R v Alfie Muylders

For a cracked trial fee, it is sufficient that an assisted person pleads not guilty to at least one count and the prosecution subsequently offers no evidence or otherwise does not proceed with that count, provided the prosecution had not indicated before or at the first plea hearing that it would not proceed.

Where the defendant has been arraigned and a plea has been taken, there is no additional requirement to establish a settled intention to proceed to trial. That requirement applies only to cases listed for trial without a hearing at which a plea is entered.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of her graduated fee as a guilty plea fee rather than a cracked trial fee.

The defendant pleaded guilty to causing actual bodily harm and not guilty to burglary at a pre-trial preparation hearing. The case was listed for a further hearing while the prosecution considered whether to accept the pleas. At that hearing, the prosecution offered no evidence on the burglary count. The central issue was whether those circumstances satisfied the Schedule 1 definition of a cracked trial.

The appeal was allowed. The appellant was entitled to the appropriate additional payment, together with £250 plus VAT for the appeal costs and the £100 appeal fee.

1. The relevant definition in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 was satisfied. The defendant had pleaded not guilty to one count at the first hearing at which he entered a plea. The case did not proceed to trial because the prosecution subsequently offered no evidence. The prosecution had not declared before or at that first plea hearing that it would not proceed with the burglary count.
2. The determining officer had misread paragraph (a)(ii)(bb). The fact that the prosecution indicated an intention not to proceed on 2 December 2024, having not previously done so, placed the case within that limb rather than outside it.
3. The purpose of a cracked trial fee is met where the defendant initially intends to defend at least one count and the prosecution later abandons that prosecution. Once the defendant has been arraigned, the prosecution’s intention to proceed is established for the purposes of the Regulations.
4. No further evidence of a genuine and settled intention to proceed to trial was required. The authorities cited by the determining officer, R v Barzey and R v Shah, concerned limb (b) cases in which no plea had been taken. Their reasoning did not impose such a requirement where the defendant had entered a plea.

The issue concerning the trial advocate and instructed advocate was left open, subject to any further directions if the parties considered it material.

• Senior Courts Costs Office, High Court: The determining officer calculated the graduated fee as a guilty plea fee. Senior Costs Judge Rowley allowed the appeal under regulation 29 and directed payment of the appropriate additional amount and appeal costs.