R v Frizell

Under the criminal advocates’ graduated fee scheme, remuneration is based on the offences faced by the particular defendant. Where an offence is expressly listed in the applicable banding document, the determining officer has no power to reclassify it. A separate offence arising under section 157(1) of the Environmental Protection Act 1990 may be capable of reclassification if it is not listed, but reclassification is justified only where the facts support the proposed band. The absence of strict liability, or the need to prove active participation, does not itself justify classification as a fraud case. The regulations confer no equitable discretion to equalise fees between advocates in a multi-handed case.

Amber Walker, counsel for Ann Frizell, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of her graduated fee in band 17.1.

Ann Frizell faced one count in an eight-count indictment concerning unlawful waste disposal. The count referred to sections 33(1) and 33(6) of the Environmental Protection Act 1990, and also section 157(1), concerning liability of an office-holder where a corporate offence occurs with that person’s consent, connivance or neglect. The first two provisions were expressly listed in Table B of the Banding of Offences document; section 157(1) was not.

The central issue was whether the section 157(1) offence should be reclassified from the default band 17.1 to band 6.1.

1. Appeal dismissed. The determining officer correctly confirmed the banding within band 17.1 under paragraph 3 of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 (paras 10–11, 19, 21).
2. Where an offence is expressly included in the Banding of Offences document, the determining officer has no power to reclassify it. The section 157(1) offence was different because it was not listed and was therefore capable of reclassification (paras 5, 15, 19).
3. The advocate may elect the offence on which the graduated fee is based. Ms Walker was entitled to rely on section 157(1), because it was the only provision capable of reclassification (para 9).
4. The fact that section 157(1) required proof of consent, connivance or neglect, and that submissions of no case to answer had focused on the absence of active participation, did not make the offence a fraud case warranting band 6.1. The facts showed participation in taking advantage of cheaper waste disposal, rather than fraud comparable to the conduct considered in [2024] EWHC 1321 (SCCO) (paras 12–18).
5. The need to prove active participation or an equivalent feature was not exceptional to band 17.1 offences. The standard cases allocated to that band included numerous examples requiring such proof (para 18).
6. Payment is based on the offences faced by the particular defendant. The regulations contain no equitable discretion permitting the court to equalise remuneration with that of other advocates involved in the same multi-handed proceedings (para 20).

• High Court (Senior Court Costs Office): Appeal under regulation 29 of the [2024] EWHC 2865 (SCCO) dismissed.
• Determining officer: Graduated fee recalculated and confirmed in band 17.1.