R v Umar Hussain

For remuneration purposes, a trial may have begun in a meaningful sense even where the jury has been selected but not sworn. The relevant question is whether the court dealt with substantial matters of case management. Substantial means matters involving substance, rather than trivial, administrative or housekeeping matters. An application requiring the judge to retire to consider and give a ruling will ordinarily be a matter of substance. Two such applications may therefore justify payment of a trial fee rather than a cracked-trial fee.

Hurrairah Harris solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. They acted for Umar Hussain, who faced a two-count indictment alleging conspiracy to supply Class A drugs.

On the listed trial date, before the jury was sworn, the Crown made applications concerning bad character and the admission of co-defendants’ guilty pleas under section 74. The trial judge retired to consider the applications, granted both, and Hussain then pleaded guilty. The determining officer assessed the claim on the basis of a cracked trial, applying guidance in Lord Chancellor v Ian Henery Solicitors Limited. The issue was whether the applications constituted substantial case management such that the trial had begun in a meaningful sense.

1. Appeal allowed. The determining officer had applied the relevant guidance too narrowly by referring to whether the case-management matters were “so substantial”. The guidance required substantial matters, without imposing an additional threshold of exceptional or heightened substantiality.
2. Substantial case management involves work of substance, as opposed to trivial, administrative or housekeeping work. The court must assess the nature of the matters dealt with and may take a retrospective view of how the proceedings unfolded.
3. The applications in this case were substantial. The judge dealt with two applications, retired for about half an hour to consider the rulings, and then gave and recorded the decisions. The court-log timings showed that nearly two hours were spent on the applications. An application requiring the judge to retire to consider the ruling will ordinarily be an application of substance; dealing with two such applications clearly demonstrated substantial case management.
4. Bad character applications, commonly made during the trial so that the evidence can be assessed in context, were a further indication that the applications involved substantial case management. Treating such applications as irrelevant to trial-fee entitlement could encourage legal teams to delay applications until the trial had plainly begun.
5. The applications materially affected the defence because the admitted guilty pleas could be referred to in the Crown’s opening and thereafter. The applications also contributed to Hussain’s decision to plead guilty. The trial had therefore begun in a meaningful sense under the guidance in Lord Chancellor v Ian Henery Solicitors Limited.
6. The solicitors were entitled to the appropriate additional payment, together with £1,000 exclusive of VAT for costs and the £100 paid on appeal.

1. High Court (Senior Court Costs Office): appeal under regulation 29 allowed. The solicitors were entitled to a trial fee and the specified additional costs.
2. Determining officer: assessed the claim as a cracked trial. That decision remained unchanged on reconsideration and under the written-reasons procedure.