R v Gordon Lamonby

For the purposes of the Litigator’s Graduated Fees Scheme, a trial may begin in a meaningful sense without a jury being selected or sworn and without the prosecution opening its case. The question is whether substantial matters of case management have taken place as part of a continuous trial process. The court must assess how events actually unfolded, rather than treating pre-trial preparation that should have occurred earlier as determinative. Where, on the facts, counsel question experts at court and that process materially contributes to the prosecution offering no evidence, the hearing may properly be treated as a trial rather than a cracked trial under the Criminal Legal Aid (Remuneration) Regulations 2013.

Altaf Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency Determining Officer’s decision to remunerate a hearing as a cracked trial rather than a trial.

The defendant had been charged with three counts of making indecent photographs of children. On the listed trial day, the experts had not held the required pre-trial meeting. The judge therefore directed them to meet that morning, and both advocates were permitted to question them. A joint report substantially exonerated the defendant, after which the prosecution offered no evidence and the defendant was acquitted. The central issue was whether the trial had begun in a meaningful sense.

1. Appeal allowed. The LGFS claim was directed to be assessed as a trial, not a cracked trial. Costs of £1,000 plus VAT, together with the £100 appeal payment, were awarded.
2. The governing guidance was given in Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB). Whether a trial has begun is not determined conclusively by whether a jury has been sworn. A trial can begin without a sworn jury where substantial matters of case management are dealt with as part of the trial process.
3. The court assessed the events on 28 July 2022 as they actually occurred. The fact that the experts’ meeting and joint report should have been completed before trial did not determine the classification of the hearing. Neither side appeared to bear procedural responsibility for that failure.
4. The decisive feature was that both counsel were permitted to question the experts at court before the joint report was prepared. That questioning would not have occurred had the expert meeting formed part of ordinary pre-trial preparation. It appears to have contributed materially to the prosecution’s decision to offer no evidence.
5. Accordingly, substantial matters of case management took place. Although the trial was short and no jury was selected or sworn, it was a trial in a meaningful sense.

• High Court (Senior Court Costs Office): Appeal from the Legal Aid Agency Determining Officer’s decision. The appeal was allowed and the claim was directed to be assessed as a trial.