R v Pratt [2025] EWHC 987 (SCCO)

[2025] EWHC 987 (SCCO)Case No T20207375SCCO Reference: SC-2024-CRI-000124
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 22 April 2025
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvPRATTJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Mark Cotter KC (Counsel)The appeal has been successful for the reasons set out below.The appropriate additional payment, to which should be added the sum of £800 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.COSTS JUDGE LEONARD
Between
PrattDefendantRCrown
[1]This appeal concerns the Graduated Fee, calculated in accordance with the provisions of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, payable to the Appellant for a re-trial.[2]I have been referred to a number of provisions of Schedule 1, referred to below, as in effect at the date of the relevant Representation Order, 29 September 2020.[3]A “case” is defined at paragraph 1 of Schedule 1 in this way:
“case” means proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment…”
[4]Paragraph 2, Schedule 1 deals with retrials (referred to as “a new trial”). The pertinent provisions, for present purposes, are at sub- paragraphs (2) and (3):
“(2) Sub-paragraphs (3) and (4) apply where, following a trial, an order is made for a new trial and the same trial advocate appears at both trials where… the defendant is an assisted person at both trials… (3)… in respect of a new trial, or if the trial advocate so elects, in respect of the first trial, the graduated fee payable to the trial advocate must be calculated in accordance with Part 2 or Part 3, as appropriate, except that the fee must be reduced…”
[5]Sub- paragraph (3) goes on to set out the percentages by which trial fees are reduced for retrials in given circumstances. The appropriate reduction is not in issue on this appeal.[6]Sub-paragraph 3(1) of Schedule 1 reads:
“every indictable offence falls within the band of that offence set out in the AGFS Banding Document…”
[7]The AGFS Banding Document categorises offences according to their nature and seriousness. The banding is taken into account when a trial fee is calculated, in the following way.[8]Part 2 of Schedule 1, at paragraphs 4, 5 and 5A, incorporates provisions for calculating Graduated Fees for trials. Paragraph 4 sets out the formula, by reference to criteria (referred to as “proxies”) including the AGFS band:
“The amount of the graduated fee for a single trial advocate representing one assisted person being tried on one indictment in the Crown Court in a trial must be calculated in accordance with the following formula— GF = BF +(D × DAF) where— GF is the amount of the graduated fee; BF is the basic fee specified as appropriate to the band of the offence for which the assisted person is tried and the category of trial advocate… D is the number of days or parts of a day on which the advocate attends at court by which the trial exceeds 1 day; DAF is the fee payable in respect of daily attendance at court for the number of days by which the trial exceeds 1 day, as appropriate to the band of the offence for which the assisted person is tried and the category of trial advocate…”
GF = BF +(D × DAF)

where—

[9]Part 3 of Schedule 1 deals, at paragraph 7, with guilty pleas and cracked trials. The appropriate fees are calculated by reference to the AGFS banding “… appropriate to the offence with which the assisted person is charged…”[10]Part 6 of Schedule 1 contains miscellaneous provisions, including paragraph 27(1):
“Where an assisted person is charged with more than one offence on one indictment, the fee payable to the trial advocate under this Schedule must be based on whichever of those offences the trial advocate selects…”
[11]Cross-referring to this provision, paragraph 4, part 2.3 of the Legal Aid Agency (LAA)’s Crown Court Fee Guidance as applicable on 29 September 2020, says:
“Where a case has more than one count on the indictment in different offence bandings, the advocate must select one offence and the fee is based on that offence banding…”

Background

[12]The Appellant represented Aaron Pratt (“the Defendant”) in the Crown Court at Cardiff. The Defendant initially faced trial, alongside one co-defendant, on a four-count indictment. Counts 1 and 2 were of causing or allowing a child under 16 to suffer serious physical harm. Counts 3 and 4 were counts of cruelty to a person under 16.[13]The Defendant was charged alone on Count 1. His co-defendant was charged alone on Count 2. They were charged jointly on Counts 3 and 4.[14]Both defendants entered not guilty pleas to all counts. Trial commenced on 11 October 2021. Following submissions on behalf of both defendants, on 28 October 2021, the court directed that not guilty verdicts be entered in respect of Counts 1 and 2 and ordered a retrial for counts 3 and 4.[15]Following a guilty plea by his co-defendant, the Defendant was retried in February 2023. At the conclusion of the retrial he was convicted on counts 3 and 4.

The Issue on this Appeal

[16]Count 1 on the indictment, representing the more serious offence, falls within AGFS band 3.1. Counts 3 and 4 fall within band 3.4. A higher fee is payable for the band 3.1 offence.[17]On assessing the Appellant’s claim for payment, the LAA’s Determining Officer accepted that the trial fee for the October 2021 trial should be based on count 1, a band 3.1 offence. For the February 2023 retrial however, the Determining Officer concluded that, as (in accordance with paragraph 4 of Schedule 1) the fee for a trial must be calculated based on the band of offence for which the assisted person is tried, and the Defendant was being retried only on band 3.4 offences (counts 3 and 4), the fee payable for the retrial must be that appropriate to a band 3.4 offence.[18]The Appellant says that the retrial fee should also be that appropriate to a band 3.1 offence.

The Appellant’s Submissions

[19]Referring to the definition of a case at paragraph 1 of Schedule 1, and to a series of Costs Judge decisions to the effect that there can be only one fee per case (for example R v Abada [2022] EWHC 2926 (SCCO)), the Appellant says that there was here only one case.[20]The indictment faced by the Defendant was amended and redacted for the purposes of the retrial, to account for the formal acquittal on Count 1 and to avoid prejudicing the jury on the retrial, but it was the same indictment. Otherwise there would have been two separate cases and two full trial fees would be payable to the Appellant.[21]Within that one case, the formulae for calculating guilty plea, trial and trial fees at paragraphs 7 and 4 of Schedule 1 (referring as they do, respectively, to “the offence with which the assisted person is charged” and “the offence for which the assisted person is tried” are subject to the principle of selection at paragraph 27 (1) of Schedule 1.[22]So, for example, where a defendant faces two counts on a single indictment, pleads guilty to the more serious offence and is tried upon the less serious offence, it is open to the advocate to claim a trial fee based upon the more serious offence, even though that was not the offence upon which that defendant was tried. Exactly the same principle must apply on a retrial on the same indictment, whatever the offence for which that defendant was actually retried.[23]Further, in paragraph 4 of Schedule 1 the words “the band of the offence for which the assisted person is tried” must also be read in the light of the preceding words “The amount of the graduated fee for a single trial advocate representing one assisted person being tried on one indictment in the Crown Court in a trial must be calculated in accordance with the following formula…”[24]It follows that one must look to the indictment, and that the offence banding for trial and retrial on a single indictment must be the same. So much is obvious where there is only one count on the indictment. Where there are multiple counts, one must look to the principle of selection embodied by paragraph 27(1).[25]That principle applies, expressly, to a single indictment, and so to the whole of a given case. Given that there was more than one count on the indictment against the Defendant it was for the Appellant, in accordance with paragraph 27(1) of Schedule 1, to choose which count should form the basis of the fee payable for that case. That choice encompasses both the trial and the retrial.[26]If the result appears to “overcompensate” the Appellant for the retrial, that is a function of the Graduated Fee scheme, which (as also acknowledged in a series of Costs Judge decisions) operates mechanistically and can have a “swings and roundabouts” effect, rewarding work more generously on some occasions than on others.

The Lord Chancellor’s Submissions

[27]Ms Weisman for the Lord Chancellor argues that, in accordance with Schedule 1, paragraph 2(2), a retrial fee must be calculated in accordance with the provisions of Part 2 (or Part 3, as appropriate). It follows that for any retrial element of the fee, the calculation must effectively start afresh, by reference to Part 2. Applying Part 2, the offence banding appropriate to the count(s) being retried is the relevant proxy.[28]Although there may be many occasions on which the counts on an indictment remain the same for a retrial, there is no provision to the effect that such a calculation must be made with reference to the applicable proxies for the first trial.[29]It is not disputed that there is only one case here, but does not follow that for trial and retrial the same band of offence must be applied. That the calculation of the retrial element of the fee must use the proxies applicable to that retrial does not mean that there are two separate cases with two separate fees. There may always be instances where proxies differ between trial and retrial. For example, the PPE (Pages of Prosecution Evidence) count may vary, or a full trial may be followed by a cracked trial, or a guilty plea. In each case the second leg of proceedings is calculated using different proxies.[30]Nor is it in dispute that the Costs Judge decisions referred to by the Appellant affirm the principle that there can be only one fee per case, and that an amended indictment does not justify a separate case fee, but otherwise they do not support the Appellant’s case.[31]In contrast the decision of Costs Judge Rowley in R v Correa (SCCO Ref: SC-2019-CRI-000019, 30 January 2020) concerned a case factually on all fours with this one. There was a trial and a retrial, and the defendant Correa was acquitted of the more serious offence at the conclusion of the first trial, leaving only the less serious offence to be retried.[32]The appellant in R v Correa did not pursue the arguments advanced by the Appellant in this case. The parties and the court accepted the principle that trial and retrial fees could be calculated using different proxies, including the offence(s) being tried on each occasion.[33]This does not equate to the payment of two separate case fees, nor does it offend the advocate’s right to choose the appropriate offence banding on a multi-count indictment.[34]As for a mechanistic interpretation of the 2013 Regulations, the Determining Officer’s method of calculating the retrial element of the fee is, argues Ms Weisman, entirely mechanistic, restricting itself to taking into account only the appropriate proxies without any element of discretion, and keeping within the strict parameters of the scheme.

Conclusions

[35]Whilst I have taken into account all of the Cost Judge decisions referred to by the parties, I do not find it necessary to refer to them in any detail except R v Correa. Neither the “mechanistic approach” to the application of the 2013 Regulations nor the “one fee for one case” principle are in issue in this appeal. Nor is it in issue that there was only one case, as defined in Schedule 1, against the Defendant.[36]In R v Correa, as Ms Weisman accepts, the points made by the Appellant on this appeal were not put to Judge Rowley. The thrust of the appellant’s argument in R v Correa was that the mechanistic application of the 2013 Regulations (which both parties to this appeal rightly accept is the established and appropriate approach) produced an unfair result. Unsurprisingly, Judge Rowley rejected that argument.[37]Whilst I do not of course purport to speak for him, it seems to me that had the Appellant’s arguments been put to Judge Rowley in R v Correa, the outcome of that appeal could have been different. I say that for these reasons.[38]I agree, for the reasons given by Ms Weisman, that the proxies to be applied to the calculation of trial and retrial fees may vary. Her submissions however do not seem to me fully to take into account the effect of Paragraph 27(1) of Schedule 1, which sets AGFS banding apart from other proxies.[39]Paragraph 27(1) of Schedule 1 is the only provision to which I have been referred that addresses the calculation of an appropriate fee(a) where a defendant faces multiple counts on one indictment, and(b) where the offences specified in those multiple counts fall within different AGFS bands.[40]Paragraph 27(1) addresses that common situation in a straightforward way, by providing that the AGFS band adopted for the purposes of calculating a fee will be that appropriate to whichever offence on the indictment is selected by the trial advocate.[41]As the Appellant says, it follows that the references at paragraph 4 and 7 of Schedule 1, to “the offence for which the assisted person is tried” and “the offence with which the assisted person is charged” must refer to the offence chosen by the advocate under paragraph 27(1). That would seem to explain why paragraphs 4 and 7 refer to the appropriate banding for only one offence, notwithstanding that a defendant is likely to be indicted on a number of offences. In such a case the offence referred to will be whichever offence on the indictment has been selected, in accordance with paragraph 27(1), by the advocate.[42]It is also clear from the wording of paragraph 27(1) that it applies to the whole of the fee payable to the advocate under Schedule 1 for any given case, and so to any part of that fee. The wording of the Crown Court Fee Guidance to which I have referred seems to me to recognise that. There is nothing in Schedule 1 to justify the conclusion that an advocate has to make more than one choice under paragraph 27(1).[43]As the Appellant says there was one indictment, and one case, against the Defendant. The Appellant’s choice of offence under paragraph 27(1) on that single indictment applies, throughout the entirety of that case, to every part of the fee payable under Schedule 1, including the retrial fee.[44]For those reasons, this appeal succeeds.

Cited in 1 later judgment