R v William McGinley

For a subsequent intended trial to attract a cracked trial fee, the case must be ready for trial and listed as a fixture or placed in a warned list. An adjournment to allow the prosecution to decide whether to proceed does not automatically prevent that fee. The court must assess the practical circumstances, including whether a further trial was the settled expectation of the parties and court and whether a fixture was actually arranged. Where those essential elements are satisfied, the fee may be payable even though the prosecution later offers no evidence.

The appellant, counsel for a defendant in a complex Crown Court prosecution, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The Legal Aid Agency initially allowed a cracked trial fee but later reversed that decision and treated the payment as an overpayment.

The proceedings had involved an original trial and several re-trials. After the jury was discharged on 12 October 2022, the case was adjourned for the prosecution to decide whether to proceed. A further trial date was nevertheless fixed for 8 April 2024. On 18 November 2022 the prosecution offered no evidence. The issue was whether the circumstances entitled the appellant to a cracked trial fee rather than a re-trial fee.

1. Appeal allowed. The AGFS claim was directed to be assessed to include a cracked trial fee for 18 November 2022. The £100 appeal fee was also ordered to be repaid.
2. The Criminal Legal Aid (Remuneration) Regulations 2013, as amended, applied. The relevant Crown Court fee guidance required, for a second or subsequent intended trial, that the case again be ready for trial and be given a fixture listing or placed in a warned list.
3. The case occupied a borderline position. It had been adjourned for the prosecution to determine whether it would seek another re-trial. However, the settled expectation of the prosecution, defence and court was that another trial would take place, and the case was considered ready for hearing. The court accordingly directed that a fixture be listed for 8 April 2024.
4. Those circumstances satisfied the essential requirements of the applicable guidance. The later decision by the prosecution to offer no evidence did not retrospectively deprive the appellant of entitlement to the cracked trial fee.
5. The decision in R v Pelepenko [2002], 3rd October, SCCO Ref: X27A, relied on by the Respondent, did not require a different result on these particular facts. The original decision of the Determining Officer was correct, and the later attempt to reclaim the payment as an overpayment was unsustainable.

1. High Court (Senior Court Costs Office): Appeal under regulation 29 allowed. The appellant’s claim was remitted for assessment including a cracked trial fee, and the £100 appeal payment was ordered to be repaid.
2. Legal Aid Agency Determining Officer: Initially allowed a cracked trial fee, but subsequently reversed that decision and sought recovery of the payment as an overpayment.