R v Ladine Eastwood & Anor

For the purposes of the Litigator’s Graduated Fees Scheme, whether a trial has begun is determined by substance rather than by a single procedural event. Swearing the jury, opening the case and calling evidence are strong indicators, but none is invariably conclusive. A trial may begin without a sworn jury where substantial case management forms part of a continuous process leading to trial. Conversely, routine pre-hearing administration, including preparation or amendment of an agreed-facts document, does not amount to substantial case management merely because it occurs on the listed trial day. The court must assess how events unfolded and whether the case was dealt with in a meaningful sense.

The appellants represented two defendants charged with indictable drug offences. The defendants had pleaded not guilty at a pre-trial preparation hearing and the matter was listed for trial. On the trial date, advocates spent about two hours discussing and amending an agreed-facts document. When the case was called on, the co-defendant pleaded guilty, the prosecution offered no evidence against Ms Eastwood, and she was acquitted within minutes.

The Determining Officer allowed a cracked-trial fee rather than a trial fee. The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 concerned whether the hearing had begun as a trial in a meaningful sense.

1. Appeal dismissed. The fee was correctly treated as a cracked trial rather than a trial.
2. The court adopted the guidance summarised by Spencer J in Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB). Whether a trial has begun is not determined conclusively by whether a jury has been sworn. A trial plainly begins where the jury has been sworn, the case opened and evidence called. It may also begin without a sworn jury where submissions or other steps form part of a continuous process leading to the empanelling of the jury, opening of the case and calling of evidence.
3. In modern long cases, selection of a jury without swearing may indicate that the trial has begun where the court is dealing with substantial matters of case management. The assessment is fact-sensitive. It may be necessary to consider how events unfolded rather than deciding the issue solely by reference to what had occurred at an earlier point.
4. The court accepted the observation in R v Barnes [2022] EWHC 1529 (SCCO) that substantial case management means more than expected pre-trial preparation concerning matters such as bundles and evidence.
5. On the facts, the two-hour discussion and amendment of the agreed-facts document was ordinary pre-hearing administration typical of a complex drugs case. It involved no judicial intervention, determination or indication. It therefore did not constitute substantial case management, and the trial had not begun in a meaningful sense.

• High Court (Senior Court Costs Office): Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
• Legal Aid Agency Determining Officer: Allowed a cracked-trial fee rather than the trial fee claimed. No citation was stated in the judgment.