R v Mohammed Ali [2025] EWHC 699 (SCCO)

[2025] EWHC 699 (SCCO)Case No T20197495SCCO Reference: SC-2024-CRI-000069
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 21 March 2025
London, WC2A 2LL
Before
COSTS JUDGE ROWLEYRvMOHAMMED ALIJudgment on Appeal under Regulation 29 of theCriminal Legal Aid (Remuneration) Regulations 2013Appellant: Brian Neill KCThe appeal has been successful for the reasons set out below.The appropriate additional payment, to which should be added the sum of £750 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.COSTS JUDGE ROWLEY
Between
Mohammed AliDefendantRCrown

Costs Judge Rowley:

[1]This is an appeal by Brian Neill KC against the decision of the determining officer to disallow Mr O’Neill’s claim for special preparation under The Legal Aid (Remuneration) Regulations 2013 as amended.[2]Paragraph 17 of the 2013 Regulations deals with special preparation and the relevant passages for this decision are as follows:
“17.—(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable under Part 2 or Part 3— (a) it has been necessary for an advocate to do work by way of preparation substantially in excess of the amount normally done for cases of the same type because the case involves a very unusual or novel point of law or factual issue.” (2) Where this paragraph applies, a special preparation fee may be paid, in addition to the graduated fee payable under Part 2 or Part 3 (3) The amount of the special preparation fee must be calculated— (a) where sub-paragraph (1)(a) applies, from the number of hours preparation in excess of the amount the appropriate officer considers reasonable for cases of the same type;”
[3]The wording of 17(1)(a) was described by Costs Judge Gordon-Saker as being unhelpful and confusing in his decision in the case of R v Ward-Allen [2005] Costs LR 745. Nonetheless, he wrestled with the wording and produced the definition which has subsequently been employed by determining officers and costs judges in deciding claims under this provision. Where, as here, there is no suggestion of a novel point of law, the question is whether there has been a “factual issue which is outwith the usual professional experience.”[4]The determining officer in this case has referred to that test in concluding that the circumstances here do not establish a successful claim for remuneration. Before I set out the background to this case on which counsel disagrees with that determination, I should deal with the determining officer’s alternative reason for disallowing the claim in its entirety. In passing I also record the determining officer’s comment that if this appeal is successful in principle, then the determining officer considers that an allowance of 40 hours rather than the claim of 114 hours should be payable.[5]The determining officer’s alternative reason is that the material considered by counsel was served as “unused” and therefore falls within the proxies within the graduated fee. In support of this reason, the determining officer refers to the Crown Court Fee Guidance which indicates that unused material is one of the main areas of litigation included in the graduated fee. The difficulty with that reasoning, however, is set out at paragraph 17(2) above. If a claim for special preparation under this provision (or indeed under the other reasons for special preparation such as where the 10,000 page cut-off for Pages of Prosecution Evidence has been reached) is successful, then expressly that claim is paid in addition to the graduated fee.[6]Turning to the facts of this case, it was alleged that Mohammed Ali, together with four others was responsible for the murder of a someone who was alleged to be a rival drug dealer. At the end of the first trial in 2021, two of the co-defendants were acquitted and the jury was unable to reach a verdict in respect of Mohammed Ali and the other two defendants. A second trial took place in 2022 but that trial came to an end before the jury retired to give their verdicts. Consequently, a second retrial took place, and it was between the two retrials that Mr O’Neill came on board in place of his predecessor who, together with his instructing solicitors, had become professionally embarrassed. As part of preparation for the second retrial, Mr O’Neill had to consider the transcripts of the two previous trials. Since Mohammed Ali was in the witness box for a total of 14 days in those two trials, there was a considerable amount to read and for which he recorded via a log a total of 114 hours. This is the sum that has been claimed by way of special preparation and does not involve any other work done in respect of the preparation for the trial and for which the graduated fee is payable.[7]Mr Wells of counsel, who appeared on behalf of Mr O’Neill at the hearing of this appeal, emphasised the rarity of second retrials and provided me with references to judicial pronouncements to this effect. He also expanded upon the point originally made by Mr O’Neill in his claim for special preparation that it was unusual for leading counsel to have dealt with the first two trials without complaint but then have to retire from the case through professional embarrassment. Mr Wells also emphasised the cut-throat nature of the defence run by Mohammed Ali who was not with the other two defendants at the time of the shooting.[8]The determining officer did not accept that it was an uncommon event for retrials to take place where the jury had failed to reach a verdict. Nor did he consider it unusual for solicitors or counsel to be replaced in the course of a case for a variety of reasons. Consequently, he did not accept that the circumstances here provided a factual issue outwith the usual professional experience.[9]There is obviously some force in the determining officer’s views. Both retrials and the replacement of legal teams occur every day, even if, in themselves, they are unlikely events in most criminal cases. There has to be some guarding against ignoring the cumulative effect of a number of events which, even if they are not sufficient in themselves, ultimately amount to an unusual professional experience.[10]I am not convinced that if Mr O’Neill had come on board after the original trial (so it was a first retrial), there would be any argument that this was in any way unusual let alone “essentially unique” as apparently subsequent case law has glossed the Ward-Allen guidance.[11]Nor am I convinced that the judicial comments regarding second retrials are entirely apposite in this case. Those pronouncements very much relate to two juries failing to come to a unanimous decision and whether, in those circumstances, a further trial is likely to come to a different result. That is not the situation here because, for reasons I am coming onto, the second jury did not have to consider its verdict.[12]Shortly before the first retrial was due to start, a witness came forward to state that she had overheard a conversation between the two co-defendants in her role as a prison officer. It ultimately turned out that the witness had been put up to giving this evidence by Mohammed Ali. As such, the evidence which tended to exculpate him and inculpate the others, rendered a fair trial impossible before that jury.[13]I have been provided with the opening note for the second retrial and the circumstances in which the witness and Mohammed Ali conspired to create this evidence is set out in some detail. By the time that opening note had been created, the witness and Mohammed Ali had pleaded guilty to a charge of conspiring to pervert the course of justice and were to be sentenced at the end of the second retrial, regardless of the outcome of the substantive charges.[14]It seems to me that the effect of this conspiracy casts a very different light on the task before Mr O’Neill when he became leading counsel for Mohammed Ali prior to the second retrial. The transcripts of earlier trials are not always of any relevance to a retrial and the service of the transcripts as unused evidence might suggest that it was not in the expectation of the prosecution that they would necessarily be relevant in this case. But I am persuaded, given the nature of the defences run against each other by the defendants, that the transcripts had to be considered in some detail. This would both be in respect of what would obviously be relevant in terms of the case being put forward by Mohammed Ali against the other defendants, but also the potential for seemingly innocuous comments to become relevant during the second retrial.[15]Accordingly, I take the view that the combination of the two retrials and the late instruction of leading counsel, when added to the conspiracy to pervert the course of justice in the middle of this case, leads to a conclusion of a factual issue outwith the usual professional experience.[16]In terms of quantification, paragraph 17(1)(a) requires a computation of how much work would normally be done in cases of the same type in order to consider whether the amount claimed is indeed substantially in excess of that amount. The period of 114 hours claimed does not directly deal with this issue. Neither does the determining officer’s proposal of allowing 40 hours instead, in my view. The determining officer’s quantification is based on a view that, on a minutes per page basis, the amount of time claimed is excessive. That does not seem to me to be a sound basis for reducing the amount claimed since the regulation refers to the amount of preparation time rather than simply reading time (as is specifically stated in respect of pages read above the 10,000 PPE threshold). It is inevitable that consideration of the transcript would involve cross-referencing witness statements and exhibits by way of preparation and not simply a reading of the transcripts themselves.[17]Although I raised this matter with Mr Wells (and indeed Mr O’Neill was present on his appeal), I did not receive any specific comment as to the amount of time that would normally have been spent. I am not entirely surprised by this given that the very basis for the claim is that it is very unusual if not unique. Nevertheless, that is what the regulation requires.[18]During the hearing of the appeal I queried how unusual the instruction of leading counsel following an inconclusive trial for the purposes of the retrial would be. The response was that it was not that unusual, or at least not sufficiently unusual to satisfy the test in the regulations. It was the fact of a second trial which was relied upon, particularly by Mr Wells.[19]As I have indicated above, Mr O’Neill kept a log of the preparation time in respect of reading the two lengthy transcripts. It was possible to establish how much of the 114 hours related to reading the transcript of the first retrial. It turned out that it was very similar to the 40 hours proposed by the determining officer.[20]In the absence of any comparable figure for the amount of work normally done proffered by either the appellant or the determining officer in this appeal, I have decided to take the following approach. If counsel had been instructed between the original trial and the first retrial, he would have to have read the transcript of the first trial as part of his preparation. Such work seems to me to be normal where counsel is instructed partway through a case.[21]The need to read a second transcript arises from the unusual second retrial and it is here that I consider work done in excess of the normal amount can be found. That work not only includes the unusual second retrial but also the conspiracy to pervert the course of justice events. The time spent on that second transcript is broadly a 50% increase on the amount of time taken to read solely first transcript. In my view, such a percentage satisfies the need for the preparation to be substantially in excess of the amount done.[22]Accordingly I consider that Mr O’Neill is entitled to 40 hours of special preparation under paragraph 17(1)(a) to represent preparation substantially in excess of the amount normally done in cases of this type as a result of a very unusual novel factual issue. Having been successful, Mr O’Neill is also entitled to a contribution to his costs of the appeal including the appeal fee.