R v Sohidul Mohamed

Under the graduated fee scheme, replacing a stayed or quashed indictment with another indictment does not ordinarily create a second case. The relevant question is whether there has been a substantial change in the case in substance and law. Administrative or procedural changes, including amendments, joinder, changes in the order of defendants and a defendant becoming unfit to stand trial, will generally remain part of one case.

A second trial or retrial requires more than the discharge of one jury, the service of fresh evidence or a change in the way the prosecution presents its case. The court must assess whether the two stages occurred within the same procedural and temporal matrix, having regard to matters including the progress and length of each stage, the interval between them and substantive differences in the prosecution case.

These conjoined appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 concerned graduated fees claimed by solicitors who represented defendants in related Crown Court proceedings.

The appellants argued that staying the original indictment and preferring a new indictment created two cases for remuneration purposes. They also argued that the discharge of the first jury, the later empanelling of a new jury and developments in the evidence resulted in a trial followed by a retrial or new trial.

The court also considered a disbursement claim by Achillea & Co Solicitors. The central questions were whether there had been two cases and whether there had been a trial and a further trial or retrial.

1. One case. Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 provides remuneration for each case on indictment. The staying of one indictment and preferment of another does not, by itself, create two cases. The replacement indictment is generally a continuation of the same proceedings where the earlier indictment cannot be pursued separately and there has been no substantial change in the case.
2. The court followed the substance of the approach in R v Abada, R v Arbas-Khan, R v Nash and R v Martin. A different result may arise where two freestanding indictments are materially different, as explained in R v Horsfall. The changes relied on here, including additional evidence, the altered order of defendants and a co-defendant’s finding of unfitness, did not substantially change the criminality alleged.
3. The construction was reinforced by the scheme’s operation as a block-rated scheme and by the presumption against an anomalous or irrational result. The alternative principle in Inco Europe Limited v First Choice Distribution also supported giving effect to Parliament’s evident intention if the statutory wording failed fully to express it.
4. Trial and retrial. An order for a retrial is generally significant, but the court must consider whether the two stages fall within the same procedural and temporal matrix. Relevant factors include the interval between the stages, whether the first stage had run its course, their relative lengths and substantive differences in the prosecution case. Fresh evidence and the discharge of a jury are not determinative.
5. Applying that approach, the first stage had progressed no further than opening submissions, the interval was short, there was no change of advocates or judge, and the proceedings continued as a substantially continuous process. There was therefore one continuous trial, not a retrial. R v B also illustrated that proceedings may continue on the same indictment where one defendant is unfit to plead.
6. The appeals failed on the issues concerning the number of cases and trials. Achillea & Co succeeded only in respect of agreed disbursements. The court contemplated a contribution of £200 towards those appellants’ costs, subject to objections within 14 days. No costs direction was made for the other appellants.

The judgment records appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from determinations by Legal Aid Agency Determining Officers. The appeals were unsuccessful on the issues concerning the number of cases and whether there had been a retrial.