R v Jenefer Ebosele

For litigator remuneration, a second hearing is a separate “new trial” only where the original indictment has been severed, quashed or stayed and a further indictment preferred. A change of venue, judge or jury, a lengthy hiatus, evidential development, or a change from a trial of fact to a trial of issue does not, without more, create a new case.

Where the same indictment remains effective, the proceedings are remunerated as a trial and retrial. The distinction between a trial and retrial and a continuous trial concerns remuneration, whereas the question whether there has been a separate new trial is a question of fact and cannot be inferred from administrative or procedural changes alone.

The appellant solicitor firm appealed against a redetermination of criminal legal aid remuneration. The defendant had initially been tried for causing death by careless or inconsiderate driving, but the first proceedings ended after the jury was discharged because of juror availability. A second hearing took place approximately 11 months later, before a different judge and jury.

During the second hearing the defendant was found unfit to stand trial. The proceedings continued in her absence as a trial of whether she had done the act charged, rather than whether she was guilty. The determining officer allowed payment for a trial and retrial. The central issue was whether the second hearing was instead a separate new trial attracting payment as a second full trial.

1. Appeal dismissed. Payment under the LGFS was correctly calculated on the basis of a trial and retrial.

2. Under the Criminal Legal Aid (Remuneration) Regulations 2013, the terminology of “trial and new trial” and “trial and retrial” must be kept distinct. A separate new trial requires more than a second hearing in the same criminal proceedings. Consistently with R v Innes, two trial fees cannot be paid unless the indictment is severed so that there are two indictments, or the original indictment is quashed or stayed and a further indictment is preferred.

3. Whether there has been a separate new trial is a question of fact and cannot be inferred. The original indictment in this case was neither quashed nor stayed. The application for a stay made during the first hearing was never determined.

4. The 11-month interval, change of venue, change of judge and empanelling of a new jury were matters of administration and were not reliable indicators of a separate new trial. The court was not persuaded that there had been a material change in the evidence upon which the defendant was indicted.

5. The defendant’s change in mental-health position and the direction that the second hearing proceed as a trial of issue did not create a new case. Both hearings concerned the same indictment and the same offence. The prosecution’s decision not to rely on some evidence because of the finding of unfitness did not alter that conclusion.

6. R v Howarth did not assist the appellant. Properly understood, it concerned whether there was one continuous trial or two hearings remunerated as a trial and retrial; it did not endorse payment as two entirely separate trials. R v George was non-binding and illustrated the different terminology used in Schedules 1 and 2 of the 2013 Regulations.

• Senior Courts Costs Office, High Court: the appeal against the determining officer’s redetermination was dismissed. The determination allowing remuneration as a trial and retrial was upheld.