R v Spahiu

For payment under the Advocates’ Graduated Fee Scheme, an unequivocal judicial order for a new trial requires the proceedings to be treated as a trial followed by a retrial. In the absence of such an order, the court must assess all the circumstances, applying the flexible question whether there has been a break in the temporal and procedural matrix.

A short interval between hearings will not ordinarily establish such a break. A change of advocate, without more, is insufficient. Fee allocation between advocates is governed by the scheme and the relevant payment protocol. An advocate who was not the Trial Advocate has no standing to appeal the determining officer’s decision on trial fees.

The appellant, Mr Mark McDonald, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determination by the Legal Aid Agency’s Determining Officer.

The defendant’s first hearing began with a jury being sworn and the prosecution opening its case. The jury was discharged because of a risk of prejudice, and the matter was relisted less than two weeks later before the defendant was acquitted. The advocate who appeared at the first hearing was unavailable for the relisted hearing, and Mr McDonald was instructed instead.

The central questions were whether the relisted hearing was a retrial for the purposes of Schedule 1 to the Regulations and whether Mr McDonald was entitled to claim a separate graduated fee.

1. The appeal was dismissed. The hearing beginning on 7 May 2024 was a continuation of one trial, not a retrial.

2. Where the trial judge makes an unequivocal order for a retrial, payment must be made on that basis. Paragraphs 2(5) and (6) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 then apply.

3. Where no such order is made, the court must determine the issue from the facts. The preferable approach is to ask whether there has been a break in the temporal and procedural matrix, rather than to treat the original trial’s having run its course as an absolute requirement.

4. The interval of less than two weeks, being sufficient to select an untainted jury, did not establish such a break. The change of advocate, resulting from professional commitments and unconnected with the conduct of the proceedings, was insufficient on its own. The determining officer was therefore entitled to treat the proceedings as one continuous trial.

5. Separately, the appeal was incompetent because Mr McDonald was not the Trial Advocate. Under the Regulations, trial fees are paid to the advocate attending the first day of trial, and the redetermination and appeal procedures concerning trial fees are available only to that advocate. Other advocates must ordinarily proceed through the Trial Advocate.

• Legal Aid Agency: the Determining Officer concluded that the proceedings constituted one continuous trial and refused payment on the basis of a separate retrial.
• High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.