R v Turner

The Litigators’ Graduated Fee Scheme must be applied according to its wording. The court cannot rewrite or disapply the Criminal Legal Aid (Remuneration) Regulations 2013 merely because their mechanical operation produces an unusually generous payment.

Where separate indictments constitute separate cases, paper evidence served in each case counts towards the PPE total for that case. It cannot be excluded because identical evidence was also counted in another case. Electronic evidence may be excluded where the relevant circumstances, including duplication and limited relevance, make inclusion inappropriate.

Clarke Kiernan LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the assessment of its graduated fee for representing Nathan Turner.

There were two separate indictments: a murder indictment involving several defendants and a later drug indictment concerning Turner alone. Although the indictments were never joined, the Crown and court treated the proceedings as one case for much of the preparation and trial. The determining officer accepted that two fees were payable but assessed the PPE count for the drug case at zero, on the basis that the evidence had already been counted for the murder case. The central issue was the correct PPE count for the drug indictment.

1. The appeal succeeded. The determining officer’s assessment of zero PPE for the drug case was wrong in principle.
2. Schedule 2 requires the number of pages of Crown evidence served in each case to be calculated by reference to the specified categories of evidence. The Regulations contain no power to exclude paper evidence merely because it duplicates paper evidence served or counted in another case.
3. The court rejected the Lord Chancellor’s submission that the Regulations should be given a different construction to avoid an alleged windfall. The fact that an exceptional case results from poor case management does not justify rewriting the statutory scheme. The court distinguished R v Thomas, where a sensible interpretation was required to prevent the scheme becoming unworkable and was consistent with the wording of the Regulations.
4. Because the murder and drug indictments were separate, and the Crown served the same paper evidence without distinguishing between the cases, the paper PPE count for each case had to be the same. Relevance was immaterial to the paper PPE calculation; the question was whether the pages had been served.
5. Electronic PPE stood on a different footing. Its inclusion was discretionary under Schedule 2, and duplication and its little or no bearing on the drug case justified exclusion.
6. The appropriate additional payment was to be made to the Applicant, together with £750 exclusive of VAT for the appeal costs and the £100 paid on appeal.

High Court (Senior Court Costs Office): appeal under regulation 29 allowed. The determining officer’s PPE assessment for the drug case was set aside in substance, and the appropriate additional payment and appeal costs were ordered.