R v Bignell

For graduated-fee purposes, whether a criminal trial has begun is a fact-sensitive question of whether it has started in a meaningful sense. Swearing a jury is not conclusive, and substantial case management may suffice even where the jury has not been sworn, including substantial work undertaken by the parties at the trial judge’s direction or with approval. The work must be substantial. Routine pre-trial preparation, disclosure exchanges, plea negotiations, an agreed basis of plea and consequential document changes do not, without more, turn a cracked trial into a trial. Where the issue is likely to be difficult, the trial judge should be prepared on request to give an indication for the parties and determining officer.

Lloyds PR Solicitors represented Martikka Bignell in the Crown Court. The Legal Aid Agency’s Determining Officer paid the appellant the graduated fee for a cracked trial. The appellant contended that proceedings on 26 and 27 August 2025 had advanced sufficiently to attract the full trial fee.

The central issue was whether a trial had begun in a meaningful sense, particularly in light of disclosure, an agreed basis of plea, and changes to prosecution documents after a co-defendant pleaded guilty. The appeal was governed by regulation 29 and Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.

1. Disposition. The appeal was dismissed. The issue under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 was whether the appellant was entitled to a trial fee rather than a cracked-trial fee.
2. Lord Chancellor v Henery [2011] EWHC 3246 (QB) established the meaningful-sense approach. Whether a trial has begun is fact-sensitive. Swearing a jury is not conclusive. A trial is clearly begun where the jury has been sworn, the case opened and evidence called. Substantial case management may also suffice where a jury has been selected but not sworn. The court must assess how events unfolded.
3. The court accepted that substantial case management undertaken by the parties at the direction of, or with the approval of, the trial judge may be materially equivalent to case management undertaken by the court. That principle did not extend to ordinary pre-trial preparation. Disclosure exchanges, plea negotiations, an agreed basis of plea, and consequential changes to an opening note, trial bundle or statement of facts were insufficient without more. The court regarded R v Wood and the decisions in R v Cox, R v Pipe and R v Sallah as consistent with that distinction.
4. On the facts, no jury was sworn, the case was not opened and no evidence was called. No disputed issue was put to a judge for resolution. The disclosure sought by the defence was readily agreed and assisted negotiations on a basis of plea. The defendant then pleaded guilty at the next hearing. The consequential document changes were normal trial preparation, and the listing-office email could not outweigh the transcripts.
5. In accordance with Lord Chancellor v Henery, the court would have attached appropriate weight to a statement by the trial judge that a trial had begun, had either judge been asked to provide one. No such statement was sought. The proceedings therefore remained a cracked trial, and the appeal was dismissed.

1. High Court (Senior Courts Costs Office): Costs Judge Leonard dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013: [2026] EWHC 2495 (SCCO) .
2. Legal Aid Agency Determining Officer: The appellant had been paid the fee for a cracked trial and appealed that determination. No separate citation for the determination is stated in the judgment.