Lord Chancellor v McCarthy [2012] EWHC 2325 (QB)

Case No QB/2011/0538

[2012] EWHC 2325 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ON APPEAL FROM COST JUDGE SIMONS

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/08/2012

Before

MR JUSTICE SWEENEY

Sitting with Assessors

Between

THE LORD CHANCELLORAppellant

MARTIN MCCARTHYRespondent

David Bedenham (instructed by Treasury Solicitors) for Appellant

Hearing Hearing dates: Friday 22 nd June 2012

Judgment

Mr Justice Sweeney :

Introduction

[1]This is an appeal by the Lord Chancellor (“the Appellant”) under the provisions of Article 31(5) of the Criminal Defence Service (Funding) Order 2007 (SI 2007 No. 1174) (“The 2007 Order”) against a decision of Costs Judge Simons who, on 14 June 2011, dismissed an appeal by Mr Martin McCarthy (“the Respondent”) against a redetermination by a Determining Officer that the Respondent and four other counsel instructed for the defence in the case of Dhillon and others in the Bristol Crown Court should be paid a graduated fee based on a Class B offence, rather than on a Class A offence as claimed, but directed the Determining Officer to consider favourably any application for an extension of time for counsel to put in claims in respect of the original indictment in the case which, he concluded, was a separate case for payment purposes based on a Class A offence.

[2]The appeal has concentrated upon the merits of the decision in relation to the Respondent. The interlinked issues that I am asked to decide, with the benefit of assessors, namely Master Campbell and Mr Simon Browne QC, are whether Costs Judge Simons was right:- i. To conclude that payment based on a Class B offence was appropriate. ii. To direct the Determining Officer in the way that he did.

[3]In accordance with Article 31(8) of the 2007 Order I have the same powers as the Determining Officer and the Costs Judge, and may reverse, affirm or amend the decision of 14 June 2011, or make such other order as I think fit.

[4]Unusually both sides argue for the same outcome, namely that I should conclude that:- i. The judge was wrong to conclude that payment based on a Class B offence was appropriate and should have concluded, as the Respondent had argued throughout, that payment based on a Class A offence was required. ii. The judge should not have given the direction that he did.

[5]It is necessary first to set out the relevant provisions.

The relevant provisions

[6]Schedule 1 to the 2007 Order sets out the Revised Advocates’ Graduated Fee Scheme.

[7]Paragraph 1(1) of Schedule 1 provides:- “In this Schedule – ‘case’ means proceedings in the crown Court against any one assisted person – (a) On one or more counts of a single indictment;… ‘cracked trial’ means a case on indictment in which – (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; and (ii) Either – (a) In respect of one or more counts which the assisted person pleaded guilty, he did not so plead at the plea and case management hearing…” (a) On one or more counts of a single indictment;… (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; and (ii) Either – (a) In respect of one or more counts which the assisted person pleaded guilty, he did not so plead at the plea and case management hearing…”

[8]Paragraph 2(1) of the Schedule provides that:- “Subject to sub-paragraphs (2) to (8), this Schedule applies to – (a) every case on indictment….” (a) every case on indictment….”

[9]Paragraph 3(1) of the Schedule provides that:- “For the purposes of this Schedule –(a) every indictable offence falls within a Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed will be deemed to fall within Class H;

(b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977… fall(s) within the same Class as the substantive offence to which (it) relate(s)…..” (a) every indictable offence falls within a Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed will be deemed to fall within Class H; (b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977… fall(s) within the same Class as the substantive offence to which (it) relate(s)…..”

[10]Paragraph 6 of the Schedule provides that:- “The amount of the graduated fee for a single trial advocate representing one assisted person in a guilty plea or cracked trial is – (a). the basic fee specified in the table following paragraph 7 as appropriate to the offence to which the assisted person is charged, the category of trial advocate and whether the case is a guilty plea or a cracked trial; and (b) the evidence uplift, as appropriate to the number of pages of prosecution evidence, calculated in accordance with the table following paragraph 7.” (a). the basic fee specified in the table following paragraph 7 as appropriate to the offence to which the assisted person is charged, the category of trial advocate and whether the case is a guilty plea or a cracked trial; and (b) the evidence uplift, as appropriate to the number of pages of prosecution evidence, calculated in accordance with the table following paragraph 7.”

[11]Paragraph 22 of the Schedule provides that:- “(1) where an assisted person is charged with more than one offence on one indictment, the graduated fee payable to the trial advocate under this Schedule will be based on whichever of those offences the trial advocate selects. (2) where two or more cases to which this Schedule applies involving the same trial advocate are heard concurrently (whether involving the same or different assisted persons) – The trial advocate must select one case (‘the principal case’), which must be treated for the purposes of remuneration in accordance with this schedule;…..”

[12]In Lord Chancellor v Shapiro (2010) 5 Costs LR 769

[2010] EWHC 1247

QB I decided that the phrase “every case on indictment” was effectively a shortened version of the phrase “proceedings in the Crown Court… on one or more counts of a single indictment”.

[13]Section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (“the 1933 Act”), as amended by the Coroners and Justice Act 2009, provides that :

“Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence…..and it shall thereupon become an indictment and be proceeded with accordingly.”

[14]Rule 14.1 of the Criminal Procedure Rules, as amended by the Criminal Procedure (Amendment) Rules 2009 (SI 2009 No.2087), which was the Rule in force at the material time, provided that:

“(1) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after – (a) service on the defendant and the Crown Court officer of copies of the documents containing the evidence on which the charge or charges are based, in a case where the defendant is sent for trial:….. (2) The Crown Court may extend the time limit, even after it has expired. (3) Unless the Crown Court otherwise directs, the court officer must – (a) sign, and add the date of receipt on, the indictment; and (b) serve a copy of the indictment on all parties.” (a) service on the defendant and the Crown Court officer of copies of the documents containing the evidence on which the charge or charges are based, in a case where the defendant is sent for trial:….. (a) sign, and add the date of receipt on, the indictment; and (b) serve a copy of the indictment on all parties.”

The factual background

[15]At the time of the determinations by the Determining Officer, and of the appeal before the Costs Judge, the facts were not as clear as they are now. As then understood, they were broadly as follows.

[16]On 16 January 2010 there was a shooting incident in Swindon in which two men called Egerton and Monro were wounded.

[17]By 21 January 2010 four defendants (Dhillon, Gittins, Seeley and Turley) had been sent for trial to the Bristol Crown Court under the provisions of section 51 of the Crime and Disorder Act 1998, as amended. Those representing them were served (it seems at the Magistrates Court) with a draft indictment jointly charging all the defendants with a single offence, namely conspiracy to murder Egerton (a Class A offence).

[18]A representation order (which referred to the conspiracy to murder charge) was issued in relation to Dhillon, and the Respondent was instructed as Leading Junior on his behalf. Miss Claire Davis was instructed as his junior. Mr Tregilgas-Davey and Miss Lucy Davis represented Gittins, and Mr Hall represented Seeley.

[19]There must have been a preliminary hearing in the Crown Court at some point but it was not possible to identify when.

[20]On 14 May 2010 the case was listed for PCMH before Clarke J. There was no record of any indictment having been served on the court by that stage. The prosecution indicated that it was reconsidering the shape of the case. Accordingly the PCMH was adjourned to 14 June 2010 – with the prosecution being required to serve any new indictment in the interim.

[21]On 10 June 2010 a three count indictment was served on the court, in which all four defendants were charged with conspiracy to wound Egerton (a Class B offence), and Gittins and Seeley were charged with wounding Monro with intent and possession of a firearm with intent to endanger life. The adjourned PCMH was duly listed on 14 June 2010 but was unable to proceed. The three count indictment was before the court, but there was nothing in the court record to indicate that it had been signed. The PCMH was then adjourned to 6/7 August 2010.

[22]On 6/7 August 2010 the adjourned PCMH had to be adjourned again – this time to 10 September 2010. On that date all the defendants were present and a new joined indictment was preferred with leave. It contained five counts. In Counts 1 – 4 Gittins and Seeley were variously charged with a firearms offence arising out of events in December 2009, conspiracy to wound Egerton, wounding Monro with intent, and possession of a firearm with intent to endanger life. In Count 5 Dhillon and Turley were charged with conspiracy to cause Egerton actual bodily harm (a Class C offence). There was nothing in the court record to indicate what, if anything, was done in relation to any previous indictment. The trial was adjourned until 22 November 2010.

[23]At trial, Dhillon offered an acceptable plea. Seeley likewise offered an acceptable plea, but there was a full trial in respect of Gittins.

[24]The Respondent thereafter argued throughout, based upon the original service on the defence of the draft indictment charging conspiracy to murder, the fact that the defendants were sent for trial on that charge, and the nature of the defendants’ representation orders, that it was inconceivable that that indictment had not been served on the court (whether as part of the transfer bundle or otherwise), and that whether signed or not it had thus become [by virtue of s.2(1) of the 1933 Act as amended, and Rule 14 of the Criminal Procedure Rules as amended] a valid indictment – albeit that it was never formally dealt with at the conclusion of the proceedings as it should have been. Thus he submitted that (pursuant to paragraph 22 of Schedule 1 to the 2007 Order) he was entitled to elect to be paid a graduated fee based on a Class A offence.

The decisions of the Determining Officer

[25]At some stage prior to 27 February 2011 the Determining Officer determined that the Respondent should be paid a graduated cracked trial fee based on a Class B offence.

[26]On 27 February 2011 the Respondent sought a redetermination of that decision.

[27]On 9 March 2011 the Determining Officer wrote to the Respondent indicating that she had concluded that no indictment had been served on the court prior to that produced by the prosecution in June 2010 and as that indictment charged a Class B offence that was the class upon which payment should be based.

[28]Thereafter, on 24 May 2011, the Determining Officer wrote again to the Respondent. She identified the difficulty in the case as being the identification of what was the original indictment, and indicated that (having gone through all the paperwork) she could find no trace of any indictment prior to the one served in June 2010. Whilst acknowledging the possibility that, nevertheless, an indictment charging conspiracy was served on the court, she contended that it would have had to be served “on a ‘case by case’ basis against the defendant(s) on that particular case in order to be entered on the record as an indictment”. She further asserted that “any ‘indictment’ covering more than one case must necessarily be inadmissible as THE indictment as cases can only be joined by leave of the judge and thereafter a joint indictment preferred”. Finally, she pointed out that there was no record of any such leave having been granted and, in particular, that it had never been joined with the June 2010 indictment.

The Judgment of Costs Judge Simons

[29]The Respondent lodged a skeleton argument to which he annexed the draft indictment served on the defence.

[30]Having set out the facts, the Respondent’s arguments, the relevant provisions of the 2007 Order, and considered the effect of Rule 14 of the Criminal Procedure Rules as in force at the relevant time, the learned judge continued:- “15 In this particular case I am satisfied that the indictment showing the offence of conspiracy to murder was a valid indictment. I accept Mr McCarthy’s submission that when the case was sent from the Magistrate Court, the only offence before the court was that of conspiracy to murder. It is clear from the copy of the unsigned indictment that is annexed to Mr McCarthy’s skeleton argument that an indictment was prepared, albeit unsigned, and until the June 2010 indictment was presented to the Crown Court in June 2010, that was the only indictment before the court. However, a major difficulty is that the conspiracy to murder indictment was never joined to the June 2010 indictment nor does it appear to have been quashed or dealt with in other manner, and therefore if it is a valid indictment it still has not been dealt with. 16 As the first indictment has not been joined, quashed or dealt with, it would appear that there are two cases as the definition of ‘case’ in the Regulations is that of proceedings against any one assisted person on one or more counts of single indictment. 17 Applying my findings to the facts in this case, counsel are entitled to claim fees in respect of each indictment. In my judgment, counsel cannot select a different category of offence under Regulation 22(1) as this regulation applies to more than one offence on one indictment. Conspiracy to murder did not appear on the June 2010 indictment. Furthermore, Regulation 22(2) does not apply as that regulation only applies where two or more cases are heard concurrently. The case relating to the conspiracy to murder indictment has not been heard or dealt with. 18 Mr Davey (one of the other counsel instructed) cannot claim a Class A fee as under Regulation 4(2) the basic fee specified in the table is the one that is appropriate to the offence for which the assisted person was tried. His clients were tried on the June 2010 indictment which did not include a Class A offence. 19 Counsel representing defendants whose trials cracked are in a slightly different position in that Regulation 6 specifies the basic fee as appropriate to the offence with which the assisted person was charged (as opposed to tried in Regulation 4(2)) but that regulation goes on to say that the basic fee is dependent whether the case is guilty plea or cracked trial. In this instance the case in which there was a cracked trial was that set out in the June 2010 indictment which contained no Class A offences. 20 In my judgment therefore these appeals must all fail on the grounds that their claims based on the June 2010 indictment have been properly paid by the Determining Officer as Class B offences. However, I would direct the Determining Officer to consider favourably any application for extension of time for counsel to put in claims in respect of the original indictment which, in my judgment, is a separate case.”

The new material

[31]Since the judgment of Costs Judge Simons new material has come to light which has, as indicated above, clarified the factual position.

[32]On 29 April 2010 the Crown Prosecution Service sent a letter to the Bristol Crown Court enclosing a copy of the conspiracy to murder indictment for signature and retention by the court.

[33]That indictment, albeit unsigned, was before the court on 14 May 2010.

[34]On 4 June 2010 Mr Ian Lawrie QC was instructed for the prosecution. It was him who drafted the three count indictment that was served on the court on 10 June 2010.

[35]The adjourned PCMH on 14 June 2010 was unable to proceed because one of the defendants was ill, and there were technical problems with the video link in respect of two of the others. Nevertheless, during the hearing Mr Lawrie indicated that that the prosecution no longer intended to proceed upon the conspiracy to murder indictment, but instead upon the new three count indictment which he indicated would be formally preferred once all the defendants were present.

[36]On 23 July 2010 there was a contested custody time limit application in respect of the defendants Gittins and Seeley. During that hearing Mr Lawrie indicated that another firearms offence relating to Gittins and Seeley (arising out of separate events in December 2009) was in the pipeline, and that the prosecution would seek to link it to the instant case.

[37]When the five count indictment was preferred on 10 September 2010, all other extant indictments (including the original one charging conspiracy to murder) were formally stayed.

The issues

[38]The Appellant is concerned that Costs Judge Simons proceeded (in paragraph 15 of his judgment) upon the erroneous view that there was a valid indictment charging conspiracy to murder for the purposes of paragraph 1 of Schedule 1 to the Funding Order solely because the defendants were provided with a draft of such an indictment at the Magistrates Court. Had that been the judge’s reasoning I would agree with the Appellant that it was erroneous – an indictment can only be preferred in accordance with Rule 14 and the 1933 Act. However, I do not read his judgment in that way. Rather it seems to me that the judge accepted the thrust of the Respondent’s argument that that indictment must have been served on the Crown Court in the requisite manner, and was before that court during one or more of the hearings that took place before June 2010.

[39]That concern aside, on the Appellant’s behalf, Mr Bedenham accepts (in view of all the factual material that is now available) that, following the sending to the Crown Court, a draft indictment alleging conspiracy to murder was duly served (whether within the time limit or via an extension of time) pursuant to Rule 14 of the Criminal Procedure Rules as then in force, and that (in accordance with the amendment of s.2(1) of the 1933 Act) it duly became ‘the indictment’ when it was served. It did not, as was the case until 2009, need to be signed by an officer of the court in order to become ‘the indictment’. Therefore he accepts that there was an indictment alleging conspiracy to murder in the case. Thus he further accepts that, by the operation of paragraph 22(1) of Schedule 1 to the 2007 Order, the Respondent was entitled to a cracked trial graduated fee based (via his selection) on a Class A offence – albeit that Dhillon eventually pleaded guilty to an indictment containing (as against him) only a Class C offence.

[40]Unsurprisingly, given that that was what he sought from the outset, the Respondent agrees.

[41]As I have already indicated, the facts were not as clear as they have now become when the case was being considered by the Determining Officer and then by the judge.

[42]On the particular facts of this case, as they have now emerged, it is clear in relation to Dhillon that there was one case in which the prosecution served (in relation to a given set of facts) different valid iterations of an indictment – ultimately electing to proceed on one and staying the remainder. Hence, in this case, the existence of further indictments (whether stayed or not) could not properly be said to give rise to further “proceedings in the Crown Court against any one assisted person on one or more counts of a single indictment” such as to give rise to a finding that there was an additional “case” and therefore the need for the payment of an additional graduated fee.

[43]Issues of this type are always likely to be fact sensitive. Therefore, particularly absent much more detailed argument, I do not propose to try to give any wider guidance.

[44]At all events, the appeal is allowed. Costs Judge Simons’ orders are quashed. The Respondent is entitled to the payment of a single cracked trial graduated fee based on a Class A offence. Neither side applies for costs in the appeal. Any costs order made against the Respondent by Costs Judge Simons is also quashed. Sweeney J 6 August 2012