R v Adam Humphreys

Whether a resumed criminal hearing is a new trial depends on the substance of what occurred, not merely on the absence of a formal retrial order. Relevant circumstances include the interval between hearings, what was achieved at the first hearing, the length and preparation of the subsequent hearing, and changes of judge, jury and advocates.

Where a new advocate was not involved in the earlier hearing, the remuneration provisions concerning the same trial advocate appearing at both trials do not govern. The regulations should not be applied so as to leave the second advocate without fair remuneration or frustrate the administration of justice.

The appellant, Nicholas Berry, appealed against the refusal of remuneration by the Legal Aid Agency. He had been instructed for a second hearing after an earlier criminal trial had begun, but the jury was discharged when the defendant became ill and the trial could not be completed within the available time.

More than six months later, the matter was listed before a new judge, with a new jury and new advocates. The Legal Aid Agency treated the second hearing as part of the same trial matrix and considered that the original advocate should claim the relevant fee. The central issue was whether the second hearing was a new trial for remuneration purposes.

1. Appeal allowed. The second hearing was properly characterised as a new trial rather than merely a continuation or second leg of the first hearing.
2. The first hearing had not run its course, but that fact was not determinative. The court considered the substantial interval, the limited progress made at the first hearing, the deliberate two-day listing for the later hearing, and the absence of any apparent time saving from the earlier hearing.
3. The changes of judge, jury, prosecution advocate and defence advocate were significant. The later advocate had not been briefed for or involved in the first hearing. In these circumstances, the change of advocate could have the same practical significance as the temporal break relied upon in the remuneration scheme.
4. The court concurred with the reasoning in R v Nettleton (SCCO 58/13), where proceedings involving a new judge, new jury and new counsel, after a substantial interval, were treated as a new trial rather than a continuous process.
5. Schedule 1, paragraphs 2-3 of the Criminal Legal Aid (Remuneration) Regulations 2013 contemplated the same trial advocate appearing at both trials. That was not the situation here. The court was not directed to any mechanism for equitable sharing of fees between the advocates.
6. It would create an unacceptable lacuna if the appellant could be remunerated only as though he were the original advocate. The regulations were not intended to frustrate the administration of justice. The appellant was therefore to be remunerated accordingly.
7. Costs were allowed in the sum of £500 plus VAT and the court fee.

• Legal Aid Agency: refused the appellant’s claim, treating the October 2023 hearing as part of the same trial matrix as the April 2023 hearing.
• High Court (Senior Court Costs Office): allowed the appeal and directed that the appellant be remunerated accordingly.