R v McGowan [2026] EWHC 1297 (SCCO)

Neutral Citation No. [2026] EWHC 1297 (SCCOCase No 202102716B4SCCO Reference: SC-2025-CRI-000140
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 29 May 2026
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvMCGOWANJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Richard Christie 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 £1,750 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.COSTS JUDGE LEONARD
Between
McGowanDefendantRCrown
[1]This appeal concerns the fees payable to the Appellant, Richard Christie KC, under the Criminal Legal Aid (Remuneration) Regulations 2013, for representing Legally Aided appellant Owen McGowan before the Court of Appeal. McGowan was one of four appellants (collectively, “the appellants”) in the same criminal appeal hearing. The others were Emeka Dawuda-Wodu, Bradley Baker and Nyle Backhouse.[2]Paragraph 1 of Schedule 3 to the 2013 Regulations reads:
“(1) The provisions of this Schedule apply to proceedings in the Court of Appeal. (2) In determining fees the appropriate officer must, subject to the provisions of this Schedule— (a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and (b) allow a reasonable amount in respect of all work actually and reasonably done.” (a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and (b) allow a reasonable amount in respect of all work actually and reasonably done.”
[3]Paragraph 9 of Schedule 3 prescribes the rates payable to advocates for such work but, at sub-paragraph (4), says:
“(4) Where it appears to the appropriate officer, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with the table following sub-paragraph (1) would not provide reasonable remuneration for some or all of the work the appropriate officer has allowed, the appropriate officer may allow such amounts as appear to the appropriate officer to be reasonable remuneration for the relevant work.”

The Background to this Appeal

[4]In mid-December 2019, Dawuda-Wodu assisted in the disposal of the corpse of William Algar, who had been murdered, and in destroying evidence of the murder. On 19th December 2019, Dawuda-Wodu and others murdered Ebrima Cham.[5]Both of the deceased had previously been supplied with drugs by dealers with whom Dawuda-Wodu was involved. Algar was stabbed to death, and his body was left in his home. Dawuda-Wodu was acquitted of that murder, but pleaded guilty to being one of the men who some weeks later cut up the body and buried parts of it.[6]Cham was also stabbed to death. Dawuda-Wodu was convicted of his murder in April 2021.[7]In the early hours of 3rd January 2020, Charlie Hirshman was stabbed outside the home of a female friend whom he had visited that night. The appellants, who were at that property that night, were prosecuted for a joint knife attack on Hirshman. His evidence was that he first saw them when he went to the house on the previous evening; that he saw them in the living room when he later returned with his female friend; that he could see the outlines of knives in their trousers; that they all came to the front door as he was leaving; and that they all took part in stabbing him repeatedly.[8]Hirshman sustained three wounds to his torso and two wounds to the left side of his face. One of the wounds to the torso passed through the ribs, injured the spleen and punctured a lung, causing a pneumothorax. Hirshman’s diaphragm was also injured.[9]On 29th July 2021, after a jury trial in the Crown Court at Kingston-upon-Thames before His Honour Judge Shetty, the appellants were convicted of a joint offence of wounding Hirshman with intent to do him grievous bodily harm. They were acquitted of a charge of attempted murder of Hirshman.[10]McGowan, Baker and Backhouse were sentenced by HHJ Shetty on 23rd December 2021. Backhouse was also sentenced on that date for offences of possession with intent to supply drugs of both Class A and Class B and an offence of money laundering, to all of which he had pleaded guilty. Dawuda-Wodu was separately sentenced by Her Honour Judge Joseph KC at the Central Criminal Court, having been convicted of an offence of murder and pleaded guilty to an offence of perverting the course of justice.[11]McGowan, who had been 16 years old at the time of the attack and was agreed to be of very limited intellectual ability (in the bottom 0.3% of the population) was sentenced to an extended determinate sentence of 7 years, comprising 6 years’ detention and 1 year’s extended licence. Baker and Backhouse received longer custodial sentences. Dawuda-Wodu was sentenced to custody for life.[12]Dawuda-Wodu appealed against his sentence by leave of the single judge, and renewed to the full court his application for leave to appeal against conviction, which had been refused by the single judge. Baker’s application for an extension of time in which to apply for leave to appeal against sentence was referred to the full court by the Registrar. Baker had also applied to renew his application for leave to appeal against conviction following refusal by the single judge, and had applied to vary his grounds of appeal and to rely on fresh evidence, but those applications were abandoned at the appeal hearing with the leave of the court. An application by Backhouse for an extension of time in which to apply for leave to appeal against sentence was referred to the full court by the Registrar.[13]McGowan appealed by leave of the single judge against his conviction and sentence, and renewed to the full court two grounds of appeal against conviction in respect of which the single judge had refused leave.[14]I have reviewed the Advice and Grounds of Appeal prepared by the Appellant (without the assistance of a junior) on conviction and sentencing.[15]The Advice and Grounds of Appeal against conviction run to 31 pages. The summary of grounds at the conclusion of the Advice reads: 1. The Learned judge erred in declining to give a Turnbull direction to the jury. 2. Further, and in any event, the learned judge erred in failing to remind the jury of key evidence contradicting the identification evidence relating to the Applicant. 3. The Learned judge erred in ruling that evidence relating to the recovery of two machetes found in his father’s bedroom cupboard should be admitted in evidence as its prejudicial value exceeded its probative effect. 4. The Learned Judge erred in ruling that evidence relating to internet searches a month before the offences indicted on a phone whose number was registered to the Applicant’s father, but which was found in the Applicant’s possession at the time of his arrest, should be admitted in evidence as its prejudicial value exceeded its probative effect. 5. Further, and in any event, the Learned judge was wrong to conclude that the evidence referred to at paragraphs 3 and 4 above was governed by s.98 CJA 2003 and thus admissible subject to exclusion, as opposed to being bad character evidence, for which there was no application. 6. In so ruling the learned judge wrongly conflated the issue of the machetes and the internet searches and treated them as one rather two distinct issues that required separate consideration. 7. Further, and in any event, the learned judge wrongly failed to direct the jury properly as to the approach they should adopt to this material when summing up the case to the jury. 8. Further, and in any event, the learned judge refused to correct assertions made by the prosecution in their closing speech that it was unlawful to possess the machetes in question with the result that de facto bad character evidence of a different kind was given to the jury without either, an application, correction or any direction to assist them. 9. The absence of full disclosure in relation to the Applicant’s status as the child victim of modern-day slavery adversely affected the fairness of his trial. Specifically, the non-disclosure adversely affected decisions about: i. Whether the Applicant should adduce evidence from prison transcripts set out at Annex B herein; ii. Whether the Applicant should give evidence; and iii. Compounded the deficiencies arising from the failure to give the Turnbull direction complained of at paragraphs 1 and 2 above; and/or iv. May have prevented a s.35 direction or, alternatively, neutralized its impact. The “Turnbull Direction” referred to comprises a set of warnings and directions to be given where the prosecution case depends on visual identification evidence. I believe that the s.35 direction referred to would have been to Section 35 of the Criminal Justice and Public Order Act 1994 and the inferences properly to be drawn where a defendant does not give evidence at trial.[16]The Advice and Grounds of Appeal against sentence run to 13 pages. The summary of grounds at the conclusion of the Advice Reads: 1. The learned judge erred in concluding that this was a category 1A offence from the point of view of the Sentencing Guidelines. 2. Further, and in any event, the learned judge selected a starting point which was too high in all the circumstances of the case 3. The learned judge erred in concluding that the Applicant was dangerous within the meaning of the Sentencing Code 4. Further, the learned judge made findings of dangerousness which involved taking account of material that had not been tested in evidence and which involved making findings about other offences that had not been tried.[17]William Davis J granted leave to appeal, against sentence and against conviction on grounds 3-7 only, on 9 May 2022.[18]The appeal was heard on 21 February 2023. The Court of Appeal refused McGowan’s application to extend time in which to renew grounds 1-2 against conviction and dismissed his appeal against conviction. The Court however allowed his appeal against sentence, quashing the sentence of seven years and substituting a sentence of five years and six months, comprising a custodial term of four years and six months’ detention and an extended licence period of one year.[19]On 3 March 2023 the Appellant submitted a claim for payment. The claim was for £18,375.00 plus VAT for 73.5 hours’ preparation (an hourly rate of £250) and £1,500 for the day in court. The preparation time, according to counsel’s worklogs, breaks down into 58.15 hours on the appeal against conviction and 15.35 hours on the appeal against sentence. Of the time on the appeal against conviction, 18.85 hours (plus, presumably, a proportion of 51 emails claimed at 5.1 hours) was undertaken after leave was given by the Single Judge on all but grounds 1 and 2.[20]It is not in issue that the prescribed rates at paragraph 9 of Schedule 3 would not represent reasonable remuneration for the work undertaken by the Appellant. The Determining Officer, nonetheless, reduced the amount allowed substantially from that claimed by the Appellant. Initially he allowed a total of £9,000 plus VAT, to include 48 hours’ preparation and a subsidiary fee of £500 for a full day’s court attendance. This would represent an hourly rate, for preparation work, of £177.[21]On redetermination, according to a letter of 1 November 2024, the Determining Officer allowed all the preparation time claimed on the appeal against sentence and another 10 hours on the appeal against conviction. He explained:
“The reason for the only remaining disparity in hours allowed is that there was no representation order for preparation and presentation of the renewed grounds (Grounds 1 and 2) following refusal by the Single Judge.”
[22]According to his written reasons of 10 September 2025, on this redetermination the Determining Officer allowed a further payment of £1,750 “to include a further 4 hours preparation on the Sentence application and a further 10 hours on the conviction appeal (i.e. on Grounds 3-7 only), taking the total preparation hours to about 64 hours”.[23]That cannot be right. 48 hours plus 14 hours is 62 hours, not 64 hours. The additional payment made on 1 November 2024 was not £1,750 but £2,450 plus VAT.[24]For an additional 14 hours’ work that would represent an hourly rate of £175; for 16 hours (if that is what the Determining Officer meant, to reach the stated total of 64 hours) it would be £153 per hour. Neither figure is consistent with the initial award.[25]It does seem to be the case however, given what he said in his letter of 1 November 2024, that the Determining Officer(a) allowed all the preparation time claimed on the appeal against sentence and(b) disallowed either 9.5 hours or 11.5 hours of preparation time on the appeal against conviction, on the sole ground that leave to appeal had been refused on grounds 1 and 2.[26]The Determining officer’s written reasons are not consistent with this. He observed that notwithstanding the seriousness and difficulty of the case, the 73.5 hours preparation as claimed was “a bit high”. He characterised the entire claim as a brief fee of £23,850 (a figure inclusive of VAT), which he considered excessive, and suggestive of too high a level of responsibility upon the Appellant given the Appellant’s familiarity with the relevant facts and issues, having acted below; given that leave to appeal (and a representation order) was only granted on the conviction appeal in respect of Grounds 3-7 only; and given that the reading time, to include those relevant to all co-appellants, was given in the CAO case summary as 8 hours. The reasonable preparation allowed by him was, he observed, almost 8 times the suggested reading time in the CAO case summary for the core material.[27]The Appellant appeals, arguing that the Determining Officer’s reasoning is inconsistent and flawed, and that his figures do not add up.[28]It seems to me that the November 2024 latter is a more reliable indicator of the Determining Officer’s actual reasoning at the time of redetermination and payment than the written reasons delivered 10 months later.

The Appellant’s Submissions

[29]The Appellant submits that this was a difficult and very involved appeal in which he acted throughout without a junior. The hearing lasted a full day, the court sitting through lunch.[30]The Appellant acted for the only defendant to have been granted leave to appeal against both conviction and sentence, but the case was greatly complicated by the numerous applications by other defendants and by the fact that Dawuda-Wodu had been previously convicted of murder and disposing of a different victim’s body. There were other rulings and transcripts to consider in Dawuda-Wodu’s case which were germane to this one (Hirshman had given evidence in the other trial). It was also necessary to liaise about how the court might wish to deal with the case, given Dawuda-Wodu’s more serious involvement.[31]As well as arguments in respect of legal rulings, involving a large number of legal authorities and analysis of the Crown Court Compendium, the case also involved the unusual fact that the Defence obtained fresh expert medical evidence to challenge the nature of the allegedly life-threatening injuries sustained by Hirshman. This point was first raised by the Appellant on behalf of McGowan. The other defendants then then joined in and received leave, which necessitated extra liaison time. There were 921 pages of new material alone in relation to the appeal, of which 244 pages related to 20 authorities.[32]A considerable extra burden was cast upon the Appellant given these unusual evidential issues and the fact that McGowan had never been in custody in the past and had no previous convictions of note (he had been convicted of robbery of £0.75 when he was 10 and of possession of cannabis when aged 12). McGowan also had a significant psychiatric history and an IQ that was amongst the lowest in the country. This, and his young age, went to the issue of his alleged dangerousness. He had severe learning difficulties and had an intermediary throughout the trial as a result, necessitating greater time and a significant extra burden on counsel.[33]As set out in the Appellant’s worklogs for the appeals against conviction and sentence, there were significant problems in the provision of transcripts by the Court of Appeal. The court was meant to provide missing transcripts but instead twice provided revised versions of the summing up, necessitating the amendment of all the Appellant’s earlier work cross-referencing and linking. The court office expressly apologised for this and acknowledged the additional work imposed upon the Appellant as a result.[34]There was a further ground of appeal that had to be developed but which was subsequently abandoned. It emerged at the sentencing hearing (on 17th and 23rd December 2021) that in Backhouse’s pre-sentence report he admitted his guilt whilst at the same time exonerating McGowan and Baker. The Prosecution refused to disclose this document, but Baker’s solicitors obtained it, so extra liaison was required on a very important aspect of the case.[35]The Prosecution served two Respondent's Notices, running to a total of 32 pages, to both of which the Appellant responded.[36]The preparation time for the appeal against conviction was not significantly increased by grounds 1 and 2. They were straightforward points, on which the Appellant had done most of the work before leave was refused.

Conclusions

[37]Having reviewed the papers I am entirely satisfied that this appeal should be allowed.[38]The Taxing Officer's Notes for Guidance which, at paragraph 1.11 set out the factors relevant in determining the reasonable amount of counsel’s fees:
“(i) the importance of the case, including its importance to each defendant in terms of the consequences to his livelihood, standing or reputation even where his liberty may not be at stake; (ii) the complexity of the matter; (iii) the skill, labour, specialised knowledge and responsibility involved; (iv) the number of documents prepared or perused with due regard to difficulty and length; (v) the time expended; and (vi) all other relevant circumstances…”
[39]This was a substantial, heavy case in which the Appellant had to undertake a great deal of work (including, I notice, from his worklog, on weekends and public holidays) and carried much responsibility.[40]It seems to me that in the 10-month period between redetermination and the delivery of written reasons the Determining Officer lost track of what he had already done. In particular he overlooked that he had already accepted that all of the Appellant’s preparation time had been reasonable, so that it was only appropriate to deduct such time as was properly attributable to grounds 1 and 2 of the appeal against conviction after leave to appeal on those grounds had been refused.[41]I am in any event unable to accept the Determining Officer’s stated reasoning. Whilst there are many ways to calculate counsel’s fees, it seems to me to be wrong to conflate the work undertaken by counsel on the Advice and Grounds of Appeal with the work undertaken by counsel for the hearing, so as to bundle all of the work undertaken by the Appellant between August 2021 and February 2023 into a single “brief fee” which is then deemed to be excessive. One must look at the work done in its proper context. Nor should one treat the VAT element as if it were a payment to the Appellant.[42]I do not regard the Appellant’s familiarity with the case at first instance to be particularly pertinent in this case, not least where he undertook the entire burden of the appeal proceedings without the support of a junior.[43]Nor can I accept the comparison between the reading time required by the court for reading core materials and the total time taken by the Appellant, over 18 months, to prepare the entire appeal. They are not, in my view, remotely comparable. Again, one must judge the work done in its proper context.[44]As to grounds 1 and 2 of the appeal against conviction, out of a total of 18.5 hours’ preparation actually undertaken by the Appellant on the appeal against conviction after leave was given, the Determining Officer has (depending upon which of his stated figures one adopts) disallowed either 51% or 62%. This is not an appropriate amount of time to attribute to two out of eight grounds of appeal which in themselves seem to have taken little court time (they were swiftly disposed of at paragraph 37 of the Court’s judgment).[45]With regard to the hourly rates allowed by the Determining Officer, I refer to the judgments of Costs Judge Whalan in R v Doak [2023] EWHC 271 (SCCO) and R v. Rafiq [2019] SCCO Ref: 27/19; of Costs Judge Brown in R v Walker [2022] EWHC 2841 (SCCO) and of Costs Judge Rowley (now the Senior Costs Judge) in R v Lawrance [2022] EWHC 3112 (SCCO) and R v Williams [2025] EWHC 2412 (SCCO). Typical rates allowed to leading counsel on appeals of this nature have, for some years, been between £250 and £275 per hour.[46]Taking into account the TONG criteria and the nature and the circumstances of the appeal, it is my conclusion that an appropriate fee to counsel for the work undertaken on this appeal would be £17,500 for preparation time and the claimed £1500 for the appeal hearing. That is a total of £19,000 plus VAT.[47]The appeal, accordingly, succeeds.