R v Ridley & Ors [2026] EWHC 1302 (SCCO)

Neutral Citation No. [2026] EWHC 1302 (SCCOCase No T20237012SCCO Reference: SC-2025-CRI-000120SC-2025-CRI-000125SC-2025-CRI-000126SC-2025-CRI-000128SC-2025-CRI-000127SC-2025-CRI-000135SC-2025-CRI-000152SC-2025-CRI-000154IN THE HIGH COURT OF JUSTICESENIOR COURTS COSTS OFFICEThomas More BuildingVenue Royal Courts of JusticeLondon, WC2A 2LLDate 29 May 2026
Before
COSTS JUDGE LEONARDR v RidleyR v BurrowsR v SmithR v PriceR v BriggsJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant Counsel:Bryan Cox KC and Helen Chapman (R v Ridley)Jason Pitter KC and Alistair McDonald (R v Burrows)James Bourne-Arton KC (R v Smith)Peter Moulson KC (R v Price)Clive Stockwell KC and Andrew Vout KC (R v Briggs)These appeals have been successful for the reasons set out below.The £100 paid on appeal should be paid to each Appellant, and the sum of £800 (exclusive of VAT) paid to James Bourne-Arton KC for costs.COSTS JUDGE LEONARD
Between
Ridley & OrsDefendantRCrown
[1]This appeal from the Legal Aid Agency (“LAA”)’s Determining Officer concerns the “Graduated Fee”, calculated in accordance with the provisions of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, payable to the Appellants as advocates representing five Legally Aided (“assisted”) co-defendants to a prosecution in the Crown Court at Hull.[2]A Graduated fee is payable to each Appellant for each Legally Aided case undertaken by each of them. Schedule 1 incorporates detailed provisions for calculating the fee payable for each case depending upon matters such as, for example, whether the case came to trial.[3]“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]“Counts” are the specific charges listed on the indictment, and one of the factors by reference to which a fee is calculated is the nature of the criminal offence or offences charged against the assisted defendant. 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…”
[5]The AGFS Banding Document bands offences according to their nature and seriousness. Broadly speaking, higher fees are payable for more serious or complex cases.[6]Part 2 of Schedule 1, at paragraphs 4, 5 and 5A, incorporates provisions for calculating Graduated Fees for trials by reference to criteria including the AGFS band “for which the assisted person is tried”.[7]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…”
[8]Part 2.3, paragraph 6 of the Legal Aid Agency (LAA)’s Crown Court Fee Guidance explains the effect of paragraph 27(1):
“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. The fee can only be based on an offence with which the defendant represented by the advocate is charged on the indictment...”
[9]The words “for which the assisted person is tried” are, accordingly, subject to the selection made by the advocate under paragraph 27(1). It follows that where an assisted defendant is charged on one indictment with a number of offences, it is open to the advocate to choose the offence by reference to which the Graduated Fee will be calculated. As long as that offence appears on the indictment, the fee payable to the advocate will be calculated in accordance with that choice. That is the case even if, for example, the assisted defendant is ultimately tried only for a lesser offence in a different band.[10]I undertook a more detailed analysis of the relevant provisions in R v Pratt [2025] EWHC 987 (SCCO)).[11]These appeals concern charges of murder and manslaughter. The AGFS banding document bands such offences, under the description “Murder/Manslaughter”, in this way:
“Band 1.1: Killing of a child (16 years old or under); killing of two or more persons; killing of a police officer, prison officer or equivalent public servant in the course of their duty; killing of a patient in a medical or nursing care context; corporate manslaughter; manslaughter by gross negligence; missing body killing. Band 1.2: Killing done with a firearm; defendant has a previous conviction for murder; body is dismembered (literally), or destroyed by fire or other means by the offender; the defendant is a child (16 or under). Band 1.3: All other cases of murder. Band 1.4: All other cases of manslaughter.”
Band 1.4: All other cases of manslaughter.”

Background

[12]The Appellants’ lay clients (“the five Defendants”) were five of thirteen defendants, all of whom had been involved in a violent affray on the evening of 24 March 2023 which caused the death of Kamil Milczarczyk, then 24 years of age. Much of what happened was captured by CCTV footage.[13]During the course of the evening, Mr Milczarczyk had been out with a group of five friends in Hull City Centre. Some sort of relatively minor confrontation occurred between Mr Milczarczyk’s group and Sharif, Burrows and Price, three of the thirteen co-defendants. After the incident Sharif, Burrows and Price gathered together the group of thirteen, who then collectively attacked Mr Milczarczyk and his friends. In the attack, Mr Milczarczyk was fatally stabbed by Brandon Thompson.[14]At the outset of the proceedings the indictment against the thirteen defendants was indictment B1. It charged all thirteen with one count of murder. One of the defendants to the murder charge, Mackenzie Talbot, had been under 16 years of age on 24 March 2023 and was, for the purposes of the prosecution, a child.[15]On 25 July 2023, following a review of the evidence and in anticipation of a Plea and Trial Preparation Hearing (“PTPH”) listed for 1 August 2023, the Prosecution uploaded indictment B2 to the Crown Court’s Digital Case System (“DCS”). On indictment B2 only Thompson was charged with murder, as well as one count of possessing an offensive weapon. The five Defendants (along with one co-defendant) were now charged with manslaughter. All thirteen defendants were charged with violent disorder, which was now the only charge against Mackenzie Talbot.[16]I have been supplied by the Appellants with a copy of a Prosecution application, dated 24 August 2023, for the extension of custody time limits for several of the defendants. The application helpfully sets out the history of the prosecution in some detail. The custody time limits referred in the extension application date from the end of March 2023, when it would appear that at least ten, if not all, of the thirteen defendants had been sent to the Crown Court by the Magistrates’ court.[17]The application records that by the time of a hearing before HHJ Thackray KC on 28 April 2023, it had been established that the Crown Court at Hull would be unable to accommodate within the custody time limits a trial involving thirteen defendants. The court listing department had contacted other court centres nationally to determine whether the trial could have been heard at an alternative court, but the only court that could have potentially done so was the Crown Court at Loughborough, which was also unable to list the trial within the custody time limits.[18]HHJ Thackray KC had, accordingly, listed two six-week trials and asked the Prosecution to sever the defendants into two groups of six and seven, so as to ensure that all of the defendants could have a trial within a reasonable time period. Ultimately, I understand, there was one trial for the offences of homicide and another for those defendants who pleaded not guilty to the offences of violent disorder.[19]The application also states that on 1 August 2023, “All defendants appeared before HHJ Thackray KC for PTPH. The amended indictment was preferred”. This is evidently a reference to indictment B2. The thirteen co-defendants’ pleadings to indictment B2, were summarised in the application as follows: Name Count 1 Murder Count 2 OW Count 3 Manslaughter Count 4 VD Bradley Thompson NG NG G Tyler Ridley NG G Harry Price NG Not put Corey Burrows NG Not put Jack Briggs NG Not put Andrew Smith NG NG Loui Taylor NG NG Bradley Moyo NG Mackenzie Talbot App Dism Safwan Sharif Not put Henri Hairsine G Mason Opie-Palmer G Harvey Rimmingon NG[20]The court log for 1 August 2023 indicates that, after Thompson was removed from indictment B1, all of the other defendants except Thompson were also arraigned on indictment B1. They pleaded not guilty and the Prosecution offered no evidence.[21]I understand that the five Defendants were ultimately acquitted of Manslaughter but pleaded guilty to Violent Disorder. When their cases had concluded, all of the Appellants submitted claims for a Graduated fee based on band 1.2.[22]The LAA’s Determining Officer concluded that indictment B2 was a new indictment rather than an amendment of indictment B1, so that two case fees were payable to each Appellant. In relation to indictment B1 the case fee would be based upon offence band 1.2. In relation to indictment B2 the case fee would be based upon offence band 1.4. Overall, this resulted in a lower payment to each Appellant than the fee claimed for a single case based on offence band 1.2.[23]I should mention that in respect of indictment B1, it is accepted by the Respondent (the Lord Chancellor, represented by the Legal aid Agency) that each of the Appellants is entitled to a fee based on band 1.2 because (although they were all adults at the time of the offences with which they were charged) one of their co-defendants to the murder charge (Mackenzie Talbot) was a child.[24]In R v Symons [SCCO Ref 149/21] Costs Judge Rowley (now the Senior Costs Judge) found that band 1.2 extended to adults charged, along with a child, with murder or manslaughter. The words “the defendant is a child”, read in context and bearing in mind the practical and logistical difficulties in dealing with a co-defendant who is a child, stands be read in that way. The Respondent, for the purposes of this appeal, does not take issue with that.[25]The question on this appeal is rather whether, from 1 August 2023, each of the five Defendants faced a new indictment, so that there were for each of them two cases, the second case justifying a fee based on band 1.4.

The Evolution of the “Multiple Indictments” Issue

[26]This is an unusual appeal, being the first of which I am aware in which it is the Lord Chancellor who advances the proposition that a defendant has faced more than one indictment in the course of a prosecution. Usually the argument is advanced by an appellant, seeking payment of more than one case fee in respect of the same client.[27]The decisions of Costs Judges on such appeals, whilst necessarily fact-specific, have over the years necessarily adapted to the practice and procedure attendant upon the now standard practice of preferring indictments through the DCS. That is (at least in part) because the DCS does not lend itself to the pre-digital practice of amending indictments manually. In the DCS it may be necessary to replace a previous iteration of an indictment with what on its face is a “new” indictment but in reality is no more than an amended version. Costs Judges have recognised that.[28]One of the most frequently quoted pre-DCS decisions on the subject of whether, as a result of multiple indictments, there has been one or more “case”, is that of Master Gordon-Saker in R v Hussain and Others [2011] 4 Costs L.R. 689.[29]In R v Hussain and Others it appeared that there had been four indictments against the same defendant. Indictments 1 and 2 (“the second indictment”) had been joined, but not proceeded with. Indictment 4 amounted only to an amendment of indictment 3 (“the third indictment”), which went to trial and resulted in a conviction.[30]Master Gordon-Saker found that, by reference to the 2007 Order, there had been two cases, for which two graduated fees were payable. A trial fee was payable (and had been paid) for the third indictment. On the facts of that particular case, an additional trial fee was also payable for the second indictment.[31]In R v Ayomanor (SC-2020-CRI-000146, 12 January 2021) Costs Judge Whalan took a similar approach to a case in which a defendant had entered not guilty pleas on an indictment alleging six counts of fraud and converting criminal property. That indictment was quashed, and at the time of Costs Judge Whalan’s judgment the defendant was facing trial on a second indictment. Judge Whalan found that two graduated fees were payable.[32]A change in approach came with R v Wharton (SC-2020-CRI-000195, 1 February 2021), in which Costs Judge Rowley (now the Senior Costs Judge) considered the way in which indictments are managed within the DCS.[33]R v Wharton concerned an assault in the course of which the defendant had injured his partner. He first faced two counts of occasioning actual bodily harm and common assault. In the course of a bail hearing, the offences with which he was indicted changed in that his assault on his partner was alleged to have caused grievous bodily harm.[34]The appellant in that case, Mr Turner, claimed two case fees, relying upon DCS entries which indicated that an application had been made by the Crown and leave given to prefer a new indictment, the original being stayed. Judge Rowley, in accordance with regulation 29(11) of the Criminal Legal Aid (Remuneration) Regulations 2013, made enquiries of the Trial Judge. He found that judges in the Crown Court were increasingly adopting a flexible approach where the prosecution seeks to change an indictment. Because of the way in which the DCS works, it could be more practicable to stay an existing bill of indictment and prefer a new version, than to amend the original. In reality no more than an amendment was being made.[35]It follows that the fact that an original indictment was stayed or quashed is not of itself determinative of whether there were two cases, although it may be cited in support of that proposition. In R v Wharton the second indictment simply represented an amendment to the first. There was never any prospect of the defendant facing charges of both actual and grievous bodily harm arising from the same incident. There was no basis for concluding that there had been two cases.[36]In R v Moore [2022] EWHC 1659 (SCCO), costs Judge Whalan, in the light of the changes in practice identified by Costs Judge Rowley in R v Wharton, refined his approach from that taken in R v Ayomanor. In R v Moore a second indictment had superseded a first, which was formally stayed by the court, and the changes were substantive rather than “a mere tinkering or tidying up of the charge”. Yet, he found, the offence was essentially the same. The second indictment was, accordingly, merely an amendment of the original indictment.[37]Other Costs Judges, including me, have taken their cue from R v Wharton and recognised that it is necessary to look at the substance of the indictments rather than their form. The parties have referred me to many decisions made since then, in which Costs Judges have adopted that approach. I do not need to refer to all of those cases, which are not binding and are necessarily fact-specific, but I can refer to some that seem to me to have some bearing upon this appeal.[38]In R v Thomas [2022] EWHC 2842 (SCCO) I observed that in a working environment in which even minor changes to an indictment might be (or might have to be) implemented by the preferment of a second form of indictment and the quashing or stay of the first, rather than the physical alteration of an existing one, it would be inconsistent with the purpose of the 2013 Regulations and unworkable in practice to reach the conclusion that two graduated fees are, in consequence, payable.[39]There would have to be a real distinction between the relevant indictments, sufficient to justify the conclusion that there has been more than one case against a defendant. Otherwise there is, for the purposes of the 2013 Regulations, a single indictment.[40]So, for example, the replacement on the DCS of one indictment with another adding defendants or additional counts would not in itself establish that there has been more than one indictment or more than one case. Where however, following the quashing of one indictment and the preferment of another, the nature of the criminality alleged against the Defendant has been radically changed, then it may be right to conclude that there have been two cases (R v Rafiq & Others [2024] EWHC 1319 (SCCO)).[41]Judge Rowley made this point at paragraph 34 of his judgment in R v Shabir & Khan [2022] EWHC 2232 (SCCO): “Unless there has been a severing of the indictment so that the defendant has to face two separate trials, or there is something equally distinct about the indictments being faced by a defendant… then the process of amendment of the indictment up to and including the trial is only one case which the defendant is facing and entitles the defendant’s legal representative to one graduated fee”.[42]The Appellants have referred me to similar reasoning at paragraph 18 of the judgment of Cost

Judge Brown in R v Mohamed [2024] EWCA 308 SCCO:

“…save for two early cases (… decided at early stages of the introduction of the Digital Case System…) in various factual circumstances that are set out in these decisions, the mere staying or quashing of an indictment and the preferring of a new one, has not been considered a sufficient basis to say the proceedings had been pursued on two indictments…”

The Appellants’ Submissions

[43]Most of the eight Appellants were, on the hearing of this appeal, represented by Mr Bourne-Arton KC. I am grateful to him for expanding upon the Appellants’ written submissions, which for the most part take the same points. I do not find it necessary here to reprise those submissions, but I have taken account of all of them.

The Respondent’s Submissions

[44]The Respondent was represented on the appeal by counsel. I am grateful for the submissions written by Mr Orde and expanded upon in the appeal hearing by Mr Laking.[45]I do not find it necessary to refer here to all the judgments referred to by the Respondent, although the judgments of Judge Nagalingam in R v Jian Wen [2026] EWHC 120 (SCCO), of Judge Rowley R v Valjeet Singh [2025] EWHC 421 (SCCO) and my own judgment in R v Rafiq & Others bear mention as examples of cases in which the nature of the criminality against a given defendant had changed to the extent that it was right to find that there had been two indictments and two cases.[46]In R v Jian Wen the defendant faced trial for entering into a money laundering arrangement and for possession of criminal property. The defendant was alleged to have purchased large volumes of cryptocurrency with the proceeds of a fraud that had been committed in China, then laundering the cryptocurrency by converting it into assets.[47]The addition to the indictment of a further count, alleging money laundering activity relating to a further cryptocurrency account, substantially increased the value of the criminality and the volume of transactions under investigation. It had an inevitable impact on the volume of evidence to be considered and it raised the offence category, for sentencing purposes, from 3 to 1, so significantly increasing the prospective sentence .[48]In R v Valjeet Singh the defendant originally faced a two count indictment involving a conspiracy to transfer cash from the UK and participation in the criminal activities of an organised crime group. Amendments to the indictment left the defendant facing seven counts of removing criminal property, much more specific than the general counts of conspiracy in the first iteration of the indictment, and changing the nature of the case against him so that he was a principal in the organisation rather than a follower.[49]In R v Rafiq & Others the defendant faced one count of conspiracy to murder (subsequently amended to a simple murder charge). Further iterations of the indictment added two new defendants and, as against the Defendant and others, a new count of doing acts tending and intended to pervert the course of justice. The Defendant was acquitted of murder but convicted on the new count.[50]The Respondent submits that there was in this case, as in those, a real distinction between indictments B1 and B2.[51]First, indictment B1 featured a single count of murder in which all defendants faced the same case. B2 featured a four count indictment outlining a significant hierarchy of criminality amongst the respective defendants and a potentially significant alteration in the way the prosecution might put their case against each one respectively. This would be dependent, in turn, on their particular pleas and the composition of any trial.[52]Second, a child defendant was charged with murder on indictment B1, and on the second count did not face a charge of homicide at all. As Judge Rowley observed in R v Symons, that represented a significant change in trial procedures.[53]Third, there was an expansion of the case from offences against the person (murder) to a public order offence.[54]The indictment number is irrelevant. Regard must be had to the substance of the changes to the indictment. It is accepted that manslaughter is a statutory alternative to murder, and it is commonplace for manslaughter to be left to a jury as an alternative to a murder verdict. That fact, however, must be considered in the broader context of the case including the removal of a child defendant from charges of homicide; expansion to cover a public order offence; and the lack of an initially clear distinction between Brandon Thompson and the other defendants.[55]The need to accommodate the trial of thirteen defendants does not explain the substantive changes to the nature of criminality in indictment B2, nor is it supported by the available evidence. To change the nature of the case against a group of defendants for administrative reasons would be a surprising course of action.[56]The suggestion that a finding by this Court as to the number of indictments against the five Defendants could lead to convictions being quashed is, says the Respondent, hopeless. This Court exercises a civil jurisdiction which can have no precedent effect on a concluded criminal trial. That jurisdiction is conferred by the 2013 Regulations and any finding on the number of indictments is solely for the purposes of remuneration under the Advocates’ Graduated Fee Scheme set out in Schedule 1.[57]In oral submissions, Mr Laking made an additional point. Referring to the court log from 1 August 2023, he argued that indictment B1 must on that date effectively have been brought to an end with the removal of Thompson, the arraignment of the remaining 12 defendants on the charge of murder, their pleas of not guilty and the offering of no evidence by the Prosecution. It would follow that indictment B2 was a completely new indictment.

Conclusions

[58]It seems to me that the correct conclusion must be that there was in substance only ever one indictment, and so one case, against each of the five Defendants.[59]I agree that the available evidence does not support the (somewhat surprising) proposition that the charges against the thirteen defendants were changed in order to accommodate the court’s timetabling capacity, but that is not really to the point. This appeal turns on the substance of the case against the five Defendants from time to time, and whether there was any material change in the criminality alleged against them. In my view, there was not.[60]The five Defendants were indicted in relation to their participation in a violent attack upon another group of young people over what would appear to have been a short period on the evening of 24 March 2023. They were charged with responsibility for a violent death, and the case against each of them, in terms of criminal conduct, was straightforward. There is no evidence to suggest that there was any change in the Prosecution case as to their conduct on that evening, nor to the evidence against them: quite the contrary. The only changes to the indictments against them were to the specific charges they faced as a result of that conduct.[61]Those changes were no more than amendments. Clearly, that is precisely how Prosecuting counsel saw it. Hence the reference in the Prosecution’s application for the extension of custody time limits to an “amended indictment” on 1 August 2023. I agree with that view.[62]I do not find persuasive the matters relied upon by the Lord Chancellor in support of the proposition that there had been two indictments against the five Defendants.[63]Indictment B2 did not, in my view, create anything that could properly be described as a new “hierarchy of criminality”. This was a street fight, not an international money laundering operation. Thompson aside, the defendants were charged with manslaughter and/or violent disorder as appropriate to the criminal conduct of which they were accused. The distinction between public order and personal offences is, for present purposes, wholly immaterial.[64]The presence or absence of a child among the defendants to a charge of murder or manslaughter would have had a bearing upon the court’s procedures and upon the calculation of the Graduated Fee ultimately payable to their legal representatives. It would have had no bearing upon the substance of the case against any of the adult defendants.[65]It is scarcely unusual for an indictment to be amended so that a defendant is, on the same facts, charged with a lesser offence than was initially pursued by the Prosecution. Amendments of precisely that kind are regularly followed by a guilty plea, so as to achieve an effective settlement on terms that both Prosecution and Defence can accept. It seems to me that on the Lord Chancellor’s case, every such arrangement would found an arguable claim to the payment of more than one Graduated Fee.[66]As for the proposition that indictment B1 came to an end with the arraignment of all of the defendants other than Thomas, followed by the offering of no evidence by the Prosecution, that seems to me to be yet another argument that focuses on procedure rather than substance. There is nothing to distinguish it from the argument raised on so many unsuccessful appeals before Costs Judges, to the effect that if an indictment has been formally quashed or stayed then it must have been replaced by a new indictment.[67]The workings of the DCS are such that amendments to an indictment can only be made by creating a new document, and that earlier iterations of the amended indictment need to be formally terminated, whether by quashing, stay or otherwise. The approach adopted by the court on 1 August 2023 seems to me to have been as good a method as any.[68]As the judgments to which I have referred illustrate, Costs Judges have been careful, on “multiple indictment” appeals, to adopt an approach that prevents the payment of multiple fees for what is in reality a single case. To adopt the line of reasoning urged on me on behalf of the Lord Chancellor in this case would have represented a departure from that approach.[69]Were I and other Costs Judges to accept that line of reasoning the ultimate cost to the Graduated Fee scheme could, I suggest, far outweigh the benefit attendant on the dismissal of these appeals, which could have been something of a phyrric victory for the Lord Chancellor.[70]In any event, for the reasons I have given, these appeals are successful.