R v Burke

Under the Advocates Graduated Fee Scheme, a trial fee is calculated by reference to the band of the offence for which the assisted person is tried. It is not calculated by reference to the factual complexity of the case, the work undertaken, or an offence alleged against another defendant. A general rule placing inchoate offences in the band of the substantive offence yields where the scheme makes specific provision for the particular offence. The scheme is rule-based and may produce anomalies. A Costs Judge has no discretion to adjust the prescribed fee to reflect perceived unfairness or additional complexity.

The appellant represented Tristan Burke in a Crown Court trial arising from a knife attack. Burke was tried for attempted murder, possession of a knife and wounding with intent. A co-defendant alone was charged with conspiracy to murder and conspiracy to cause grievous bodily harm, although the indictment alleged that Burke and another defendant were co-conspirators.

The Determining Officer assessed the trial fee in band 3.2, applicable to attempted murder, rather than band 1.2, which the appellant argued applied because Burke had a previous murder conviction and was identified as a conspirator. The appeal also challenged refusal of travel and subsistence expenses, but the court considered that issue outside the statutory appeal jurisdiction.

1. The appeal was dismissed. The court had no jurisdiction under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 to hear the travel and subsistence claim, because the redetermination and appeal provisions applied only to specified categories of claim, including the trial fee.
2. Paragraph 4 of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 requires the trial fee to be calculated by reference to the band of the offence for which the assisted person is tried. The material distinction was between “tried” and “charged”. Burke was not tried for conspiracy to murder. He was tried for attempted murder, so the fee had to be calculated by reference to the attempted-murder band.
3. The fact that Burke was named in the particulars of conspiracy counts against another defendant, and that the case involved substantial complexity, did not confer a discretion to treat him as having been tried for conspiracy to murder. The Costs Judge could not substitute an assessment based on the burden of work or the substantive gravity of the case.
4. Following Simon Csoka KC v The Lord Chancellor [2023] EWHC 54 (KB), the specific attempted-murder bands in the AGFS Banding Document governed over the general provision for inchoate offences. The scheme was to be construed as a whole. The court also accepted the rule-based approach discussed in Lord Chancellor v Woodhall [2013] EWHC 764 and R v Grigoropolou [2012] 5 Costs LR 982: the scheme may produce anomalies, but there is no equitable jurisdiction to correct them.

The appeal was brought to a Costs Judge under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency Determining Officer’s redetermination of the appellant’s trial fee. The court dismissed the appeal.