R v Ahmed

For a trial fee to be payable under the graduated fee scheme, the trial must have begun in a meaningful sense. Swearing or selection of a jury is not invariably decisive. Substantial case management may suffice where the court is dealing with substantive issues as part of the developing trial process.

However, negotiations between the prosecution and defence about the strength of the evidence, resulting in an agreed basis of plea, do not themselves amount to substantial case management or the commencement of a trial. The parties’ discussions may have been conducted at the court’s direction or with its approval, but the relevant question remains what occurred in substance.

Khan Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal concerned the graduated fee payable for representing Javed Ahmed in the Crown Court at Preston.

The defendant pleaded guilty after discussions on the trial date. One count was not pursued, and the periods and quantities alleged in two other counts were reduced. The solicitors had been paid the fee for a cracked trial but claimed that a trial fee was payable.

The central issue was whether the trial had begun in a meaningful sense, although no jury had been selected or sworn.

1. Appeal dismissed. The appellant had not demonstrated that a trial had begun in a meaningful sense.
2. The governing approach was that identified by Spencer J in Lord Chancellor v Henery [2011] EWHC 3246 (QB). Swearing a jury is not conclusive. A trial may begin before swearing where the proceedings have developed into a meaningful trial process, including through substantial case management. It may also begin where submissions form part of a continuous process leading to empanelling, opening and evidence.
3. The reference in Henery to the court dealing with substantial matters of case management was understood as contemplating that, where at least a jury had been selected, the trial judge would be required to make a ruling or rulings. The decision of Costs Judge Simons in R v Wood was regarded as closely aligned with that guidance.
4. The decisions of Costs Judge Whalan in R v Cox and R v Pipe [2024] EWHC 106 (SCCO), and of Costs Judge Rowley in R v Sallah, were not necessarily inconsistent with Henery. They recognised that substantial case management undertaken by the parties at the direction of, or with the approval of, the trial judge may in some circumstances be indistinguishable from substantial case management undertaken by the court.
5. On the facts, the discussions concerned the perceived strength and attribution of prosecution evidence and resulted in a negotiated basis of plea. No jury had been selected. The appellant did not identify any particular issue that would have required a substantial ruling by the trial judge. Those discussions therefore did not establish that a trial had begun in a meaningful sense.

High Court (Senior Courts Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The appellant had received the cracked-trial fee and was refused a trial fee.