R v Arkdiusz Motyl

For remuneration under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a “new trial” and a “re-trial” are not procedurally synonymous. Where the same litigator represents the assisted person at both hearings, the provision may apply even after a substantial interval and changes of judge, venue and counsel. Those matters may be relevant to whether hearings form one continuous trial, but they do not prevent classification as a trial followed by a re-trial where the indictment and evidence have not materially changed. The applicable remuneration is therefore a full first-trial fee and the prescribed re-trial fee.

Abbey Law Solicitors represented the defendant in criminal proceedings at Derby Crown Court. The first trial began in July 2021, but the jury was discharged on the second day after the judge was required to isolate pending a Covid-19 test. The matter was later re-listed, and a second trial began in October 2023 before a different judge and with different counsel. The defendant then pleaded guilty to three counts.

The Legal Aid Agency’s Determining Officer allowed remuneration as a trial fee followed by a re-trial fee. The solicitors appealed under regulation 29, claiming two separate trial fees. The issue was whether paragraph 13 of Schedule 2 applied to the two hearings.

1. The appeal was dismissed. The claim was correctly assessed as attracting a first-trial fee followed by a re-trial fee.
2. Paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 applies where, following a trial, an order is made for a re-trial and the same litigator acts for the assisted person at both trials.
3. The court rejected the submission that “new trial” and “re-trial” are procedurally interchangeable. There may be informality or inconsistency in Crown Court practice, but there was no evidential basis for treating the expressions as synonymous.
4. The change of venue, judge, prosecuting counsel and defence counsel, together with the 27-month interval, would have been persuasive matters if the claim had been incorrectly treated as one continuous trial. They did not alter the result here because there was no substantive amendment to the indictment and no notable change in the evidence.
5. The comparison with paragraph 2 of Schedule 1 confirmed only that the relevant provisions for litigators and advocates are limited to cases in which the same litigator or advocate appears at both trials. The appeal was accordingly dismissed.

1. Legal Aid Agency Determining Officer: assessed the claim as a trial fee followed by a re-trial fee.
2. High Court (Senior Court Costs Office): dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.