R v Singh [2026] EWHC 1826 (SCCO)

[2026] EWHC 1826 (SCCO)Case No 13XC0011721SCCO Reference: SC-2025-CRI-000129SC-2025-CRI-000131
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 17 July 2026
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvSINGHRvCLANCYJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellants: Gray’s Defence SolicitorsHarris SolicitorsThese Appeals have been dismissed for the reasons set out below.COSTS JUDGE LEONARD
Between
SinghDefendantRCrown
[1]I must apologise to the parties for the delay in producing my judgment on these appeals from the Legal Aid Agency (“LAA”)’s Determining Officer, which are governed by the Graduated Fee provisions of the Criminal Legal Aid (Remuneration) Regulations 2013.[2]The two Appellants, Harris Solicitors and Gray’s Defence Solicitors, represented Harminder Singh (“HS”) and Julia Clancy (“JC”) respectively in the Crown Court at Bradford. The issue on these appeals is whether the Appellants should each be paid the Graduated Fee appropriate to a trial that has started, or to a cracked trial (as defined below). They have been paid for a cracked trial, but maintain that a full trial fee is payable.[3]Schedule 2 to the 2013 Regulations governs payment to Litigators under the Graduated Fee Scheme. Paragraph 1(1) of Schedule 2 provides definitions that are pertinent for the purposes of this appeal:
“…‘cracked trial’ means a case on indictment in which— (a) the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea 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— (aa) in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the first hearing at which he or she entered a plea; or (bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which he or she entered a plea, declare an intention of not proceeding with them…” (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— (aa) in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the first hearing at which he or she entered a plea; or (bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which he or she entered a plea, declare an intention of not proceeding with them…”
[4]“Trial” is not defined in the 2013 regulations, and in many cases (including this one) the question of whether a trial fee or a cracked trial fee is payable will depend on whether a trial had begun in a “meaningful sense”, the test identified by Mr Justice Spencer in Lord Chancellor v. Henery [2011] EWHC 3246 (QB).[5]Whether that is so will depend upon the facts of the case. At paragraph 96 of his judgment Spencer J set out the principles by reference to which a court can determine the question:
“(1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun. (2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by a defendant, or a decision by the prosecution not to continue… (3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes… (4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty… (5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case, and the leading of evidence… (6) If… a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense. (7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense. (8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the determining officer… in the light of the relevant principles explained in this judgment.”

The Case Law

[6]Given that the issue of whether a trial has started is fact-specific, and given that the difference between a Cracked Trial fee and a Trial fee may be substantial, Costs Judges have heard many appeals from Determining Officers on the issue.[7]In many of them (as in these two appeals) the question turns upon whether the court was, before the relevant defendants pleaded guilty, dealing with substantial matters of case management. The parties have referred me to numerous Costs Judge decisions, all of which (as I have indicated) are necessarily fact-specific and none of which are binding.[8]I will repeat here a summary I have given in similar appeals of what appear to me to be the most pertinent decisions and of the principles the underlie them.[9]It seems clear that in Lord Chancellor v. Henery Spencer J, in using the words “the court is dealing with substantial matters of case management”, had it in mind that (at a stage where at least a jury had been selected) the trial Judge would be called upon to make some sort of ruling or rulings. In R v. Wood (SCCO 178/15) Costs Judge Simons found that this was a prerequisite to a finding that a trial has started on that basis.[10]Costs Judges’ decisions are, however, not binding. Costs Judge Whalan, in R v Cox and R v Pipe, and Costs Judge Rowley in R v Sallah (SCCO 281/18, 18 March 2019) took the view that the resolution of substantial matters of case management by the parties at the direction of or with the approval of the trial Judge, could justify the conclusion that the trial had begun in a meaningful sense.[11]In my view the decision of Costs Judge Simons in R v. Wood is very much in line with the guidance of Spencer J in Lord Chancellor v. Henery. It does not necessarily follow that decisions such as R v Cox, R v Pipe and R v Sallah are not. The point of those judgments, as I understand it, is that there will be circumstances in which there is no material distinction to be drawn between substantial case management undertaken by the court and substantial case management delegated to the parties by the court.

The Background

[12]JC and HS faced trial alongside each other on a five count indictment. HS faced three counts of conspiracy to supply controlled Class A and B drugs. HS and JC together faced a fourth count of production of a controlled drug, Class B (cannabis), and a fifth count of possession with intent to supply cannabis.[13]On 28 February 2023 both defendants appeared at court. HS pleaded not guilty to the allegations of conspiracy to supply but guilty to the two counts concerning cannabis. JC pleaded not guilty to both counts against her. The court listed the matter for trial to start on 26 February 2024. In the event, trial was re-listed to begin on 23 June 2025.[14]I have seen a transcript of the proceedings on 23 and 24 June 2025 before His Honour Judge Smith. On 23 June, the proceedings opened at 10:51 a.m. and the court addressed what were described by prosecution counsel as “housekeeping” matters. These included the fact that Mr Balbir Singh, counsel for HS, was required to attend a sentencing hearing in another case which would take up the whole of the afternoon (as HHJ Smith put it, “we lose the whole of the afternoon”). It subsequently emerged that Mr Sekhon, counsel for JC, had made his own plans for the afternoon on the assumption that Mr Singh would be released.[15]HHJ Smith discussed with prosecution counsel and Mr Singh a proposed bad character application against HS which had been made by the prosecution at 9 p.m. the previous evening. The prosecution wanted to rely upon evidence purportedly showing that HS had taken part in discussions, via the “Encrochat” application, about dealing in Class A and Class B drugs.[16]Mr Singh had responded, and expressed reservations in particular about the age of the evidence, but wanted the opportunity to discuss the application with prosecution counsel and his client. He also wanted to know in advance whether it was likely that evidence would go before the jury, so that he could advise his client accordingly.[17]HHJ Smith, who had not (it would appear from the transcript) seen either the application or the response, pointed out that he could not make any ruling: neither he nor Mr Singh were ready for that.[18]The discussion moved on to empanelling and swearing a jury, which was put in hand. HHJ Smith then addressed Mr Sekhon, making some pithy observations about JC’s defence. In effect, her case seems to have been that she had failed to notice that the two largest bedrooms in her three bedroom house were being used for cultivating cannabis, and that her fingerprints on food bags used to package cannabis must have been left over from previous, innocent use. HHJ Smith queried the credibility of this defence, and emphasised the importance of discounts for guilty pleas.[19]Time was then taken up with the selection, empanelling and swearing of a jury, and HHJ Smith’s “homily” to the jury explaining how they were expected to perform their duties. Bail was then dealt with, by which time it was about 12:10. Before a short adjournment, HHJ Smith emphasised to Mr Sekhon (evidently for the purposes of making it clear to JC that a discount for a guilty plea before trial, if she chose to enter such a plea, was still available) that “I don’t regard the trial to have started, Mr Sekhon”.[20]After the short adjournment Mr Singh indicated that in the light of the observations made by HHJ Smith (including his observations on discounts for guilty pleas) the parties were in a position to pursue discussions, and bearing in mind that only 45 minutes was left to the court on that day, he indicated that the time could be used fruitfully by the parties. He invited HHJ Smith to stand for the jury down until the following morning.[21]Whilst observing that HS had had months to make his mind up, and that was unfortunate that the proposed discussions had not taken place sooner with consequent saving of court time and cost, HHJ Smith agreed, making these additional observations in relation to JC:
“I think she’ll know what she wants to do within half an hour. She’s had months and months to think about it. Of course, if she wants a trial, that’s not a difficulty, we’ll be ready to go tomorrow morning.”
[22]The following morning, HS and JC entered guilty pleas to an amended indictment and discussions moved on to sentencing. Both defendants were bailed to subsequent sentencing hearings. The transcript of the proceedings on 24 June indicates that the hearing took less than 45 minutes.

Conclusions

[23]Whilst I very much appreciate the efforts of Mr Arnold, for the Appellants, and Ms Weisman, for the Lord Chancellor, in drawing my attention to Costs Judge decisions which they think might be pertinent, I do not find it necessary to refer to any decisions other than those I have already mentioned.[24]Submissions on appeals of this nature tend (understandably) to refer to the facts of cases said to be comparable, and the reasoning of the Costs Judges who decided, on the facts of those particular cases, whether a trial had or had not started.[25]Such comparisons should, I think, be treated with circumspection. A Cost Judge, on appeals of this nature, has to refer back to the guidance in Lord Chancellor v. Henery and, bearing that guidance in mind, decide whether in that particular case it is right to conclude that a trial had started.[26]This is an essentially factual conclusion, based upon the necessarily broad guidance given by Spencer J. It would, I think, be a mistake to fish among Costs Judges’ decisions in an attempt to assemble a definitive list of factors that could be assumed to justify a conclusion one way or the other.[27]In this particular case, stepping back and looking at the facts, it seems to me clear that a trial had not started on either 23 or 24 June 2025. I say that for these reasons.[28]I start with the very clear indications given by HHJ Smith, during and toward the end of the proceedings 23 June 2025, that a trial had not yet started. The point of that was to make it clear that JC (who appeared to be about to go to trial on a flimsy defence) still had the opportunity to obtain a sentencing discount consistent with entering a guilty plea before trial started.[29]That opportunity was taken. The following day an amended indictment was filed, guilty pleas were entered and (on the available evidence) JC preserved her right to a sentencing discount consistent with a pre-trial guilty plea.[30]Whilst I am not bound by the observations of HHJ Smith, in accordance with the guidance given in Lord Chancellor v. Henery they carry considerable weight. It is in any event difficult to see how it could be right for me to conclude, for the purposes of remunerating the defendants’ solicitors, that a trial had started when JC had been sentenced on the basis that it had not.[31]Mr Arnold has done as much as one could reasonably expect to bolster what seems to me to be an inherently weak case. He points to the discussions between Mr Singh and HHJ Smith concerning the prospective bad conduct application against HS, and its likely (or at least possible) effect upon HS’s attitude to a plea. He submits that this justifies the conclusion that the court, with the assistance of cooperative counsel for the parties, undertook matters of substantial case management that ultimately led to guilty pleas and the saving in time costs.[32]I am unable to accept this line of argument. The bad character application never got off the ground, superseded as it appears to have been by guilty pleas by both defendants to an amended indictment. The court dealt only with typical housekeeping matters.[33]The question of whether the court undertook substantial matters of case management does not turn on the fact that HS decided to enter a plea of guilty when he saw the writing on the wall. The sort of negotiation that appears to have taken place between prosecution and counsel over (given counsel’s limited availability) a relatively short period between 23 and 24 June 2025 is quite typical of a cracked trial.[34]Mr Arnold says that efforts by counsel to cooperate and negotiate, so saving court time and cost, should be recognised, rather than penalised by missing out on a full trial fee.[35]It is however the duty of an advocate to advise a lay client upon all pertinent matters so that the client can make a fully informed decision upon whether or not to enter a plea of guilty or opt for a trial. If there is then a trial, a trial fee will be payable. If not, it will not. That is how the 2013 Regulations work, and it is not for me to rewrite them.[36]Nor can it be appropriate to rely upon precisely the sort of the negotiations between prosecution and defence that frequently lead to a trial being avoided, as justifying the conclusion that a trial had in fact started.[37]Further, HHJ Smith made it clear his view that both defendants could have made their minds up on a plea long before the case came before him, so avoiding substantial unnecessary court time and cost. The appropriate element of cooperation, at least until the last minute, seems to have been lacking.[38]My conclusion, in summary, is that this was a paradigm example of a case in which (per Lord Chancellor v. Henery) “even if the jury has been sworn… there has been no trial in a meaningful sense… because before the case can be opened the defendant pleads guilty”.[39]These appeals must, accordingly, be dismissed.