R v Knobel

For the Criminal Legal Aid graduated fee schemes, the relevant date is the date of the determination under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, rather than the date on which an existing representation order is transferred to new solicitors. A transfer is administrative and does not constitute a fresh grant of legal aid. Transitional provisions may therefore leave later work subject to an earlier fee scheme. However, separate indictments which are listed together, but not joined, constitute separate cases for the purposes of the Criminal Legal Aid (Remuneration) Regulations 2013 and may attract separate graduated fees.

The appeal concerned the recoupment of a graduated fee paid to Sarah Vine KC for representing Johannes Knobel in Crown Court proceedings. Legal aid had originally been granted in September 2014 and was transferred to new solicitors after Mr Knobel’s extradition in 2021. The determining officer treated the case as falling under scheme 9, rather than scheme 12, producing a substantial reduction in counsel’s fee.

The appeal also disclosed that two indictments, bearing different case references, appeared to have been heard together without being joined. The central issues were which date governed the applicable fee scheme and whether the indictments constituted one case or two.

1. The appeal was successful, but not on the purposive-construction argument advanced by the appellant. The amendments to the fee schemes did not apply because Regulation 34 of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 expressly excluded proceedings where the determination under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was made before 1 April 2018.

2. The relevant anchor was the section 16 determination, not the later representation order recording the transfer of legal aid. The transfer of representation from one firm to another was essentially administrative and did not confer jurisdiction to grant legal aid afresh. The determining officer was therefore correct to apply scheme 9 rather than scheme 12.

3. Nevertheless, the materials indicated that there were two indictments involving different offences. Under the Criminal Legal Aid (Remuneration) Regulations 2013, indictments which are listed together but have not been joined constitute two cases. Counsel was accordingly apparently entitled to two scheme 9 graduated fees.

4. For administrative simplicity, the determining officer was directed to reinstate the original fee, rather than undertake a further determination for the second indictment. The decision was provisional for 14 days under Regulation 29, allowing further submissions under Regulations 29(7) and 29(11). Subject to those submissions, the appellant was awarded the court fee for the appeal and no further costs.

• Determining officer — concluded that the original September 2014 legal aid determination governed and that scheme 9 applied, reducing the fee payable to counsel.
• High Court (Senior Court Costs Office) — allowed the appeal, directed reinstatement of the original fee on the basis that two unjoined indictments constituted two cases, and made the decision provisional for 14 days.