R v Jamal Miah

For the purposes of the graduated fee scheme, a trial may begin in a meaningful sense before the jury is sworn. The question is whether substantial matters of case management have been dealt with as part of the trial process. A bad-character application, particularly one ordinarily determined during the trial and capable of materially affecting the defendant’s decision whether to plead guilty, may constitute substantial case management. Ordinary agreement of facts and routine disclosure matters ordinarily do not. The court must assess how events unfolded, rather than treat the absence of a sworn jury or the trial judge’s conventional description of the hearing as conclusive.

Harwood Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer calculated the litigator graduated fee on the basis of a cracked trial rather than a trial fee.

The defendant had been charged with conspiracy to commit 13 burglaries. Before the jury was sworn, the trial judge determined the prosecution’s application to adduce six previous burglary convictions as bad-character evidence. The defendant then pleaded guilty. The central issue was whether the bad-character hearing amounted to substantial case management such that the trial had begun in a meaningful sense.

1. Appeal allowed. The graduated fee was to be calculated on the basis of a trial fee rather than a cracked trial fee. The solicitors were also entitled to the appropriate appeal costs, including £500 exclusive of VAT and the £100 paid on appeal.
2. The court applied the guidance summarised by Spencer J in The Lord Chancellor v Ian Henery Solicitors Limited, [2011] EWHC 3246 (QB), particularly the principle that a trial may have begun in a meaningful sense where substantial case-management matters have been dealt with, even though the jury has not been sworn.
3. The trial judge’s view that there had been no trial was understandable in the ordinary Crown Court sense, but it was not determinative for the purposes of the Regulations. The question required a more nuanced assessment of the proceedings and how they unfolded.
4. The determining officer was wrong to characterise the bad-character application as an ordinary pre-trial application. Counsel’s evidence that such an application would normally be dealt with during the trial was preferred. That view was supported by the trial judge’s description of the proposed timing as sensible.
5. Bad-character applications are governed by a separate section of the criminal procedure rules and must be determined by the judge, with the ruling given in court. In the circumstances, determining the application before the jury was sworn did not prevent it from being substantial case management. The application could materially affect the defendant’s decision whether to plead guilty.
6. Agreement of facts and some disclosure discussions were ordinary case-management matters and did not, by themselves, establish that the trial had begun. The bad-character ruling, however, was sufficiently substantial to satisfy the meaningful-trial test.

• Determining officer: Calculated the litigator graduated fee as a cracked trial fee.
• High Court (Senior Court Costs Office): On appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, allowed the appeal and directed calculation on the basis of a trial fee.