R v TA

For Band 1.1 of the Banding of Offences table, a public servant is equivalent to a police or prison officer only where the relevant duties involve keeping or restoring order in a situation involving actual or potential disorder. Caring for a vulnerable person, although it may be a public duty, does not by itself satisfy that test. A foster carer acting in loco parentis therefore falls outside Band 1.1.

Leading and junior counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s use of Band 1.2 in calculating fees under the Advocates Graduated Fee Scheme. Their client, a child, had pleaded guilty to death by reckless driving after killing his foster carer while attempting to drive away in a car. The determining officer accepted that the foster carer was a public servant and had been killed in the course of her duties, but concluded that her role was not equivalent to that of a police or prison officer. The central issue was the meaning of that equivalence in Band 1.1.

1. The appeals were dismissed. Band 1.2 was the correct band because the defendant was a child under 16.

2. The phrase “equivalent public servant” in Band 1.1 refers to a role comparable to that of a police or prison officer in keeping or restoring order where there is an actual or potential threat of disorder. The circumstances must involve the archetypal activities of a police officer dealing with the public or a prison officer dealing with a prisoner.

3. The underlying context was material. The murder of a police or prison officer had been an aggravating factor under the Criminal Justice Act 2003, intended to deter attacks on officers carrying out their duties and to recognise the gravity of such conduct. Band 1.1 consequently concerns an aggravated form of murder, distinct from an ordinary murder in Band 1.3.

4. R v Wisniewski [2023] EWHC 216 (SCCO) was distinguished. A boat licensing ranger dealing with the public in circumstances comparable to police activity was sufficiently equivalent. That did not establish that every public servant performing caring or protective duties fell within Band 1.1.

5. The foster carer’s attempt to stop the vehicle arose from acting in loco parentis. It was not a role involving the public generally or the maintenance of public order. The determining officer had therefore used the correct band.

6. The court declined to reopen the determining officer’s acceptance that the victim was a public servant. An appeal was from the written reasons, and an appellant was entitled to rely on the scope of the issue identified there.

High Court (Senior Court Costs Office) — Appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determining officer’s use of Band 1.2 was upheld.