R v Arsen Sejdia

For the purposes of the Litigator’s Graduated Fees Scheme, a trial may begin in a meaningful sense before the prosecution opens its case or calls evidence. The question is fact-sensitive. Swearing the jury is not conclusive, but substantial matters of case management after swearing may establish that the trial has begun. A contentious application involving significant disclosure issues, requiring substantial judicial engagement over two sitting days and materially affecting the basis of a subsequent guilty plea, may therefore justify payment of a trial fee rather than a cracked-trial fee.

Vienna Kang Advocates Ltd appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of an LGFS claim. The Defendant had been charged with production of cannabis and initially pleaded not guilty. After the jury was sworn, the prosecution raised a bad-character application which was adjourned because of disclosure concerns. Following further disclosure, the application was abandoned and the Defendant changed his plea to guilty on agreed facts.

The issue was whether the hearing on 29 and 30 August 2023 was a trial or a cracked trial.

1. Appeal allowed. The Appellants’ claim was to be paid as a trial, with the £100 appeal payment added.
2. The applicable question was whether, despite the absence of an opening by the prosecution, the court had engaged in substantial matters of case management so that the trial had begun in a meaningful sense.
3. The guidance in Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB) established that swearing the jury was not conclusive. A trial could begin without evidence being called, and the court had to consider how events had unfolded and whether substantial case-management matters had been dealt with.
4. On the facts, the bad-character issue was not a straightforward pre-trial application. It turned on complex disclosure from the Immigration Service through the National Referral Mechanism and occupied two fairly complete sitting days. The issue, and the eventual basis of the guilty plea, were repeatedly debated before the judge, who gave directions concerning progress and procedure.
5. Although each case depended on its facts, it was generally undesirable for advocates to receive only a cracked-trial fee where they had been properly and fairly fully engaged for two or more sitting days. The trial had therefore effectively begun.

The judgment states that this was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency Determining Officer’s decision on the Appellants’ LGFS claim. The appeal was allowed.