Paul Prior v The Lord Chancellor

An appeal under the graduated fee scheme must be brought within the prescribed time unless there is good reason for an extension. Where there is no good reason, an extension requires exceptional circumstances.

A cracked-trial fee requires satisfaction of one of the statutory limbs. Under limb (a), the assisted person must actually enter a plea of not guilty at the first hearing at which a plea is entered. Communicating an intention to plead not guilty is insufficient. Under limb (b), the case must be listed for trial without a hearing at which the assisted person enters a plea.

The appellant, a barrister and advocate under the criminal legal aid scheme, appealed against a determining officer’s decision that the appropriate graduated fee was the guilty-plea fee rather than the cracked-trial fee.

The defendant had not been arraigned at the Plea and Trial Preparation Hearing. The case was listed for trial, but the defendant later entered guilty pleas to lesser offences at a Mention hearing. The appeal was lodged approximately two months outside the 21-day time limit. The issues were whether time should be extended and whether the facts satisfied either limb of the definition of a cracked trial.

1. Time limit. The appeal was out of time by a considerable margin. Administrative error within counsel’s chambers, together with unfamiliarity with this type of appeal, did not amount to good reason under regulation 31. No exceptional circumstances had been shown. The application for an extension of time was therefore refused.
2. Limb (b). The relevant provision requires that the case be listed for trial without a hearing at which the assisted person enters a plea. It does not include a case in which a later hearing took place at which the defendant entered a guilty plea. The fact that the defendant did not attend the hearing at which the trial was listed did not alter that conclusion. The approach in R v Barzey [2022] EWHC 1775 (SCCO) was correct, and the reasoning in Marks v Lord Chancellor (otherwise known as R v Gatherar) [2023] EWHC 2928 (SCCO) supported the same conclusion.
3. Limb (a). The statutory language requires the assisted person to enter a plea of not guilty at the first hearing at which a plea is entered. A communicated intention to plead not guilty, even if conveyed to the prosecution, is insufficient. The court found no permissible basis for reading the provision more broadly. The block-rated nature of the scheme and possible evidential difficulties concerning intentions did not justify departing from the plain meaning.
4. Disposition. The appeal would fail on the merits in any event and was dismissed. There was no order as to the costs of the appeal.

The judgment was an appeal to a Costs Judge under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a determining officer’s decision dated 25 March 2024. The High Court (Senior Court Costs Office) dismissed the appeal.