R v Tyrrell

For a cracked-trial fee, the defendant must have entered a plea of not guilty at the first hearing at which a plea was entered. An earlier indication of an intended plea, even if communicated to the prosecution, is insufficient. The relevant provisions are clear and do not permit a purposive expansion of the procedural threshold. Where the case was listed for trial but there was nevertheless a hearing at which the defendant entered a plea, the alternative cracked-trial route is unavailable. The graduated fee scheme may produce uneven outcomes because it uses defined, block-rated criteria, but that consequence cannot alter the statutory meaning.

The appellant solicitors represented a defendant charged with historic sexual offences in the Crown Court. Although an email indicated that he intended to plead not guilty, no plea was formally entered at the earlier hearing. The indictment was served later, the defendant was arraigned and pleaded not guilty, and the prosecution then offered no evidence.

The Determining Officer assessed the remuneration as a guilty-plea fee under the Criminal Legal Aid (Remuneration) Regulations 2013. The solicitors appealed under regulation 29, contending that the earlier indication should count as entry of a not-guilty plea and that the case therefore qualified as a cracked trial.

1. Appeal dismissed. The relevant remuneration was properly calculated on the basis of a guilty plea. There was no order as to the costs of the appeal.
2. An indication that a defendant intends to plead not guilty is not the entry of a plea for the purposes of paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The distinction remains even where the indication has been communicated to the prosecution.
3. The wording of the cracked-trial definition is clear. It identifies the entry of a plea as a recognisable procedural threshold. No principle of statutory interpretation permitted the court to treat a communicated intention as satisfying limb (a).
4. The block-rated nature of the scheme, and the possibility that substantial preparatory work may receive a lower fee, did not justify altering the statutory meaning. Difficulties concerning fitness to plead, instructions or evidential proof reinforced the need for a clear procedural criterion.
5. Limb (b) did not assist the appellant. Following the approach identified in R v Barzey and the reasoning adopted in Marks v Lord Chancellor (otherwise known as R v Gatherar), limb (b) is concerned with cases in which there has been no hearing at which the assisted person entered a plea. Here there had been such a hearing, at which the defendant pleaded not guilty.

• High Court (Senior Court Costs Office): appeal under regulation 29 dismissed. The Determining Officer’s assessment of a guilty-plea fee was upheld.