R v Curtis Howarth

For the purposes of the Litigator’s Graduated Fees Scheme, a formal retrial order is not essential where the first jury is discharged before the trial has concluded and the case is relisted. Discharging the jury and ordering relisting necessarily amounts to ordering a new trial.

Whether hearings constitute one continuous trial or a trial followed by a new trial depends on the factual and procedural circumstances. Relevant matters include the interval between hearings, changes in judge, advocates, jury and co-defendants, and material developments in the evidence. Where those matters break the temporal and procedural continuity of the proceedings, the claim should be assessed as a trial followed by a new trial.

JNW Solicitors LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of a Litigator’s Graduated Fees Scheme claim.

The solicitors represented a defendant facing conspiracy to defraud and money-laundering charges. The jury was discharged on the second day of the first hearing because one or more jurors had pre-booked holidays. The matter was relisted nearly 11 months later, before a different judge, with a new jury and materially developed evidence. The defendant was acquitted after the second hearing.

The issue was whether the claim should be paid as one continuous trial or as a trial followed by a new trial.

1. Appeal allowed. The claim was directed to be assessed as a trial followed by a new trial. The £100 appeal payment was also to be returned.

2. Paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 and paragraph 2(2) of Schedule 1 were considered. To the extent that the Regulations technically require an order for a new trial or retrial, that requirement was satisfied. A formal order was unnecessary because the first hearing had not concluded when the jury was discharged. Discharging the first jury and ordering the case to be relisted necessarily ordered a new trial.

3. The court rejected the Respondent’s submission that the hearings formed one continuous 23-day trial. The relevant question was whether the temporal and procedural matrix had been broken. The nearly year-long interval, the change of judge, differences in advocacy, the empanelling of a new jury, the altered co-defendant position and the substantial development of the evidence collectively demonstrated such a breach.

4. The assessment is fact-sensitive. No single factor is determinative, and the absence of an express judicial statement describing the second hearing as a new trial is not conclusive.

• Legal Aid Agency: The Determining Officer assessed the claim as one continuous trial.
• High Court (Senior Court Costs Office): The appeal was allowed and the claim was directed to be assessed as a trial followed by a new trial.