R v Kyle Fletcher

Under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a later, separate trial does not by itself constitute a new case for fee purposes. The court must assess whether the indictment changed to a degree that the defendant faced an entirely new case. Where the same single count alleges the same offence over the same period, the case remains the same despite a new indictment, a different legal team and substantial new evidence. The Regulations provide the applicable retrial fee and confer no discretion to award a fresh trial fee where the later hearing is not a new case.

Newgate Solicitors represented Kyle Fletcher in a Crown Court prosecution for conspiracy to supply class A drugs. At his first trial, the jury could not reach a verdict on the count against him. A later trial proceeded on a new indictment with one co-defendant removed and the count renumbered, but it alleged the same offence over the same period. The later proceedings also involved substantial new technical evidence, a different legal team and a considerable lapse of time.

Newgate appealed a Legal Aid Agency Determining Officer’s decision that its fee for the later hearing was subject to the retrial provisions in paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The parties agreed that the later hearing was a separate trial. The issue was whether it was also a new case for remuneration purposes.

The appeal was dismissed. The January 2026 hearing was a retrial for fee purposes, not an entirely new case.

1. The Criminal Legal Aid (Remuneration) Regulations 2013 do not define trial, new trial or retrial. Those terms are used interchangeably and describe a further trial that is a separate hearing rather than a continuation of the earlier hearing. The parties agreed that the January 2026 hearing was separate from the May 2022 trial. [15–16]
2. The issue was whether the later hearing was a new case. The definition of case in paragraph 1(1) of Schedules 1 and 2 refers to proceedings against one assisted person on one or more counts of a single indictment. In modern practice, indictments may be revised as counts and co-defendants change. A new indictment uploaded to the Digital Case System does not, without more, establish a new case. The question is whether the indictment changed to a degree that justifies that conclusion. The judge endorsed Costs Judge Leonard’s analysis in R v O’Brien [2026] EWHC 2410 (SCCO). [17]
3. Here, both indictments charged Fletcher with one count of conspiracy to supply diamorphine and cocaine over the same period. The core criminality was identical. The later trial was therefore not an entirely new case, notwithstanding the new evidence, its technical complexity, the passage of time and the change in representation. [17–18]
4. Paragraph 13 of Schedule 2 does not confer a discretion to award a fresh trial fee in these circumstances. The Regulations provide only for the reduced retrial fee. The judge recognised that the additional work merited proper remuneration but held that the statutory scheme did not permit a different fee. [18–19]

1. High Court (Senior Court Costs Office): Newgate Solicitors’ appeal under regulation 29 was dismissed.
2. Legal Aid Agency: The Determining Officer decided that the January 2026 hearing attracted a retrial fee. Written Reasons were dated 22 April 2026.