R v Asare

Under the Criminal Legal Aid (Remuneration) Regulations 2013, advocacy fees are determined by the advocate’s status, not simply by the nature or importance of the work performed. A led junior who conducts the case alone during the leading junior’s temporary absence does not thereby become a leading junior. The substitute-advocate provisions concern fee distribution, rather than the amount payable.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 by a leading junior barrister on behalf of a led junior. The led junior had conducted the defence for eight days while the leading junior was absent from the Crown Court trial. The Legal Aid Agency’s Determining Officer refused a supplemental claim seeking payment for those days at the leading-junior rate. The central issue was whether performing work normally undertaken by a leading junior changed the advocate’s status for remuneration purposes.

1. The appeal was dismissed.
2. The Regulations must be applied mechanistically. The fee payable does not necessarily reflect the amount or importance of the work performed.
3. The relevant question was whether the led junior actually became a leading junior during the eight-day absence. He did not, because he never led another junior. The reason why no substitute led junior was present was immaterial.
4. He could be regarded only as a led junior representing the defendant in the leading junior’s absence or, arguably, as a junior acting alone. Neither classification entitled him to the leading-junior fee.
5. The argument based on paragraph 26(4)(a) of Schedule 1 failed. A substitute advocate cannot be an instructed advocate or a trial advocate, and the advocate in question was both. In any event, the provision concerns fee distribution, not the amount of the fee payable.

• Legal Aid Agency Determining Officer: refused the supplemental claim for payment at the leading-junior rate.
• High Court (Senior Court Costs Office): dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.