences under the Environmental Protection Act 1990 considered by the determining officer were materially different. Regulation 41(1) required proof not only of unlawful waste depositing, but also of consent, connivance or neglect by the director. The trial’s length arose principally from the financial trail, including alleged attempts to conceal payments and the prosecution of the underlying fraudulent endeavour.
6. The earlier reasoning in Environment Agency v Flanagan, Tones and Abraham and R v Lahooty supported attention to the true nature of the proceedings. On the facts of this case, that analysis required classification in the dishonesty scheme. The threshold for band 6.1 had been met.

1. Determining officer: classified the advocate graduated fee in band 16.3 under the advocates’ Banding of Offences document.
2. High Court (Senior Court Costs Office): on appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, allowed the appeal and directed recalculation under band 6.1.