R v Booton

For the graduated fee scheme, whether successive indictment versions amount to one case or more depends on the substance of the alleged criminality. Replacing an indictment in the digital case management system, or staying or quashing an earlier version, does not by itself create a second case. A sufficiently real change in the criminality alleged may do so. A cracked-trial fee also requires the case to meet the prescribed plea or trial-listing conditions; where neither has occurred, the fee is unavailable.

Counsel appealed under the Criminal Legal Aid (Remuneration) Regulations 2013 from a Determining Officer’s finding that there was one case for graduated fee purposes. The defendant’s initial indictment was quashed before arraignment, and a replacement indictment was preferred after two further defendants were joined. Counsel argued that the charges and complexity had changed sufficiently to create two cases, and claimed a cracked-trial fee for the first indictment. The central issues were whether the indictment changes created a second case and whether the first indictment qualified as a cracked trial.

1. Appeal dismissed. The relevant Schedule 1 definition treats a case as proceedings against one assisted person on one or more counts of a single indictment. Whether successive indictment versions amount to more than one case depends on their substance. The digital system’s use of a new indictment, or the staying or quashing of an earlier one, is not decisive. There must be a real distinction between the indictments, such as a radical change in the criminality alleged. The court treated R v Wharton SC-2020-CRI-000195 as marking the move away from treating the formal steps alone as determinative, and applied the substantive approach reflected in R v Thomas [2022] EWHC 2842 (SCCO) and R v Shabir & Khan [2022] EWHC 2232 (SCCO).
2. Here, the prosecution was still at an early stage when the first indictment was quashed. The court records showed that arraignment had been deferred because the case and indictment were not ready. The judge found no evidence that the replacement substantially increased the case’s complexity; the underlying criminal conduct was effectively the same, although the charges and some details changed. The cases illustrating a radical change in criminality, including R v Rafiq & Others [2024] EWHC 1319 (SCCO), were examples of a materially different situation.
3. Independently, the first indictment could not qualify for a cracked-trial fee under Schedule 1. The necessary plea or trial-listing preconditions were absent: the defendant had not entered a plea and the case had not been listed for trial. The appeal was dismissed.

1. High Court (Senior Court Costs Office): Dismissed the appeal against the Determining Officer’s finding that there was one indictment and one case. [2026] EWHC 2382 (SCCO) .
2. Determining Officer: Found that the successive indictment versions represented one case. The determination is not separately cited in the judgment.