R v Jordan Lee

For graduated criminal legal aid fees, a trial begins only when it has started in a meaningful sense. The question is fact-sensitive. Swearing a jury is not conclusive, although a trial will ordinarily have begun where the jury has been sworn and the case opened or evidence called. A trial may also begin without a sworn jury where a continuous process of submissions leads to empanelling, opening and evidence, or where substantial case-management matters are dealt with after jury selection. Routine pre-trial preparation and negotiations leading to a guilty plea do not, without more, amount to the beginning of a trial. A court log is not determinative.

Harris Solicitors represented Jordan Lee in the Crown Court at York. The Defendant pleaded not guilty to two counts and a trial was listed. On the trial date, counsel discussed possible sentence indications, the prosecution evidence and a possible widening of the indictment. The Defendant was then re-arraigned, pleaded guilty to one count, and the prosecution offered no evidence on the other. No jury had been selected or sworn.

The solicitors were paid the graduated fee for a cracked trial but appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, contending that a trial fee was payable. The central issue was whether the proceedings had begun in a meaningful sense before the guilty plea.

1. The appeal was dismissed. The applicable graduated-fee provisions were those in force when the Representation Order was made. Schedule 2 defined a cracked trial, but the Regulations did not define trial.
2. The court applied the meaningful-sense test identified by Spencer J in Lord Chancellor v Henery [2011] EWHC 3246 (QB). Whether a trial has begun depends on the facts. Swearing a jury is not conclusive. A trial plainly begins where the jury has been sworn, the case opened and evidence called, and it may begin where the jury has been sworn and the prosecution has opened the case to any extent. It may also begin without a sworn jury where submissions form part of a continuous process leading to empanelling, opening and evidence, or where substantial case-management matters are dealt with after jury selection.
3. The court considered differing approaches in R v Wood (SCCO 178/15), R v Cox [2023] EWHC 270 (SCCO), R v Pipe [2024] EWHC 106 (SCCO) and R v Sallah (SCCO 281/18, 18 March 2019). The decisions were fact-specific and non-binding.
4. The discussions on the trial date did not amount to substantial case management. Counsel expressly stated that no formal ruling was sought. The judge gave only an indication that the evidential issue would probably be dealt with by widening the indictment, treating it as routine. The work undertaken was ordinary pre-trial preparation and negotiation of the kind associated with a cracked trial.
5. Neither the alleged indication by the court clerk nor the court log could determine whether a trial had begun. The Appellant had not demonstrated that the trial had started in a meaningful sense.

High Court (Senior Courts Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The solicitors remained entitled only to the graduated fee for a cracked trial.