Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB)

[2011] EWHC 3246 (QB)Case No QB/2011/0255IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONON APPEAL FROMCOSTS JUDGE GORDON-SAKERVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2011
Before
THE HONOURABLE MR JUSTICE SPENCER(sitting with Master Hurst and Mr Alexander Hutton as assessors)
Between
Lord ChancellorAppellantIan Henery Solicitors LimitedRespondents
Mr David Bedenham (instructed by The Treasury Solicitor) for Appellant for The Respondents did not appear, and were not representedHearing Hearing date: 28 th October 2011
Judgment

Introduction

[1]This appeal raises an issue of considerable practical importance concerning the payment of advocates and litigators in the Crown Court under their respective graduated fee schemes created by the Criminal Defence Service (Funding) Order 2007. It raises the vexed question: when does a trial begin? The issue in the appeal is whether the case should be paid as a “trial” or as a “cracked trial”, but the question of when a trial begins also arises in other contexts in the graduated fee schemes, for example in relation to calculating trial length.[2]The circumstances of this case commonly occur in the Crown Court across England and Wales, week in week out. A trial is listed to start in the afternoon. The judge is part heard in another case. He is assured that it is a firm trial, and to minimise inconvenience to jurors and to save time next day, a jury is empanelled, sworn and sent away. Next day, before the defendant is formally put in the jury’s charge, the prosecution decide to accept a plea of guilty to a lesser charge. The indictment is amended, the guilty plea is entered, and the jury is discharged. For the purpose of the graduated fee schemes, has the case “proceeded to trial”? If so, the advocates and litigators must be paid the fees prescribed for a trial. If not, they must be paid the fees prescribed for a cracked trial.[3]In the present case the decision of the Legal Services Commission, when the defendant’s solicitors submitted their claim, was that the case had not proceeded to trial. They were only entitled to be paid for a cracked trial. They were paid £1,459.36. Had the decision been that this was a trial, they would have been paid £1,710.28. The difference is only £250.92. However, with criminal fees for litigators and advocates pared to the bone, the accumulation of such sums can be very significant for individual practitioners. Viewed cumulatively across all the Crown Courts in England and Wales, the difference must involve a very substantial sum of public funds.[4]The litigators in this case, Ian Henery Solicitors Ltd, appealed to the Costs Judge against the Commission’s decision. The Costs Judge, Master Gordon-Saker, upheld the appeal. The Lord Chancellor appeals against the decision of the Costs Judge.[5]Pursuant to article 31 of the Funding Order, exceptionally, the Lord Chancellor is not required to obtain permission for such an appeal. However, it is axiomatic that the Lord Chancellor will only pursue an appeal in a proper case. As Sir Charles Gray observed, sitting a

Judge of the High Court in Lord Chancellor v Rees and others [2008] EWHC 316 (QB), at paragraph 7:

“… it appears to me that it is incumbent on the Lord Chancellor in any appeal to the High Court to identify some question of law or principle which arises, since the High Court would be slow to differ from the assessment of the Costs Judge on an issue of fact or judgment… ”
[6]For the reasons I have already identified, I am satisfied that an important question of law or principle does arise in this case, namely the proper interpretation and application of the provisions of the respective graduated fee schemes for litigators and advocates in determining whether, and if so on what date, a case has “proceeded to trial”.[7]The solicitors have not appeared or been represented at the appeal. That is understandable. The amount of fees involved is small, despite the importance of the principle, and they made clear in a letter to the court that they have nothing to add to their previous submissions. They rely upon the reasoning of the Costs Judge who found in their favour.[8]In hearing the appeal I have sat with and been greatly assisted by Master Hurst, the Senior Costs Judge, and by Mr Alexander Hutton, a barrister assessor.

The Factual Background

[9]Ian Henery Solicitors Ltd are experienced criminal solicitors practising in the West Midlands. They represented a client who was charged jointly with two other defendants on an indictment containing a single count of false imprisonment. On Tuesday 10th August 2010 the case was listed for trial before His Honour Judge Warner in the Crown Court at Wolverhampton, marked “not before 2pm, no witnesses until Wednesday”. There had been a plea and case management hearing on 9th March 2010 at which not guilty pleas were entered. The case had been adjourned for trial with a time estimate of 3 days.[10]On the day of trial a grade C fee-earner from the solicitors, a paralegal, attended court to instruct counsel. The court log shows that at 3.05pm the case was called on. The judge confirmed that it was an effective trial. The judge was informed that a prosecution witness (a police officer) was not available, but defence counsel confirmed that he was not required. There was some discussion between counsel and the judge about the lack of defence statements for the other two defendants, and the judge enquired if and when bad character applications were to be made.[11]At 3.17pm a jury was empanelled and the jurors were sworn. The court log records that the jury was sent home to return at 12 noon the following day, “they are NOT put in charge today, to be put in charge tomorrow”. The case was adjourned until 11am the following day.[12]Next day, Wednesday 11th August, the case was called on at 11am and counsel requested more time, which the judge allowed. At 12.40pm the prosecution applied to add a second count to the indictment, against each defendant, alleging affray. The application was granted. At 12.51pm the judge informed counsel that he would discharge the jury, the court log again recording that the jury had not been “put in charge”. No doubt the judge was concerned that the jury had already been waiting for nearly an hour. Once the jury had been discharged, all three defendants pleaded guilty. Their cases were adjourned for sentence and pre-sentence reports were ordered.[13]Each of the three defendants was represented by separate counsel. It is not without significance that two of the three counsel claimed the graduated fee appropriate for a cracked trial, and were paid accordingly. It is not entirely clear on what basis the third counsel was paid, but from the limited records available it looks as though he claimed a graduated fee appropriate for a trial, rather than a cracked trial, and was paid accordingly. For reasons I shall explain shortly, it was slightly to counsel’s advantage to be paid for a cracked trial rather than a trial.[14]It is an anomalous feature of the graduated fee schemes created by the Funding Order that litigators (such as the solicitors in this case) can find themselves worse off when paid for a cracked trial rather than a trial, whereas in the same case advocates can find themselves better off for being paid for a cracked trial rather than a trial. Many of the previous decisions of Costs Judges which I shall examine were on appeals by counsel seeking to have the case treated as a cracked trial under what was, at that time, a more generous earlier version of the scheme, and they illustrate the harshness and inflexibility of the scheme in various situations.

The relevant provisions of the Litigators’ Graduated Fee Scheme

[15]The graduated fee scheme for litigators is set out in Schedule 2 to the Funding Order. The essence of the scheme is that there are fixed fees, according to the class of offence charged, comprising a basic fee prescribed for each class of offence and varying according to whether the case falls to be paid as a trial, a cracked trial, or a guilty plea. There are then various uplifts and adjustments. For each class of offence there is a cut-off figure for pages of prosecution evidence (PPE). If the number of pages of prosecution evidence exceeds the prescribed figure, an uplift is payable.[16]The basic fee for this case (a class B offence) was £1202.92 as a trial, £1036.20 as a cracked trial and £609.44 as a guilty plea.[17]The litigators’ graduated fee scheme, unlike the advocates’ graduated fee scheme, makes no allowance for the stage at which a trial cracks. The same basic fee (with the uplifts mentioned) applies whether the case cracks a week after the plea and case management hearing when a not guilty plea entered, or a week before the trial date, or on the day before trial. This is no doubt a reflection of the “swings and roundabouts” ethos of the graduated fees schemes under the Funding Order.

The relevant provisions of the Advocates’ Graduated Fee Scheme

[18]The advocates’ graduated fee scheme is set out in Schedule 1 to the Funding Order. The essence of the scheme is that the advocate receives a basic fee for the case, with uplifts for the number of pages of prosecution evidence (above a certain threshold) and in certain circumstances an uplift for the number of prosecution witnesses (above a certain threshold). The advocates’ graduated fee scheme prescribes different basic fees for the same offence according to whether the case is a trial, a guilty plea, or a cracked trial. However, unlike the litigators’ graduated fee scheme, a distinction is drawn between the basic fee where the case cracks in the “first third” (in which event the basic fee is the same as for a guilty plea) or in the “second or final third” (in which case the basic fee is significantly greater, but still less than the basic fee for a trial). There are detailed rules for determining in which “third” the case cracks, calculated (broadly) by reference to the period between the fixing of the trial date and the date the trial is due to commence. The purpose, clearly, is to reflect the expectation that the closer to trial the case cracks, the more work the advocate is likley to have done in preparing the case for trial.[19]By way of illustration of the practical working of the advocates’ graduated fee scheme, in the present case counsel’s basic fee for a guilty plea or a cracked trial in the first third was £802. For a trial which cracked in the second or final third counsel’s basic fee was £1,179. For a trial, counsel’s basic fee was £1,509.[20]The reason why, in the present case, counsel were in the end better off being paid for a cracked trial rather than for a trial lies in the calculation of uplifts, and the allowance of a separate fee where there is an “ineffective trial”. For illustration purposes, it is worth explaining this in detail.[21]As a trial, counsel’s basic fee in this case would have been £1,509. There were 88 pages of prosecution evidence and 13 prosecution witnesses. Paid as a trial, the uplift for pages of prosecution evidence only applies after the first 50 pages, so only 38 pages would attract the uplift of £1.13, producing a total uplift of £42.94. Similarly, the uplift for the number of witnesses only applies to witnesses after the first 10. So there were only 3 witnesses attracting the uplift of £5.66, producing a total uplift of £16.98. This makes a total fee for counsel, paid as a trial, of £1,568.92. As already mentioned, the records (although incomplete) seems to suggest that one of the three counsel was paid on this basis.[22]By contrast, counsel paid in this case on the basis of a cracked trial received a lower basic fee, £1,179. However, the uplift for pages of prosecution evidence did not have any threshold. Thus counsel were paid for 88 pages of prosecution evidence at £4.03, producing a total uplift of £354.64. There is no uplift for prosecution witnesses where the case is a cracked trial or guilty plea. In addition, however, paragraph 13 of Schedule 2 provides for “fees for ineffective trials”. That fee is payable “in respect of each day on which the case was listed for trial but did not proceed on the day for which it was listed, for whatever reason”. The fixed fee for an “ineffective trial payment” was £150 per day. Thus the two trial counsel who claimed and were paid on the basis of a cracked trial received in total £1,683.64. That is £114.72 more than they would have been paid had they claimed and been paid for the case as a trial.

The definition of a “cracked trial”

[23]There is no definition in the Funding Order of the word “trial”. On the face of it that may seem a curious omission, but it may simply be that the intention was to preserve some degree of flexibility. There is, however, a definition of “cracked trial”. The definition is the same in Schedule 1 (for the advocates’ graduated fee scheme) and in Schedule 2 (for the litigators’ graduated fee scheme).[24]The material part of the definition is as follows: (a). a plea and case management hearing takes place and- (i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence…”[25]The key words in the definition, highlighted above, are:
“the case does not proceed to trial…”
[26]The Commission gave the following reasons for upholding, on review, their decision that this was a cracked trial:
“Following receipt of your LF 2 review form in which you claim a two day trial, I contacted Wolverhampton Crown Court. The Court Clerk has stated that the jury were sworn in on 10th August 2010 but not put in charge, but on 11th August 2010, the defendant pleaded guilty. With no evidence called the jury was then discharged… and therefore a cracked trial fee applies.”
[27]In their written submissions on appeal to the Cost Judge, dated 12th January 2011, the solicitors referred to paragraph 3.4 of the Litigator Graduated Fee Scheme Guidance, published by the Legal Services Commission, last updated on 3rd February 2011:
“Trial” is defined as including all hearings that pertain to the main case i.e. from when the jury is sworn and evidence is called or from the date of a preparatory hearing, to the day of the acquittal or sentencing verdict hearing (sic).”
[28]The solicitors cited a previous decision of a Costs Judge, R v Alyas [2007] Costs LR 321, asserting that it was held in that case that a trial which was “settled” by the prosecution offering a lesser charge to which the defendant pleaded guilty was nevertheless a trial for the purpose of the litigators’ graduated fee scheme. As I shall explain in due course, that was not an accurate summary of what the case decided.[29]The solicitors submitted that “from the moment the trial starts, we should get paid for reaching the trial stage. The cracked trial stage only applies if the client pleads not guilty at the plea and directions hearing and covers proceedings up until just before the trial”.[30]The Lord Chancellor made written submissions to the Costs Judge, dated 15th February 2011, in opposition to the appeal. A number of previous decisions of Costs Judges were cited. The thrust of the submissions was that these decisions illustrate that where the swearing of the jury had been for administrative convenience only, it did not follow that the trial had begun for the purpose of the graduated fee scheme (or its predecessor). The key question was whether the trial had started “in any meaningful sense”. The submissions took issue with the solicitors’ interpretation of the decision in R v Alyas.[31]The solicitors made further written representations, dated 2nd April 2011, in response to the Lord Chancellor’s submissions. They contended that the decisions of previous Costs Judges relied upon by the Lord Chancellor were made under earlier different regulations. They submitted that although the “swings and roundabouts” approach of the scheme was supposed to ensure that, on average, litigators were properly remunerated, the “balance is thrown” if the Commission pays only a cracked trial fee when a case has reached trial. They submitted that once the jury was sworn on 10th August, to the layman, and to the defendants, it was a trial day. Their paralegal had attended for two days. It would be anomalous for her to have spent two days in court only for the solicitors to be paid no more than they would have received had the case cracked before the hearing date. The submissions ended with a cri de coeur that “if the Legal Services Commission keeps paying solicitors firms less than they should, then solicitors firms would be forced to give up criminal legal aid work”.[32]The Costs Judge, Master Gordon-Saker, gave his decision in writing on 7th April 2011. There was no hearing before him. He set out the factual history. He referred to the paragraphs quoted from the Litigator Graduated Fee Scheme Guidance. He referred to the authorities that had been drawn to his attention, and to a decision of his own (R v Wembo) which had not been cited. He concluded that a trial starts, at the latest, when a jury is sworn, and it matters not that the defendant may not at that stage have been put in charge of the jury. There is no requirement that evidence must have been called before a trial can be said to have started. He therefore concluded that this case did “proceed to trial”. It was not a “cracked trial”. The solicitors were entitled to be paid a graduated fee for a trial. He allowed the appeal, and awarded the solicitors costs of £350.

The Lord Chancellor’s case on this appeal

[33]Mr Bedenham, who appeared on behalf of the Lord Chancellor, took us through previous decisions of Costs Judges, and occasionally of High Court Judges, to demonstrate that certain principles have developed from recurring factual situations, and variations thereof. Mr Bedenham made it clear that the Lord Chancellor’s purpose in bringing this appeal was to seek to clarify the circumstances in which a case may properly be said to have “proceeded to trial”, so as to achieve certainty and consistency in the interpretation of the graduated fee schemes. He submitted that in the present case Master Gordon-Saker concentrated unduly on the fact of the jury being sworn, when the focus of his attention should have been on whether there was a trial in any meaningful sense. Very much as a secondary point, Mr Bedenham submitted that even if, contrary to his main argument, the swearing of a jury could be regarded as the touchstone for deciding that a trial had begun, the fact that in this case the defendants were not put in the jury’s charge meant that even that threshold had not been passed.[34]I have not found this a straightforward case. The instinctive view of a criminal practitioner might well be that the swearing of a jury clearly marks the start of a trial in the Crown Court. However, it is only by examining the factual situations on which Costs Judges have been called upon to adjudicate previously, and such authority as there is from judges of the High Court at first instance or on appeal, that a properly informed conclusion can be reached. I therefore make no apology for reviewing the authorities in some detail.

The definition of a “trial”, outside the context of assessment of fees

[35]Reliance was placed by Master Gordon-Saker on authorities in the general sphere of criminal law and procedure where courts have had to consider when a jury trial in the Crown Court begins. In R v Tonner [1985] 1 All.E.R. 807 the issue of when a trial began was crucial to the decision whether the defendant still had the right, under the Criminal Evidence Act 1898, to make an unsworn statement from the dock. That right was abolished by section 72 of the Criminal Justice Act 1982 which came into force on 24th May 1983. The new law did not apply “to a trial… which began before the commencement of this section”. The defendant had been arraigned at a hearing in April 1983. The defendant was being tried in October 1983. He argued that his trial had commenced when he was arraigned in April. The judge ruled that the trial began when the jury was sworn and the defendant was put in the charge of the jury. That happened after the law changed. Accordingly he had no right to make an unsworn statement from the dock.[36]The judge’s decision was upheld in the Court of Appeal. The Court examined a large number of authorities, including Commonwealth authorities. The Court found particularly instructive the judgment of Ritchie CJ in the Supreme Court of Canada in Morin v R [1890] 18 SCR 407:
“Until a full jury is sworn there can be no trial, because until that is done there is no tribunal competent to try the prisoner. The terms of the jury member’s oath seem to show this… all that takes place anterior to the completion and swearing of the jury is preliminary to the trial. How can a prisoner be tried until there is a court competent to try him? And how can there be a court until there is a judge on the bench and a jury in the box duly sworn? Until there is a court thus constituted there can be no trial, because there is no tribunal competent to try him. But when there is a court duly constituted the prisoner being present and given in charge to the jury this trial in my opinion commences, and not before.”
[37]Giving the judgment of the Court of Appeal, Watkins LJ said (at page 818):
“That expresses more aptly and clearly than we think we could what we deem to be the true position. We go further and say that our experience as judges in the criminal courts leads us inevitably to the conclusion, unassisted by the authorities to which we have referred in the course of this judgment, that it would be wholly insensible to speak of the commencement of the trial as being other than when the jury have been sworn andtake the prisoner into their charge, to try the issues and, having heard the evidence, to say whether he was guilty or not of the charge against him, always remembering that it is inevitably a trial by jury, not by a judge.”
(emphasis added) It should be borne in mind that practice in the Crown Court in 1985 was very different from today; it would have been almost unheard of for a jury, once sworn, to have to wait for days whilst preliminary matters were decided.[38]On the question of whether the defendant must be put in the jury’s charge before the trial can be properly be said to begin, Master Gordon-Saker helpfully referred in his judgment to a passage from Archbold (Criminal Pleading, Evidence and Practice) 2011, at paragraph 4-266:
“When a full jury have been sworn (or made solemn affirmation where entitled to do so…) the clerk of the court addresses the jury as follows: “Members of the jury, are you all sworn? The [prisoner or defendant] stands indicted for that he on the [stating the substance of the offence charged in the indictment]. To this indictment he has pleaded not guilty and it is your charge to say, having heard the evidence, whether he be guilty or not.”
Although this is a traditional part of the procedure, it is not essential and failure to follow it does not render the trial a nullity: R v Desai [1973] Crim L.R. 36, CA; R v Olivo 28 Cr.App.R 173, CCA.”[39]In R v Olivo (supra)the trial had been wholly irregular in that three separate indictments were tried together at the same time. The Court of Criminal Appeal was very critical of the absence of a full shorthand note of that part of the proceedings where, according to the record, “the jury were duly sworn and charged.” A verbatim transcript would have shown whether the defendants really were put in the charge of the jury on three separate indictments. The convictions were quashed.[40]In R v Desai (supra) the report in the Criminal Law Review is very short indeed:
“Although giving a defendant in charge to the jury is a traditional part of trial procedure it is not an essential part of the trial and failure to do so does not render the trial a nullity”
. Examination of the transcript of the Court’s judgment sheds more light on the facts of that case.[41]It was a non-counsel application, in which the Court was considering the defendant’s renewed application for leave to appeal on many disparate grounds. One ground was that he was not formally put in charge of the jury. The transcript of the trial confirmed that the indictment was put to the defendant, who pleaded not guilty. The jury was sworn, but instead of reading the indictment to the jury and reminding them it was their duty to listen to the evidence and decide whether the defendant was guilty or not, the clerk of the court merely announced the title of the suit by saying:
“The Queen against Ebrahim Mohamed Desai”
. The clerk then sat down and prosecuting counsel opened the case to the jury. Karminski LJ said:
“Technically it appears there was a lacuna in the trial in the sense that what is normally done was not done; but, in the judgment of this Court, this is, though an omission, an omission rather in the character of omitting the allocutus; the cases on that topic indicate that while this is part of the traditional business of the court, it is not an essential part of the trial and its omission does not involve a re-trial. In the opinion of this Court, there is nothing in the point. It is abundantly obvious that prosecuting counsel must have outlined the nature of the indictment to the jury in his opening speech and the judge read the indictment to the jury in his summing up before explaining its meaning.”
[42]Ex Parte Guardian Newspapers Ltd [1999] 1 All E.R. 65 was another case from the general criminal law in which the court had to decide when a trial begins. The defence wished to make an abuse of process application, and served notice pursuant to rule 24A (1) of the Crown Court Rules 1982 that they required the application to be heard in camera. That rule applied only where the application was that “all or part of a trial” be held in camera. The issue was whether those words were apt to cover a pre-trial application to stay proceedings for abuse of process. The Court of Appeal held that the words “all or part of a trial” meant “all or part of the trial process”. At paragraph 10 of the Court’s judgment, Brooke LJ said:
“We should add that it is well settled that the trial does not start on arraignment, unless there is a statutory provision creating this effect. It starts when a jury is sworn and the defendant is put into the charge of the jury (R v Tonner)…”
[43]Whilst these authorities provide some general guidance on when a trial does or does not begin, they must be read in the context of the issue which the court was considering in the particular case. They do not, in my judgment, provide any definitive guidance for determining when a trial begins for the purpose of the graduated fee schemes.[44]There are, of course, statutory provisions defining, for specific purposes, the time when a trial begins. For example, in connection with custody time limits, section 22(11A) of the Prosecution of Offences Act 1985 (as amended) provides:
“For the purposes of this section, the start of a trial on indictment shall be taken to occur at the time when a jury is sworn to consider the issue of guilt or fitness to plead or, if the court accepts a plea of guilty before the time when a jury is sworn, when that plea is accepted…”
[45]There is an identical definition of “the start of a trial” in section 39(3) of the Criminal Procedure and Investigations Act 1996, in connection with the meaning of a pre-trial hearing at which a judge may make a ruling as to admissibility of evidence or any other question of law relating to the case. This was the valuable and liberating statutory amendment which permitted such matters to be dealt with by the trial judge without the cumbersome and inconvenient formality of swearing a jury and sending it away until the matter had been determined and the trial proper was ready to proceed.[46]Special provision is made for particularly serious cases, including serious fraud, where a judge orders a preparatory hearing under section 7 of the Criminal Justice Act 1987 (in the case of fraud), or under section 29 of the Criminal Procedure and Investigations Act 1996 (in other serious cases) so that the trial is deemed, by statute, to begin with that hearing.[47]Like the decisions in the general criminal law to which I have referred, these statutory provisions do not provide any definitive guidance on whether a case has “proceeded to trial” for the purpose of interpreting the graduated fee schemes. Rather, it is necessary to examine previous decisions of the Costs Judges as issues have arisen.

Other relevant provisions of the Graduated Fee Schemes

[48]It is also necessary to have regard to the interlocking provisions of the schemes themselves. For example, as already noted, the advocates’ graduated fee scheme specifically contemplates a fixed payment - the “ineffective trial fee”- for any day on which:
“… the case was listed for trial but did not proceed on the day for which it was listed, for whatever reason.”
It is also necessary to bear in mind that the advocates’ graduated fee scheme provides for fixed fees to be paid for specified hearings which sometimes take place on the day on which the trial is due to commence. These include fixed fees for an abuse of process hearing (defined in paragraph 10(1)(a) of Schedule 1); hearings relating to disclosure (defined in paragraphs (10)(b) and (c)…); and hearings relating to the admissibility of evidence (paragraph 10(1)(d)).[49]The advocates’ graduated fee scheme includes provisions for payment for a hearing of the kind mentioned above (abuse of process, disclosure, admissibility, withdrawal of plea) where that hearing took place on any day of the “main hearing” of the case. The phrase “main hearing” is defined, in paragraph 1(1) of the schedule containing each scheme, as meaning:
“ in relation to a case which goes to trial, the trial…”
Paragraph 10(2) of the advocates’ graduated fee scheme provides:
“(2) Where a hearing to which this paragraph applies is held on any day of the main hearing of a case on indictment, no separate fee is payable in respect of attendance at the hearing, but the hearing is included in the length of the main hearing for the purpose of calculating the fees payable.”
[50]It is to be noted that in the definition of “main hearing”, the phrase used is “goes to trial” rather than “proceeds to trial”. That difference does not, however, in my view affect the interpretation of when a trial starts for present purposes. The phrase “goes to trial” is used elsewhere in Schedule 1, for example in paragraph 15 which deals with fees payable to advocates for wasted preparation. That paragraph applies if either “the case goes to trial, and the trial lasts for 5 days or more, or the case is a cracked trial and the number of pages of prosecution evidence exceeds 150.”[51]The Litigator Graduated Fee Scheme Guidance, issued by the Legal Services Commission ( 3rd February 2011 reissue) provides, at paragraph 3.7:
“ If the court considered other matters for days or parts of days before a jury is sworn such as disclosure, admissibility, abuse of process or Public Interest Immunity (PII) hearings, then these whole days are not treated as part of the trial”
. For reasons which will become clear when I examine the authorities, that guidance is not altogether accurate.

The evolution of the current Graduated Fee Schemes

[52]Before I turn to the previous decisions of Costs Judges and Judges of the High Court construing the provisions of the graduated fee scheme, it is necessary to set out briefly how the scheme has changed over the years because this explains the context and basis of some of those decisions. It is also necessary to bear in mind that there have been minor changes to the wording of relevant definitions.[53]The first graduated fee scheme was introduced in 1996 by way of amendment to the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989. The scheme was contained in a new schedule to those Regulations, Schedule 3, inserted by the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No.2) Regulations 1996 (SI 1996/2655).[54]Paragraph 9(3) of Schedule 3 provided, so far as relevant:
“ A case on indictment in which a pleas and directions hearing takes place is a cracked trial if ….the matter did not proceed to trial (whether by reason of pleas of guilty or for other reasons)….”
. However, pursuant to paragraph 2(4) of Schedule 3, cracked trials were excluded from the graduated fee provisions altogether if – (a) at the pleas and directions hearing it was accepted by the court that the trial would exceed 10 days in length (or 5 days where one of the counts was for an offence falling within class I); (b) the prosecution evidence exceeded 250 pages; or ( c) the number of prosecution witnesses exceeded 80.[55]Thus, in the costs appeals decided under these regulations the issue was often whether the case should be paid as a “cracked trial”, where ex post facto “taxation” applied (with counsel submitting the familiar “red corner” claim form), or whether the case fell within the graduated fee scheme where prescribed fees applied, without any discretion on the part of the determining officer.[56]Between 1997 and 2001 there were various minor amendments to the original graduated fee scheme, but none is relevant to the issues in the present appeal.[57]When new primary legislation was introduced in the form of the Access to Justice Act 1999, it was necessary to introduce a comprehensive new set of regulations: The Criminal Defence Service (Funding) Order 2001 (SI 2001/855). There was no substantive change to the provisions of the scheme, which was effectively reproduced as Schedule 4 to the 2001 Funding Order.[58]The next substantive change to the 2001 Funding Order came in 2004 with The Criminal Defence Service (Funding) (Amendment) Order 2004 (SI 2004/2045). However, none of the changes had a material effect on the issues in the present appeal.[59]In 2005 parliament brought to an end the long standing exclusion of cracked trials from the graduated fee scheme, where there was a trial estimate of more than 10 days (5 days for a class I offence), in excess of 250 pages of evidence or in excess of 80 witnesses. The exclusion was removed by The Criminal Defence Service (Funding) (Amendment) Order 2004 (SI 2005/2621).

Previous decisions of Costs Judges and judges of the High Court

[60]Against this background I turn to the previous relevant decisions of Costs Judges. Those decisions are not binding upon me, but if the decisions disclose a consistency of approach over a significant period it would be wrong to depart from them without good reason. All except three of the cases to which I am about to refer are decisions of Costs Judges. Of the others, two are decisions of High Court Judges on appeal from a Costs Judge. The other is a case at first instance in the Crown Court where Mitting J gave valuable guidance on the proper approach, in that case, to determining when the trial had commenced. In order to discern more clearly the streams of principle and practice flowing from these various decisions, it is necessary to examine them in chronological order.[61]In R v. Maynard [SCCO 461/99] (29th November 1999), counsel argued he should be entitled to be paid for a “cracked trial”, rather than a trial. The jury had been sworn, the case opened, and the evidence of one of the complainants had been given in chief. Then the defendant changed his plea. As the case had plainly “proceeded to trial”, Master Rogers held on appeal that it could not be a cracked trial. He was sympathetic to counsel’s position but there was no “equity” in the regulations to permit him to “stretch a point”. The cracked trial fee would have been nearly double the fee counsel was paid for the case as a trial. In the course of his judgment, Master Rogers said:- “At the oral hearing Mr [X] accepted that a trial, though not defined, starts (except in circumstances which are not applicable here) when the jury is sworn, and clearly the jury was sworn here, so, on the face of it, he cannot bring himself within paragraph 9 (3) (a).” The case had plainly proceeded to trial on any view, so counsel’s concession that a trial starts when the jury is sworn was of limited significance. This was, however, the decision which Master Gordon-Saker relied upon in the crucial passage of his judgment in the present case as supporting his conclusion that the swearing of the jury itself meant that there was a trial.[62]In R v. Karra [SCCO 375/99] (23rd February 2000), the same situation arose. Counsel argued that he should be paid for a cracked trial (rather than a trial) despite the fact that the jury had been sworn, the case opened, and the first witness cross-examined before the defendant changed his plea. Again, the cracked trial fee would have been substantially higher than the trial fee counsel was paid. Master Rogers repeated his sympathy for counsel’s position, emphasizing that in all statutory or regulatory schemes a certain degree of arbitrariness may creep in.[63]In R v. Rahman [SCCO 119/2000] (26th May 2000), there was undoubtedly a trial, but the issue was on what date the trial began. On the first two days of the hearing no jury was empanelled because there was a voir dire to determine the admissibility of police interviews. On the third day the jury was empanelled and the trial proceeded. Master Rogers upheld the decision that the trial did not start until the jury was sworn, so the first two days could not be treated as trial days for the purpose of calculating the length of trial uplift. Master Rogers noted that the practice had grown up of dealing with the voir dire before empanelling the jury, but that did not affect the position. As will become apparent when I come to much more recent authorities, it is likely that if the same point arose today the decision would be different.[64]These three cases, all decisions of Master Rogers, were considered and distinguished by Master Rogers himself in the important case of R v. Brook [2004] 1 Costs LR 1780 (16th October 2003). The issue was whether counsel was entitled to be paid on an ex post facto basis because the matter had not proceeded to trial, or whether the case could only be paid as a trial under the graduated fee scheme. The difference was huge. Paid as a trial, counsel would receive only one-tenth of what she would receive if the case could properly be treated as a cracked trial (thus entitling her to be paid ex post facto). The case had been listed for trial on 21st October. There was to be an abuse of process application. The jury was sworn but sent away until the conclusion of the abuse application. When the application was dismissed, the defendant pleaded guilty. The trial would have lasted four weeks. In accordance with the Graduated Fee Scheme Guidance then current, which was based upon the three decisions of Master Rogers already referred to, the determining officer decided there had been a trial because a jury had been sworn. Master Rogers was persuaded, however, that those three cases were not fatal to counsel’s argument because:
“…..this was not a trial in any meaningful sense”
. It had been recognised by everyone, including the judge, that if the abuse application failed there would be a discussion about pleas and that is what happened. Accordingly a cracked trial fee was payable.[65]The concept of “no trial in any meaningful sense” is one to which I shall return, because the Lord Chancellor submits that it is, in essence, the proper test.[66]In R v. Baker and Fowler [2004] 4 Costs LR 693 (17th June 2004) Master Rogers was faced with a similar situation on appeal by counsel for two of ten defendants charged in a drugs conspiracy with a trial estimate of 7 weeks. The trial was due to start on Monday 9th June. One of the principal defendants was wavering over his plea. The judge allowed more time for counsel to take instructions. The principal defendant was still wavering on Thursday 12th June. The court could not sit on Friday 13th June so the judge decided to empanel a jury, which was then sent away until Monday 16th June. The principal defendant decided over the weekend to change his plea and on Monday 16th June his guilty pleas were entered. His pleas were repeated in front of the jury when they came to court at 2pm, and other defendants then also entered guilty pleas. The jury was discharged.[67]The determining officer held that because the jury had been sworn the case fell within the graduated fee scheme in Schedule 4 to the 2001 Funding Order, relying upon the three decisions of Master Rogers already mentioned but not his most recent decision in R v Brook. That decision was, however, drawn to the determining officer’s attention when a redetermination was sought, but the decision was maintained. In the course of his judgment, Master Rogers said:
“I am conscious that my decision in Brook makes an inroad into the fairly rigid rule which defines what is and what is not to be treated as an [ex post facto] case and which turns on the wording of the Regulations, in which I have held on numerous occasions, there is no equity. I am persuaded, however, that these cases are at least as strong and probably stronger than Brook and I ought to follow Brook rather than Maynard, Carraor Rahman.”
Accordingly he held that the case fell to be treated as a cracked trial, and should be paid outside the graduated fee scheme on an ex post facto basis.[68]In Meek and Taylor v Secretary of State for Constitutional Affairs [2006] 1 Costs LR 1 (23rd March 2005) defence counsel appealed to the High Court against the decision of the costs judge who upheld the determining officer in concluding that counsel must be paid under the graduated fee scheme for a trial, rather than ex post facto as a cracked trial. The appeal was heard by David Clarke J. The defendant was charged with serious sexual offences and was represented by leading and junior counsel. The trial was expected to last 3 weeks. A jury was sworn and prosecuting counsel began to open the case. After only 20 minutes of the opening the luncheon adjournment intervened, and over the adjournment the defendant decided to change his plea. Counsel were paid under the graduated fee scheme on the basis of a one day trial. They argued that this was grossly unfair and provided no proper remuneration for the work involved. They contended that they should be paid on an ex post facto basis. Counsel, recognising that there was no “equity” in the interpretation of the scheme, argued that they were entitled to a special preparation fee under paragraph 17 of Schedule 4 to the 2001 Funding Order. Having examined the prerequisites for such a payment and having found that they did not apply, David Clarke J said at paragraph 19:
“In my judgment the determining officer and the costs judge reached the only conclusion that they could properly reach, however they might have wished to be able to recognise the harsh anomaly which this factual situation has thrown into such sharp relief. I am acutely aware of the unease of the profession about the Graduated Fee Scheme, which is being ever extended and has been extended in 2004 in the way which I have related. I am aware of the mechanistic, somewhat formulaic way in which it has to be applied, and indeed I have some sympathy with the Crown Court staff, who have to apply it in relation to claims made by counsel and who have no doubt in Exeter, just as in other places that I am more familiar with, a good close working relationship with members of the Bar who work regularly in those courts. But I cannot, I am afraid, find a way of avoiding the impact of these regulations. In those circumstances this appeal must fail.”
[69]In Secretary of State for Constitutional Affairs v Stork [2005] EWHC 1763(QB) [2006] 1 Costs L.R. 69 (3rd August 2005) the issue for determination in an appeal by the Lord Chancellor to the High Court was whether counsel was entitled to be paid the daily “length of trial uplift” for the whole length of the trial, or whether his entitlement to such an uplift was limited to the days when he actually attended the trial. The appeal was heard by Gray J sitting with assessors. The case raised a different point entirely from that presently under consideration, but in the course of his judgment Gray J gave a helpful analysis and explanation of the graduated fee scheme, concluding with the following:
“My assessors have informed me that the amounts laid down in the Tables were worked out as a result of a complex statistical analysis of historical costs across the whole range of Crown Court cases carried out by the Bar Council and the Department prior to the introduction of the scheme. The object of this was to provide “cost neutrality” as between the old ex post facto regime and the new graduated fee scheme. That is to say that, following the introduction of the scheme, barristers as a whole would receive, and the legal aid fund would pay out, neither more nor less in real terms than what had been received and paid in the year preceding the scheme’s introduction. To achieve this laudable aim, however, many arithmetical compromises were required with the result that, as was readily recognised at the time, there is a large element of “swings and roundabouts” in the amounts payable to advocates carrying out work rewarded by the graduated fee scheme. Since the scheme was introduced, the Department have added to it and expanded it.”
Later in his judgment, at paragraph 29, Gray J observed (albeit not in the present context) that it was “curious” that there was no definition in the scheme of the phrase “the trial”.[70]In December 2005, in R v Dean Smithand others, Mitting J made some highly pertinent observations, for present purposes, in the course of trying a case at Birmingham Crown Court. They were carefully considered observations which he intended should be transcribed, and they have been quoted with proper deference in several of the later decisions of Costs Judges (to which I shall return). It is, therefore, important to set out Mitting J’s observations in full:
“I have been asked to state when in my view the trial began for the purposes of the assessment of counsel’s fees on the graduated fee scheme. When I made preliminary rulings in this case of some importance and substance, and no little difficulty, I did so exercising amongst other powers my inherent powers as trial judge. I did so before a jury was sworn, in accordance with modern and helpful and economical practice. “Trial” as far as I could determine, is not defined in the regulations. I would simply say this: that if without an express statutory definition “trial” were to be interpreted by those responsible for assessing fees as meaning the moment which the jury was empanelled until the moment of delivering a verdict,… I would regard that as a misconstruction. In a case such as this (which will be increasingly common in the future) when important preliminary rulings have to be given as part of the trial process, then in my view, and for the purpose of assessing the appropriate fee, “trial” means and should be taken to be the date upon which those submissions are first made to the trial judge in a continuous process which results in the empanelling of a jury without break of time and in the leading of evidence and the returning of a verdict.(emphasisadded) If that were not so, then I have little doubt that there would be a strong and not unreasonable temptation to revert to the previous and inconvenient practice of making submissions after the jury have been empanelled, often in the middle of their consideration of the evidence, at a time which could only disrupt the flow of the trial and potentially lead to a disruption of the jury’s concentration. Such a result would be deplorable. It can easily be avoided by sensible interpretation by those responsible of the meaning of the word “trial”
. In my view, this trial began on October 3. Counsel: Would your Lordship allow a transcript to be made of those remarks, please? Mitting J: Certainly, that is why I made them. ” Counsel: Would your Lordship allow a transcript to be made of those remarks, please? Mitting J: Certainly, that is why I made them. ”

Counsel: Would your Lordship allow a transcript to be made of those remarks, please?

[71]This decision of Mitting J is important because it establishes a line of authority, followed in subsequent decisions by Costs Judges, that, for the purpose of the graduated fee scheme, the trial can be regarded as beginning before a jury is empanelled.[72]Next, chronologically, is R v Alyas [2007] 2 Costs L.R. 321 (7th November 2006). This is the decision relied upon by the solicitors in the present case in their written submissions on appeal to the Costs Judge. It was another example of a case where counsel would be seriously disadvantaged if they were paid under the graduated fee scheme for a trial, rather than ex post facto as a cracked trial. The case involved five defendants, charged with offences of disorder and violence at a family wedding. The trial was due to last four weeks. On the first day, 18th April, following legal argument several indictments were amended and consolidated in a single indictment. On the second day the jury was sworn. The case was opened and the evidence was called. At the conclusion of the evidence on 28th April there was a submission of no case to answer. The judge allowed the case to continue only on one of the counts (violent disorder) and directed that he would not be opposed to the substitution of a lesser charge of affray. Next day the prosecution amended the indictment accordingly, and all five defendants were re-arraigned and entered guilty pleas. All counsel submitted claims for payment as a cracked trial, on an ex post facto basis. The determining officer concluded that as the jury had been sworn and evidence heard, a trial had undoubtedly commenced, so the case could not be treated as a cracked trial or a guilty plea.[73]Master Simons acknowledged in his judgment that here was a unique set of circumstances, compared with other costs appeals, in that an additional count was added as a result of judicial intervention. That count was never before the jury. However, the definition of a “cracked trial” in paragraph 9 of Schedule 4 to the Funding Order 2001 applied if “…the matter did not proceed to trial…” The Master said (at paragraph 16) “In my judgment the matter did proceed to trial, and proceeded for a number of days. The fact that the nature of the trial then changed and, as a result, a new indictment was preferred, to which the defendants pleaded guilty and which was not before the jury, does not in my judgment, mean that the matter did not proceed to trial.”[74]In R v Sanghera [2008] 5 Costs L.R. 823 (24th June 2008) the issue, once again, was whether counsel were entitled to a cracked trial fee rather than a trial fee. It was a murder case with a time estimate of 5 weeks. When the case was listed for trial on Friday 16th February one of the defendants pleaded guilty. In respect of the other defendants a jury was selected but not sworn. On Monday 19th February two other defendants pleaded guilty. The prosecution elected not to proceed against the final defendant. The determining officer refused to treat the case as a cracked trial. She allowed the appropriate graduated fee for a trial on 16th February and a refresher on 19th February. She based her decision on the fact that there had been an exchange between counsel and the judge, leading to the swearing of the jury, which meant that a preparatory hearing had begun for the purposes of the Criminal Procedure and Investigations Act 1996, and that day became day one of the trial. The determining officer also relied upon the observations of Mitting J in R v Dean Smith (supra).[75]Counsel’s appeal to the Costs Judge was heard by Master Rogers. He referred to his own previous decisions in R v Brook (supra) and in R v Baker and Fowler (supra). He concluded, at paragraph 32:
“ I have no doubt in my own mind that the appellants are entitled to succeed because this was indeed a cracked trial on February 19th and should have been so treated by the determining officer and paid appropriately under the graduated fee scheme in respect of all the appellants. ”
In other words, even though a jury had been selected (albeit not sworn) on Friday 16th February and sent away, there had been no trial “in any meaningful sense”. Contrary to the position in R v Dean Smith (Mitting J’s case) there were to be no submissions or arguments before the opening, simply an adjournment for the prosecution to gather and serve their evidence. Nothing at all took place in court on Friday 16th February other than submissions that the jury should not be sworn.[76]The next and (in my judgment) very important decision is R v Bullingham [SCCO Ref: 68/10] (29th October 2010), a decision on appeal by Master Campbell. Regrettably this decision was not cited to Master Gordon-Saker in the present case, although it had been decided nearly six months earlier. This time the appeal was by solicitors rather than by counsel. They had acted for the defendant in a large scale drugs conspiracy case in which guilty pleas were eventually entered after several days preliminary argument which involved hearing evidence on the voir dire. The solicitors claimed to be paid for a trial. The Commission processed the claim as a cracked trial. The difference amounted to £129,020. The trial had been due to start on Monday 26th October. By that stage there were only two defendants who had not pleaded guilty. On 26th October the prosecution agreed to accept a plea of guilty to a lesser charge by the co-defendant, so the defendant now faced trial alone.[77]When the case was called on for trial on 26th October defence counsel explained that he had submissions to make on late service of additional evidence and on non-disclosure of relevant material. The judge did not swear a jury but instead adjourned the case until Friday 30th October for a voir dire in relation to the admissibility of the evidence. It was agreed that this issue needed to be resolved before the case could be opened to the jury. On 30th October the judge heard evidence on the voir dire and gave rulings in favour of the defence. As a result the prosecution considered their position and agreed to accept lesser pleas from the defendant which were duly entered.[78]In the course of a very thorough and analytical judgment Master Campbell reviewed all the decisions to which I have referred. His conclusion, allowing the solicitors’ appeal, was that the facts were akin to those in R v Dean Smith, where the first week had been taken up with substantial and complex legal argument leading Mitting J to conclude that trial had started when those arguments had first been put. Master Campbell was satisfied that he should approach the matter in the same way. He held that the trial began on 26th October when the judge directed that there should be a voir dire.[79]In reviewing the authorities Master Campbell said, at paragraph 23: “It is common ground that where a jury is sworn and evidence heard, that that is a trial. From R v Brookit is also clear that where a jury is sworn, but no evidence is heard and the defendant pleads guilty, a cracked trial fee rather than a trial fee is payable. However, there appears to be no case on the point that where no jury is empanelled, but evidence is heard, (in this case at the voir dire) and as result of the outcome, the defendant pleads guilty, whether in those circumstances, the trial has started”.[80]Master Campbell also made it clear in his judgment that whether or not a jury is sworn is not the all important factor. Referring to the decision of Mitting J in R vDean Smith he said, at paragraph 28; “Mitting J… held that the trial had begun, even though he never presided over the swearing of a jury. For these reasons I do not agree that whether or not a jury has been sworn is the trigger point for deciding if the trial has commenced.”[81]At paragraph 33, having considered the cases of R v Baker and Fowler, Meek and Taylor v Secretary of State for Constitutional Affairs and R v Sangherahe said:
“From these cases it is clear that the mere selection and/or swearing of the jury is not conclusive of whether the trial has started. On the contrary, they demonstrate that if a jury is sworn and sent home, so that those chosen know they must return another day and that those not selected can be released, there is [a] cracked trial, not a trial, if the defendant then changes his plea. On the other hand, if the jury is sworn and the prosecution opens its case, the trial has started even if minutes later the defendant changes his plea and the trial cracks from that moment.”
I accept and adopt that passage of Master Campbell’s judgment as a correct analysis of the relevant decisions.[82]At paragraph 38 of his judgment, Master Campbell very helpfully drew together the threads in this way:
“To conclude, it is my judgment that: (i) the LSC’s contention that as no jury was sworn, the trial could not have started, is wrong, since it is plain from the authorities that the swearing of the jury is not the conclusive factor in deciding under the Scheme when the trial begins. (ii) Even if a jury is sworn, the trial will not start unless it begins “in a meaningful sense”, that is to say, otherwise than for the mere convenience of the jurors or so that the legal representatives will be paid a trial fee rather than a cracked trial fee. (iii) If the jury is sworn and the prosecution opens its case only for the defendant to change his plea, a trial, not a cracked trial fee is payable. (iv) Where (as here), no jury is sworn, but the judge directs that there will be a voir dire involving substantial argument which may affect the evidence that the prosecution can use in the case, the trial starts when he gives that direction.”
Again, I accept and adopt this passage of Master Campbell’s judgment as a correct analysis of the authorities and a correct exposition of the relevant principles.[83]The final and most recent case was the decision of Master Gordon-Saker himself in R v Wembo (SCCO Ref: 193/10) (21st December 2010). It was an appeal by leading counsel against the disallowance by the determining officer of daily attendance fees in an attempted murder case which had undoubtedly proceeded to trial. The issue was when the trial had begun. The trial was listed for 16th November. That day and the following day were taken up with argument as to whether anonymity orders should be made in respect of some of the witnesses. That was not an argument about the admissibility of evidence for which fixed fees (under the advocates’ graduated fee scheme) could be allowed. The argument was, however, central to and part of the trial and the court had to consider the evidence that the relevant witnesses would be giving. Master Gordon-Saker referred (inter alia) to the cases of R v Tonner, Ex Parte Guardian Newspapers, and R v Rahman. He relied heavily upon the observations of Mitting J in R v Dean Smith.[84]Having quotedthe definition of the word “trial” in the Oxford English Dictionary:
“The examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused person by a court” he said: “It seems to me that if that process involves a preliminary argument which would previously have been heard after the jury was empanelled but is now heard as a matter of “modern…and economical practice” before the jury is empanelled the argument nevertheless forms part of the trial. If a fixed fee were payable then the analysis would be different. But where, as here, there is no fixed fee payable and the hearing is of the kind referred to by Mitting J in R v DeanSmith, then the hearing must form part of the trial.”
He concluded, therefore, that the case started on 16th November and counsel was entitled to daily attendance fees for 16th and 17th November even though the jury was not sworn until 18th November.

The decision of Master Gordon-Saker in the present case

[85]Against the background of these authorities, it necessary to examine the reasoning of Master Gordon-Saker in the present case. He referred to the decisions in R v Alyas, R v Maynard, R v Karra, R v Rahman, R v Brook and R v Baker and Fowler. He referred to his own decision in R v Wembo, helpfully setting out the relevant paragraphs of his judgment. He referred extensively to R v Tonner, and to Ex ParteGuardian Newspapers Ltd, and set out the passage from Archbold which I have already quoted.[86]Referring to the guidance in Archbold that putting the defendant in the charge of the jury is not essential, and that a failure to follow that course does not render the trial a nullity, the Master expressed his conclusion as follows:
“ If this is not an essential part of the trial then, it seems to me, a trial can be said to have started where it has not happened. On that basis a trial, starts when a jury is sworn (although the dicta of Mitting J in R v Dean Smith and otherswould suggest that, for the purposes of graduated fee regimes, it may start before the jury is sworn in the circumstances that he describes). There is no contrary authority binding on me to the effect that the trial does not start until evidence is called. The Commission’s Guidance is simply guidance. In R v Maynard Master Rogers would appear to have accepted counsel’s concession “that a trial, although not defined, starts (except in circumstances which are not applicable here) when the jury was sworn. Accordingly in my judgment as the jury was empanelled in the present case before the defendant changed his plea the case did “proceed to trial” and therefore falls outside the definition of a cracked trial in paragraph 1(1) of schedule 2. It follows that the solicitors are entitled to a graduated fee for a trial and the appeal is allowed.”

Discussion

[87]In referring to R v Maynardin this part of his judgment, Master Gordon-Saker seems to have given undue status to the inevitable conclusion, on the facts of that case, that a trial had commenced because a jury had been sworn. As already explained, in addition to swearing the jury the case had also been opened and evidence called before the defendant changed his plea. The key decision, in my judgment, whose significance Master Gordon-Saker did not fully address (although he referred to the case), is R v Brook.[88]In Brook, it will be recalled, a jury had been sworn but sent away until the abuse of process application had been determined. It was held that there had not been “a trial in any meaningful sense”. This was an important new stream of authority, followed in R v Baker and Fowler. It is unfortunate that the Lord Chancellor did not draw to the attention of Master Gordon-Saker the decision in R v Bullingham, where the relevant decisions are so helpfully analysed.[89]On the facts of the present case there was nothing which took place on the afternoon of the first day, 10th August, which could be categorised as in any way similar to extended legal argument (R v Dean Smith, R v Wembo) or evidence on the voir dire (R v Bullingham) such as to justify the conclusion that a trial had started in any meaningful sense. The jury was sworn, quite properly, for the convenience of the jurors, and the convenience of the administration of the court, and not because the trial was at that moment beginning. The very clear indication in the court log that the jury was not “put in charge” serves to underline the Judge’s intention that the trial would not begin until the following day.[90]At the hearing of this appeal we did not have the advantage of oral submissions on behalf of the solicitors. In the course of argument I therefore put to Mr Bedenham possible alternative tests for determining whether, and if so when, a trial begins, endeavouring to draw together the strands of authority.[91]One suggestion might be that a trial begins “when the trial begins in a meaningful sense, and at the latest when a jury is sworn”. The difficulty with the latter part of this formulation is that it undesirable to lay down any rigid rule of this kind which is liable to produce an air of artificiality when (as in this case) there was no trial in any meaningful sense. It would be unfortunate in the extreme if practitioners felt compelled to insist on a jury being sworn at a particular stage purely for financial reasons rather than to further the interests of justice by accommodating and respecting the convenience of members of the public called upon to perform jury service.[92]There may be some cases where the swearing of the jury, or possibly even the selecting of the jury, can properly be regarded as marking the beginning of the trial provided the court is genuinely dealing thereafter with matters which directly affect the orderly progress of the trial so that, even without the jury, the trial is proceeding in a meaningful sense.[93]As was said in R v Bullingham (supra), the swearing of the jury is not the conclusive factor in deciding whether and if so when a trial has begun. Nor, in my judgment, should any fine distinctions be drawn depending upon whether the jury has merely been selected, or has been sworn, or has actually been put in charge of the defendant. The key issue is whether the trial has commenced in a meaningful sense.[94]In this regard it is right to note the growing practice throughout England and Wales of selecting but not swearing jurors on the first day of a long trial. It is a practice encouraged and advocated in the Crown Court Bench Book “Directing the Jury”, published by the Judicial Studies Board (as it then was) in March 2010, at page 278-9. It sensibly allows the jurors the opportunity to reflect overnight whether they would have any practical difficulty in serving on a jury for many weeks, before they are finally sworn and the defendant is put in their charge next day. Commonly a great deal of important work by the advocates and the litigators, vital to the smooth running of the trial, will be going on in court on the day on which the jury, in such circumstances, is selected but not sworn. Depending on the circumstances, and consistent with the dicta of Mitting J in R v Dean Smith (supra), that may well mean that the trial has begun in a meaningful sense.

Conclusions

[95]For all these reasons I have reached the clear conclusion that, contrary to the decision of the Costs Judge, this was indeed a cracked trial, because the case did not “proceed to trial” in the requisite sense. The fact that the jury had been sworn was only one of the relevant factors to be considered. There was no trial in any meaningful sense.[96]I would summarise the relevant principles as follows:(1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun.(2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by a defendant, or a decision by the prosecution not to continue (R v Maynard, R v Karra).(3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes (Meek and Taylor v Secretary of State for Constitutional Affairs).(4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty (R v Brook, R v Baker and Fowler, R v Sanghera, Lord Chancellor v Ian Henery Solicitors Ltd [the present appeal]).(5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous processresulting in the empanelling of the jury, the opening of the case, and the leading of evidence (R v Dean Smith, R v Bullingham, R v Wembo).(6) If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense.(7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense.(8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the determining officer, as Mitting J did in R v Dean Smith, in the light of the relevant principles explained in this judgment.[97]It follows from my conclusions that some of the propositions set out in the Litigator Graduated Fee Scheme Guidance (last reissued 3rd February 2011) are inaccurate and require revision. For example the purported definition of “trial” in paragraph 3.4 (set out in full at [27] above) is inaccurate and incomplete. Paragraph 3.7 (set out in full at [51] above) may require revision, in the light of the observations of Mitting J in R v Dean Smith. Days when the judge is considering such matters as disclosure, admissibility of evidence, abuse of process and public interest immunity may, depending on the circumstances, count as days which form part of the trial, and the trial is thus the “main hearing” for the purpose of paragraph 10(2) of Schedule 1.

Costs

[98]Mr Bedenham indicated at the conclusion of the hearing that if the Lord Chancellor succeeded in this appeal there would be no application for costs against the solicitors. The solicitors were themselves awarded costs below in the sum of £350 (plus VAT) by Master Gordon-Saker, together with the repayment of their appeal fee of £100. In my judgment, despite the outcome of the appeal, that costs order should stand. The solicitors raised a proper point of substantial importance on which they succeeded before the Costs Judge. The Lord Chancellor pursued this appeal not to penalise the solicitors in the particular case, but to clarify the meaning of the graduated fee schemes. Furthermore, it was an unfortunate omission that the Lord Chancellor did not draw to the attention of Master Gordon-Saker the decision of Master Campbell in R v Bullingham, an omission which may conceivably have led him into error. The costs order made in the solicitors’ favour will therefore stand.

Postscript

[99]Although the decision in this appeal has been (as it must be) mine and mine alone, my assessors have read this judgment in draft. I am gratified that it is a decision with which they both strongly agree.

Cited in 27 later judgments

and 18 more of the most senior