R v Winter

In assessing advocates’ fees under the Criminal Legal Aid (Remuneration) Regulations 2013, the court must consider all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved. It must allow a reasonable amount for work actually and reasonably done.

Work is not automatically excluded because it concerned grounds for which permission to appeal was refused. Reasonable preparatory work may include deciding which grounds to pursue, reviewing evidence and directions, and considering whether the conviction was unsafe or a retrial would be appropriate. The assessment must recognise both the appellate court’s findings and the continuing need for careful preparation.

Four advocates appealed assessments of their fees for two criminal appeals arising from references by the Criminal Cases Review Commission. The appeals concerned R v Martin Winter and Nathan Winter [2024] EWCA Crim 711, in which the convictions were upheld, and R v Campbell [2024] EWCA, in which convictions were overturned.

The Costs Officer had excluded work relating to grounds for which permission to appeal was refused and had substantially reduced the sums claimed. The Respondent accepted that the exclusion was based on an erroneous principle. The central issues were the proper approach to reasonableness and the amount of work reasonably undertaken.

1. The appeals succeeded. The Costs Officer had erred in treating work on grounds for which permission to appeal was refused as incapable in principle of attracting payment. The assessment remained governed by paragraph 1 of Schedule 3 to the Criminal Legal Aid (Remuneration) Regulations 2013.
2. In determining reasonable fees, the court had to consider all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved, and allow a reasonable amount for work actually and reasonably done.
3. The fact that the Court of Appeal had considered particular grounds hopeless or unarguable did not mean that all work connected with them was unreasonable. Counsel could reasonably need to decide which grounds to pursue, review the underlying judgment and jury directions, and investigate points before it became clear that no arguable point could realistically be advanced.
4. The appellate task extended beyond deciding whether individual grounds were made out. Counsel had to address whether the conviction was unsafe, assess the other evidence supporting it, and consider whether a retrial would be appropriate. Accordingly, detailed consideration of points raised before the jury could still be reasonable where it assisted that wider task.
5. The adjustment to the Costs Officer’s allowances was required but was to be modest. The assessment took account of the Officer’s experience, the advocates’ worklogs, the complexity and procedural history of the appeals, the fact that counsel acted without solicitors, and the continuing concern that some claimed periods were excessive.
6. The allowances were increased to 36 hours for Mr Sareen and 70 hours for Mr Birnbaum KC in Winter, and to 350 hours for Mr Birnbaum and 325 hours for Ms Slowe in Campbell. The Appellants were entitled in principle to the costs of the appeals, with the precise amounts to be agreed, subject to further directions if necessary.

• Costs Officer: Assessed substantially reduced fees and excluded work relating to grounds for which permission to appeal had been refused.
• High Court (Senior Court Costs Office): Allowed the appeals under regulation 29, corrected the error of principle, and modestly increased the allowances.