R v Jian Wen

Whether a second Crown Court proceeding is a retrial or a new trial for remuneration depends on the substance of what occurred, rather than labels in court records or the prosecution’s description. A new indictment may remain merely an amendment where it concerns the same underlying criminality. Conversely, adding a count may amount to a new trial where it substantially and substantively develops the alleged criminality or radically changes the case, including the nature and volume of evidence, the value involved, and the sentencing consequences. The assessment is fact sensitive. Where the additional count changes the character and seriousness of the case in that way, the second trial is remunerated as a new trial and is not subject to the 20% retrial reduction.

The appellant advocate represented the defendant in two Crown Court trials arising from a multi-count money-laundering prosecution. At the first trial, the jury could not agree on two counts and the defendant was otherwise acquitted. Before the second trial, the indictment was renumbered and a further count concerning the cryptocurrency wallet known as the Rainbow wallet was added.

The Determining Officer treated the second proceeding as a retrial and applied the 20% reduction to the second trial fee. The appeal concerned whether the Rainbow count represented a substantial development or radical change in the alleged criminality, so that the second proceeding should instead be remunerated as a new trial.

1. Appeal allowed. The appellant was entitled to the 20% shortfall deducted from the remuneration for the second trial, together with the appeal fee and costs.
2. The assessment was necessarily fact sensitive. The court had to examine what occurred in substance. References in court logs to an indictment being amended, stayed or freshly preferred, and the prosecution’s description of the proceeding as a retrial, were not determinative.
3. The relevant question was whether the changes constituted more than a technical amendment and represented a substantial, substantive development in the alleged criminality, such that the case had evolved into two cases. Relevant considerations included the nature and seriousness of the criminality, the value involved, the volume of transactions, the nature and volume of evidence, and the potential sentencing consequences.
4. The Rainbow count alleged a separate money-laundering arrangement involving approximately 2,700 bitcoin and a value exceeding £37 million. Its addition materially increased the value and transactions under investigation, substantially enlarged the evidence, and altered the significance of the renumbered counts. It introduced a new dimension and criminality of materially greater seriousness.
5. The approach in R v Anjum was useful in considering whether charges arose from a connected course of conduct. The present case nevertheless went beyond a connected continuation of the same case. The circumstances were unlike R v Wharton and R v Moore, where the changes did not amount to a new case. The reasoning in R v Brazendale and R v Rafiq supported treating substantial changes in the alleged criminality and evidence as creating two cases.
6. The second proceeding was therefore to be remunerated as a new trial, without the 20% retrial discount. The Respondent was ordered to repay the £100 appeal fee and pay £1,000 costs, net of VAT, with VAT where applicable.

The judgment records an appeal against a Determining Officer’s redetermination of the appellant’s criminal legal aid remuneration. No citation for the appealed decision is stated.