R v Mullen

Under the Litigators’ Graduated Fee Scheme, the replacement, staying or preferring of indictments does not automatically create more than one “case” or entitlement to more than one fee. The relevant question is whether the later indictment involved a substantive change in the nature of the criminality alleged against the assisted person. Administrative changes required by the Crown Court’s digital case-management system do not, without more, create a separate case. Changes concerning co-defendants may be immaterial. A significant amendment to the alleged period of offending may amount to a substantive change, but does not necessarily establish that there had previously been more than one case.

Hussain Solicitors represented Jordan Mullen in Crown Court proceedings funded by criminal legal aid. The solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determination that only one fee was payable under Schedule 2.

Several indictments were uploaded, stayed or replaced during the proceedings. The Appellant claimed an additional fee for an earlier stayed indictment, contending that the procedural changes created a second “case”. The central issue was whether the indictment history represented one case or two cases for remuneration purposes.

1. The appeal was dismissed. The Appellant was not entitled to an additional fee.
2. Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 defines “case” as proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The possibility of more than one fee therefore depends on whether there were separate cases against the Defendant.
3. The fact that one or more indictments were stayed and another indictment was preferred does not, by itself, establish more than one case. The Crown Court’s digital case-management arrangements may make such steps administratively necessary even though the substance of the case remains unchanged.
4. The relevant distinction is between administrative or non-substantive alterations and a substantive change in the nature of the criminality alleged against the defendant. In the former situation, there is one case and one fee. In the latter, more than one case and more than one fee may be justified.
5. The changes to the Defendant’s indictments before April 2023 concerned principally the identity of co-defendants and did not materially alter the criminality alleged against him. The later extension of the alleged conspiracy period, between April 2023 and January 2024, was a significant amendment, but did not demonstrate that there had previously been two cases.
6. The claimed guilty plea on 16 March 2023 was unsupported by the available records. In any event, it could not alter the conclusion that the proceedings constituted one case for remuneration purposes.

• High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
• Determining Officer: determined that only one fee was payable. No citation is stated in the judgment.