R v Singh

Whether a trial has begun for a graduated fee is a fact-sensitive question of whether proceedings have advanced in a meaningful sense. Swearing the jury is not conclusive. The court must assess how events unfolded against the guidance in Lord Chancellor v Henery [2011] EWHC 3246 (QB), including whether the case was opened, evidence called or substantial case management undertaken. Substantial case management may be delegated to the parties in an appropriate case, but ordinary housekeeping, plea discussions and an unargued application do not establish a trial. A contemporaneous indication by the trial judge that the trial has not started is not binding, but carries considerable weight. Guilty pleas before opening therefore attract the cracked-trial fee where no meaningful trial has occurred.

These were appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 by Harris Solicitors and Gray’s Defence Solicitors from the Legal Aid Agency’s Determining Officer. The firms had represented Harminder Singh and Julia Clancy respectively in the Bradford Crown Court. Both defendants pleaded guilty to an amended indictment on 24 June 2025, after a jury had been sworn on the preceding day. Each solicitor had received a cracked-trial graduated fee and sought a full trial fee. The central issue was whether the proceedings had begun in a meaningful sense before the pleas, having regard to the jury, housekeeping, a proposed bad-character application and plea discussions.

The appeals were dismissed. The court had to decide whether either proceeding had reached a trial for the purposes of the graduated fee scheme.

1. Meaningful start. The court treated Lord Chancellor v Henery [2011] EWHC 3246 (QB) as providing the governing guidance. Swearing a jury is not conclusive. A trial plainly begins where the jury is sworn, the case is opened and evidence is called. It may also begin without a sworn jury where submissions form a continuous process leading to empanelling, opening and evidence, or where substantial case management has occurred. The question remains fact-specific and may require assessment of events as they unfolded.
2. Case-management authorities. Costs Judge decisions are not binding and cannot be used to create a definitive checklist. The approach in R v Wood SCCO 178/15 was regarded as consistent with Henery. The court explained that R v Cox, R v Pipe and R v Sallah SCCO 281/18 recognised that substantial case management delegated to the parties may, in an appropriate case, be materially indistinguishable from work undertaken by the court.
3. Application. The jury had been selected and sworn, but the trial judge dealt only with housekeeping, counsel availability, bail and the jury’s functions. The proposed bad-character application was not ruled upon, and there was no opening or evidence. The judge’s clear indication that the trial had not started was not binding, but carried considerable weight. It was difficult to treat the matter as a trial for remuneration purposes when the guilty pleas and sentencing position were dealt with on a pre-trial basis.
4. Fee consequence. Discussions between prosecution and defence which avoid a trial are typical of a cracked trial and do not themselves constitute substantial case management or make a trial begin. The advocate’s duty to advise on the plea and any saving of court time or cost cannot alter the statutory scheme. The proceedings were therefore a paradigm example of a cracked trial, and neither appellant was entitled to a full trial fee.

1. High Court (Senior Court Costs Office): On appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, Costs Judge Leonard dismissed both appeals, holding that neither proceeding had begun in a meaningful sense.
2. Legal Aid Agency Determining Officer: Paid each appellant the graduated fee for a cracked trial. The solicitors contended that a full trial fee was due.