R v Popo

Whether a trial has begun for graduated-fee purposes depends on whether it has commenced in a meaningful sense. The absence of a sworn jury is not decisive. Substantial case management may amount to the commencement of a trial, including where substantial matters are delegated to the parties by the trial judge. Ordinary or administrative trial preparation does not suffice. The relevant work must extend beyond commonplace preparation and be sufficiently connected with the conduct of the trial. The assessment is fact-sensitive and may require consideration of how events unfolded. An appeal against classification as a cracked trial therefore fails where the hearing involved only ordinary preparation and no substantial judicial ruling or equivalent case-management exercise.

Joseph Hill & Co appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The solicitors had represented Nigel Popo in the Crown Court on an indictment alleging the making of indecent photographs of children.

The appellant had been paid the graduated fee for a cracked trial but argued that a trial fee was payable. On the listed trial date, counsel discussed inspection of the defendant’s phone, the timing of downloads and the possible relevance of the ages depicted. Inspection was arranged and the prosecution offered no evidence the following day. The central issue was whether the trial had begun in a meaningful sense.

1. The appeal was dismissed. The appellant had not demonstrated that a trial had begun in a meaningful sense.
2. The governing guidance was that of Spencer J in Lord Chancellor v Henery [2011] EWHC 3246 (QB). A sworn jury is not conclusive. A trial may begin before evidence is called, and may begin without a sworn jury where substantial submissions or case-management matters form part of a continuous process leading to the trial. The question remains fact-sensitive.
3. The phrase substantial matters of case management was understood as contemplating a ruling or rulings by the trial judge where a jury had at least been selected. However, the resolution of substantial matters by the parties, at the direction of or with the approval of the judge, may also suffice where there is no real distinction between delegated and judicial case management. This reasoning was consistent with R v Cox, R v Pipe [2024] EWHC 106 (SCCO) and R v Sallah.
4. Ordinary matters of case management and late trial preparation do not establish a meaningful commencement. Treating every late-cracking case as an effective trial would undermine the distinction between a trial and a cracked trial.
5. The transcripts did not support the appellant’s account. No application for disclosure had been made. The discussions concerned practical arrangements for inspection of a phone and related administrative matters. The judge had not certified that the date was the first day of trial; he had indicated that he would do so if an application were made, while recognising that this might be academic if the trial did not proceed.
6. The proceedings therefore had the appearance of a commonplace trial which cracked before opening after basic preparation matters had been addressed. The cracked-trial fee classification stood.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 concerning the appropriate graduated fee. The judgment does not state a prior reported decision or citation from which the appeal was brought.