R v Thomas

For graduated-fee purposes, a criminal trial may have begun in a meaningful sense before the jury is sworn or the case is opened. The decisive question is whether substantial matters of case management have been undertaken as part of the trial’s commencement. Ordinary preparatory work, discussions aimed at resolving the case and routine jury selection will not necessarily suffice. However, applications concerning the indictment and submissions about the suitability of a jury may amount to substantial case management, particularly in a long and complex trial. The court must assess how events unfolded rather than apply a single formal criterion.

Hussain Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of the litigator’s graduated fee by reference to a cracked trial.

The defendant, Stephen Thomas, faced charges including possession of a prohibited weapon and conspiracy to supply controlled drugs. On the first day listed for trial, the jury panel was discharged after concerns arose about a prospective juror’s connection with the defendant and alleged comments about him. On the following morning, the defendant pleaded guilty to two counts and the prosecution left the remaining charges on the file.

The central issue was whether the trial had begun in a meaningful sense before the pleas, so that the solicitors were entitled to a trial fee rather than a cracked-trial fee.

1. The appeal was allowed. The solicitors were entitled to a recalculation of the graduated fee and to the costs of the appeal.
2. The court applied the guidance in Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB). Whether a jury has been sworn is not conclusive. A trial may begin before swearing where substantial matters of case management have been undertaken in a continuous process forming part of the trial’s commencement.
3. The determining officer was correct that much of the work undertaken was ordinary case management commonly dealt with at the beginning of a trial. Last-minute documents, discussions about possible resolution and the initial jury-selection process did not, viewed alone, necessarily establish that the trial had begun.
4. However, the proposed severance of the firearms charge was a substantial matter of case management. Its existence affected the future conduct of the proceedings and the potential prejudice to the defendant. The advocates’ submissions concerning the suitability of the first jury were also a substantial matter of case management. The fact that the severance application was not formally made before the plea did not prevent it from materially overhanging the trial’s anticipated progress.
5. Considering the events cumulatively and in context, including the expected length and complexity of the trial, the court concluded that the trial had begun in a meaningful sense before the guilty pleas. The graduated fee therefore required recalculation on the appropriate trial basis, with an additional £1,500 exclusive of VAT for the appeal costs and the £100 paid on appeal.

1. Determining officer: calculated the graduated fee by reference to a cracked trial.
2. Redetermination: the original view was maintained.
3. High Court (Senior Courts Costs Office): allowed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, ordered recalculation of the graduated fee and awarded the costs of the appeal.