R v Jack Briggs

For the purposes of remuneration for unused-material preparation, transcripts of evidence from an earlier criminal trial may constitute unused material where they were not used by the prosecution and might reasonably assist the defence or undermine the prosecution case.

The fact that transcripts are stored in a particular section of the Defence Case Statement system does not determine their legal character. Evidence given in cross-examination remains part of the investigation of the facts. Where consideration of such material was reasonable and exceeded three hours, an additional fee may be payable under paragraph 17A of Schedule 1 to the Remuneration Regulations. A retrial fee, and the absence of a deduction from it, do not determine that separate entitlement.

The appellant represented the defendant at a second Crown Court trial after the first trial had ended with the jury being discharged. The appellant was not involved in the first trial and reviewed transcripts of evidence from it, which had been placed in section Y of the Defence Case Statement system.

An unused-preparation claim was initially made for 55 hours and was later reduced to 48 hours. The redetermination allowed 1 hour 18 minutes after a standard three-hour deduction, treating other material as eligible but excluding the trial transcripts. The issue was whether the transcripts were unused material for the purposes of the remuneration scheme and, if so, what additional remuneration was reasonable.

1. Appeal allowed. The appellant was entitled to additional remuneration for considering the transcripts of the first trial. The £100 appeal fee was also ordered to be repaid.
2. Under section 3(1) of the Criminal Procedure and Investigations Act 1996, material must be disclosed where it might reasonably be considered capable of undermining the prosecution case or assisting the defence. The Attorney-General’s disclosure guidance identifies, among other matters, possible use in cross-examination and the capacity to undermine the reliability or credibility of a prosecution witness.
3. Evidence given under cross-examination forms part of the investigation of the facts. The fact that it was given at trial does not prevent information derived from it from being unused material.
4. The transcripts were not used by the prosecution because they did not assist its case. They contained evidence capable of assisting the defendant and undermining the prosecution case. They should therefore have been disclosed as unused material.
5. The transcripts’ placement in section Y of the Defence Case Statement system did not determine their character. Their location was a matter of convenience and did not convert the transcripts into court rulings or material remunerated solely within the graduated fee.
6. The absence of a deduction from the retrial fee did not determine the separate unused-material issue. It was reasonable for the appellant, who had not conducted the first trial, to consider the transcripts fully. The court also considered that failing to do so could have exposed him to professional-negligence risk.
7. Applying paragraph 17A of Schedule 1 to the Remuneration Regulations, the court found that more than three hours had been spent and that an additional fee was payable. Forty hours, net of the standard three-hour deduction, was reasonable.

The judgment concerned an appeal against a redetermination of an unused-preparation remuneration claim. The redetermination allowed 1 hour 18 minutes, excluding the transcripts of the first trial. The High Court (Senior Courts Costs Office) allowed the appeal and awarded remuneration for 40 hours, net of the standard three-hour deduction.