R v Samad Ali

For graduated criminal legal aid fees, whether a trial has begun depends on whether it has started in a meaningful sense. The swearing of a jury is not conclusive. A trial may begin without a sworn jury where substantial case-management matters are dealt with as part of a continuous process leading to trial. Short and unsuccessful attempts to obtain an adjournment or rely on evidence with no real prospect of admission do not, without more, constitute substantial case management or the beginning of a trial.

Solicitors appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. They had represented the defendant in the Crown Court and had been paid the graduated fee for a cracked trial, but claimed the higher fee applicable where a trial had begun.

The defendant pleaded not guilty at a plea and trial preparation hearing. On the listed trial date, the judge refused an adjournment and discussed the admissibility of proposed expert evidence. The defendant then pleaded guilty. The issue was whether those events meant that the trial had begun in a meaningful sense.

1. The appeal was dismissed. The applicable scheme was that in force when the Representation Order was made, and the definition of a cracked trial appeared in paragraph 1(1) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.
2. Because trial was not defined in the Regulations, the court applied the meaningful-sense principles identified by Spencer J in Lord Chancellor v Henery [2011] EWHC 3246 (QB). A sworn jury, opening of the case and calling of evidence are clear indicators, but no single factor is conclusive. A trial may also have begun where substantial case-management matters are addressed after jury selection but before swearing.
3. No substantial case-management matters had been dealt with. The proposed adjournment was a brief and unsuccessful application. The discussion of Dr Robinson’s report did not amount to a ruling or substantive case management. Following R v Brecani [2021] EWCA Crim 731, the substance of the report had no real prospect of admission because it relied on the defendant’s account.
4. The judge’s observations merely identified the evidential difficulty and invited the parties to agree what, if anything, could be admitted. The defendant’s subsequent change of plea did not convert that discussion into the beginning of a trial in a meaningful sense.

The judgment records an appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the fee determination. The appeal was dismissed by the High Court (Senior Court Costs Office).