R v Mohammed Ali

For special preparation remuneration, the relevant factual issue must be outside the usual professional experience in cases of the same type. The assessment may take account of the cumulative effect of several unusual features, even where each feature alone would be insufficient. Material served as unused evidence is not thereby excluded, since a successful special-preparation claim is payable in addition to the graduated fee. The claimed work must be substantially more than the preparation normally undertaken in comparable cases. That assessment concerns preparation as a whole, including cross-referencing and analysis, rather than reading time alone.

Brian Neill KC appealed against the determining officer’s refusal of Mr O’Neill’s claim for special preparation remuneration. The claim arose from preparation for a second retrial in a murder prosecution. Counsel had joined the case late, after two earlier trials, and had to consider lengthy transcripts in circumstances involving a conspiracy to pervert the course of justice.

The issues were whether the case involved a factual issue outside the usual professional experience and, if so, whether the preparation claimed was substantially in excess of the amount normally undertaken in cases of the same type.

1. Appeal allowed. The combination of two retrials, late instruction of leading counsel and the conspiracy to pervert the course of justice created a factual issue outside the usual professional experience for the purposes of paragraph 17(1)(a) of the Legal Aid (Remuneration) Regulations 2013.
2. The determining officer’s alternative reasoning, that the transcripts were unused material falling within the graduated fee, was unsustainable. Paragraph 17(2) expressly provides that special preparation is payable in addition to the graduated fee.
3. The assessment required a comparison with the preparation normally undertaken in cases of the same type. A minutes-per-page calculation was inadequate because the regulation concerns preparation time, not merely reading time. Preparation could involve cross-referencing witness statements and exhibits.
4. The first transcript represented work that would ordinarily have been required had counsel been instructed between the original trial and the first retrial. The second transcript resulted from the unusual second retrial and the related factual circumstances. The time spent on it was approximately 50 per cent more than the time spent on the first transcript, satisfying the requirement that preparation be substantially in excess of normal preparation.
5. Mr O’Neill was therefore entitled to 40 hours’ special preparation under paragraph 17(1)(a), together with a contribution towards the costs of the appeal and the appeal fee.

• High Court (Senior Court Costs Office) — appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed. The determining officer’s refusal was reversed and 40 hours’ special preparation was awarded.