R v Lock

For the purposes of the graduated fee regime, whether hearings separated by an adjournment constitute one continuous trial or a trial followed by a retrial depends on the substance of the proceedings, not solely on whether the jury reached a verdict or the judge ordered a new trial.

The central consideration is whether the second hearing required substantial further preparation. Relevant factors include the length of the gap, changes in the case or representation, the stage reached in the first hearing, and judicial comments. A short first hearing may still be a trial where the jury was sworn and substantial case management occurred. A lengthy interval and significant new evidence may indicate a retrial.

Shaw Graham Kersh solicitors represented Terence Lock in criminal proceedings. The first hearing began on 10 July 2023, after the jury was sworn, but the jury was discharged after four days. The case resumed in October after additional evidence had been served.

The determining officer treated the proceedings as one continuous trial and calculated a single graduated fee. The solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, contending that the second hearing was a retrial and that the fee should reflect both hearings.

1. The appeal was allowed. The graduated fee was to be recalculated on the basis that the proceedings comprised an initial trial followed by a retrial. The applicant was also awarded £1,500 plus VAT for the appeal costs and repayment of the £100 appeal fee.

2. The Crown Court Fee Guidance identifies relevant factors: the interval between hearings, the stage reached in the first hearing, the comparative length of the hearings, changes of advocate or judge, changes in the case, and judicial comments. Those factors are evaluative and no single factor is determinative.

3. The decisive underlying consideration is whether the second hearing required further preparation work. That consideration is consistent with the reasoning in R v Forsyth (2010), concerning paragraph 10(1) of the Criminal Defence Service (Funding) Order 2007. The analysis is not confined to cases in which a jury has failed to agree a verdict or a formal retrial order has been made.

4. A first hearing may constitute a trial even if it ends for procedural reasons before all the evidence is heard. The judge regarded the swearing of the jury, the substantial case-management issues, and the earlier payment of a trial fee as confirming that the first leg had begun as a trial. The guidance in Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) supported that conclusion.

5. Here, the three-month gap required significant further preparation. New evidence included 45 witness statements, 135 exhibits, and evidence from additional prosecution experts. There was also a change in representation. These matters outweighed the absence of a formal order describing the second hearing as a new trial, and the second hearing was properly characterised as a retrial.

1. High Court (Senior Courts Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed; the determining officer’s calculation was replaced by a calculation treating the proceedings as a trial and retrial.