R v Sandel

For the purposes of the criminal legal aid graduated fee scheme, whether a second hearing is a retrial is a fact-sensitive question. A retrial may exist even where the first trial did not run its course and even where no formal written order was made. The court may infer that an order for a retrial was made from the circumstances, including court records or correspondence. The relevant inquiry is whether, viewed in the round, the second hearing formed part of the same procedural and temporal matrix as the first. The interval between hearings, changes of judge and legal team, developments in the evidence and the nature of the proceedings may all be relevant. Paragraph 13 of Schedule 2 does not require the retrial to have been listed before the original litigator transferred the funding.

Hussain Solicitors represented the defendant in Crown Court proceedings under a representation order made on 1 August 2021. The first trial began on 8 March 2022 and was aborted on 25 April 2022 after 30 days of court time. Funding was transferred to another firm on 9 November 2022. A further hearing began in January 2024 before a different judge, with a different defence team, new indictments, additional evidence and further legal applications. The defendant was convicted on 9 February 2024.

The Legal Aid Agency’s Determining Officer refused the transfer-before-retrial fee, treating the proceedings as one trial. The issue on appeal under regulation 29 was whether paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 applied.

1. The appeal succeeded. The Appellant was entitled to the additional payment under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, together with £1,500 exclusive of VAT for costs and the £100 appeal fee.
2. Paragraph 13 did not require the retrial to have been listed before the transfer of funding. Timing was therefore not determinative.
3. There is no statutory definition of trial, retrial or new trial. Decisions on the issue are fact-specific and non-binding. The central question is whether the second hearing formed part of the same procedural and temporal matrix as the first.
4. An order for a retrial need not be formal or in writing. It may be inferred from the circumstances. The court accepted that the correspondence from the Crown Court indicated that an order for a retrial had in fact been made.
5. The first trial need not have run its course before the second hearing can amount to a retrial. To the extent that R v Cato and R v Forsyth suggested otherwise, that approach had been superseded.
6. The additional evidence and unused material were not independently decisive. Considered with the interval of more than 20 months, the change of judge and the change of defence team, however, they made it unrealistic to characterise the January 2024 hearing as a continuation of the earlier trial. It was a retrial.

• High Court (Senior Court Costs Office) — appeal under regulation 29 allowed; the Legal Aid Agency’s refusal was displaced and the appropriate additional payment was ordered.