R v Elijah Heart

Whether a second hearing is a retrial or a separate new trial for criminal legal-aid remuneration is a question of fact. The presence or absence of a judicial order for a new trial is not determinative. The court must examine the factual reality of the proceedings.

The threshold for remunerating a second hearing as a trial followed by a new trial is high. Ordinary changes such as elapsed time, a different judge, counsel or jury may be insufficient. Material changes to the indictment, the defendant’s role, the parties tried together and the evidence may, cumulatively and exceptionally, justify treating the hearing as a new trial.

RH Law Solicitors Limited appealed against the Legal Aid Agency determining officer’s decision on remuneration for representing Elijah Heart in a second Crown Court hearing. The first hearing, described as Trial 1, began in July 2022 but halted after about two and a half days because of the defendant’s ill-health. The defendant later stood trial with co-defendants in Trial 2, which ran for 12 days in October and November 2024.

The first trial fee had been paid. The dispute was whether Trial 2 attracted a further full trial fee or only the 25 per cent fee applicable to a retrial under the Criminal Legal Aid (Remuneration) Regulations 2013. The central issue was whether Trial 2 was a retrial or a separate new trial.

1. The appeal was allowed. The matter was remitted to the Legal Aid Agency to determine any further remuneration due.
2. Under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, where an order for a retrial is made and the same litigator acts at both hearings, the retrial fee is 25 per cent of the appropriate trial fee. The provision did not itself resolve whether the second hearing was a retrial or a new trial.
3. The distinction between a continuous trial, a trial and retrial, and a trial followed by a new trial is factual. It cannot be inferred. The court must assess what actually occurred. The existence or absence of an order for a new trial is relevant but not determinative.
4. The ordinary factors relied on by the Respondent—elapsed time, a change of judge, counsel and jury—could fail to establish a new trial. In the present case, however, the combination of severance and later rejoinder, the change from a single-defendant trial to a trial involving active participation in a wider conspiracy, and several thousand pages of additional evidence, including video evidence, materially altered the case.
5. The additional evidence also supported a substantially different prosecution case concerning the defendant’s role. Those features were unique to the case and, taken together, crossed the high threshold for remuneration on the basis of a trial followed by a new trial rather than a retrial.

This was an appeal against a Legal Aid Agency determining officer’s redetermination. The judgment does not give a separate citation for that decision.