R v Burke [2026] EWHC 772 (SCCO)

[2026] EWHC 772 (SCCO)Case No 43SP0001425SCCO Reference: SC-2025-CRI-000107
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 30 March 2026
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvBURKEJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Andrew Selby KC (Counsel)The appeal has been dismissed for the reasons set out below.COSTS JUDGE LEONARD
Between
BurkeDefendantRCrown
[1]This appeal from the Legal Aid Agency (“LAA”)’s Determining Officer concerns the trial fee payable to the Appellant. The fee is calculated in accordance with the provisions of the Advocates Graduated fee Scheme (AGFS) at Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 (“the 2013 Regulations”), as in effect at the date of the relevant Representation Order, 7 January 2025.[2]The appeal extends to the refusal by the Determining Officer to allow a travel and subsistence claim made by the Appellant, but I cannot hear that part of the Appeal, because the Appeal provisions of the 2013 Regulations to not extend to that.[3]Regulations 28 and 29 of the 3013 Regulations make provision for redetermination of claims and, following redetermination, appeals to a Costs Judge. The relevant provisions of regulation 28, for the purposes of this appeal, are as follows: “(1) Where… a trial advocate in proceedings in the Crown Court is dissatisfied with… the calculation by the appropriate officer of the fee payable to the trial advocate in accordance with Schedule 1… the advocate… may apply to the appropriate officer to redetermine those fees, to review that decision or to reclassify the offence, as appropriate… (7) The appropriate officer must, in the light of the objections made by the applicant or on behalf of the applicant— (a) redetermine the fees, whether by way of confirmation, or increase or decrease in the amount previously determined… (8) Where the applicant so requests, the appropriate officer must give reasons in writing for the appropriate officer's decision.[4]The relevant provisions of regulation 29 are:
“(1) Where the appropriate officer has given his reasons for his decision under regulation 28(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.”
[5]It is not necessary to reproduce the full text of regulations 28 and 29 for present purposes. The point is that regulation 28 provides for the redetermination and written reasons process to be open to an advocate only in respect of specified categories of claim, including the trial fee that is the subject of this appeal. Those categories do not extend to claims for disbursements.[6]By virtue of regulation 29(1), I can only entertain an appeal following the delivery of written reasons under regulation 28(8). It follows that I can only hear an appeal on the categories of claim to which regulation 28 actually applies. As those categories do not extend to claims for disbursements, I have no jurisdiction to hear an appeal in respect of travel and subsistence.[7]I turn to the appeal in respect of the Appellant’s trial fee, which is calculated by reference to the following provisions of Schedule 1.[8]Paragraphs 1(7) and 1(8) of Schedule 1 read:
“A reference in this Schedule to a "band" is to the band of the offence concerned set out in Table B in the AGFS Banding Document, as read in conjunction with Table A in that document… Where the band within which an offence described in Table B in the AGFS Banding Document falls depends on the facts of the case, the band within which the offence falls is to be determined by reference to Table A in that document.”
[9]Sub-paragraph 3(1) of Schedule 1 reads:
“(a) every indictable offence falls within the band of that offence set out in the AGFS Banding Document… (b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977 (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981 (attempting to commit an offence) fall within the same band as the substantive offence to which they relate..”
[10]The AGFS Banding Document to which these provisions refer categorises offences according to their nature and seriousness. The offence banding is taken into account when a trial fee is calculated, in the following way.[11]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—

[12]Table A, Category 1 of the AGFS Banding Document sets out the way in which cases of murder are to be classified for payment purposes:
“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 1.3: All other cases of murder…”[13]Table A, Category 3 covers offences of serious violence:
“Band 3.1: Attempted murder of a child, two or more persons, police officer, nursing/medical contact or any violent offence committed with a live firearm. Band 3.2: All other attempted murder…”
Band 3.2: All other attempted murder…”[14]There is at first sight an inconsistency between the specific banding (3.2) provided in the AGFS Banding Document for offences of attempted murder and the provisions of paragraph 3(1) of Schedule 1, which provides that an offence of conspiracy falls within the same band as the substantive offence to which the conspiracy related. That would put an offence of attempted murder in one of bands 1.1 to 1.3.[15]This was explained by Mr Justice Chowdhury at paragraph 25 of his judgment in Simon Csoka KC v The Lord Chancellor [2023] EWHC 54 (KB):
“… given the comprehensive nature of the Banding Document, which is intended to relate to “every indictable offence”, it is reasonable to construe paragraph 3(1)(b) as to the banding of inchoate offences as being intended to apply only insofar as no other specific provision has been made for a particular inchoate offence in the Banding Document. That reading of the provisions is consistent with the principle of statutory interpretation that the provisions of the relevant instrument (including those incorporated by reference) are to be construed as a whole and, if possible, in a way which renders consistent its various provisions (see Lord Chancellor v Woodhall [2013] EWHC 764 at [14]).”
[16]An offence of attempted murder, accordingly, falls unequivocally within bands 3.1 or 3.2.

Background

[17]The Appellant represented Tristan Burke (“the Defendant”) in proceedings before the Crown Court at Oxford. The Defendant faced trial on a five-count indictment alongside two co-defendants, Federico Dadu and Tanatswa Kuzanga. The indictment concerned a knife attack on one Ben Matthews on 26 December 2024, in which he had sustained serious stabbing injuries.[18]The Defendant and Dadu were alleged to have carried out the attack, with the Defendant wielding the knife. Kuzanga was alleged to have conspired with the Defendant and Dadu to carry out the attack, but it was not alleged that he had been physically present when the attack took place.[19]Count 1, against the Defendant and Dadu, was of attempted murder. Count 2, against the Defendant only, was of possession of a knife. Count 3, against the Defendant and Dadu, was of wounding with intent. Counts 4 and 5, against Kuzanga only, were of conspiracy to murder and conspiracy to cause Grievous Bodily Harm. The wording of those counts was as follows:
“TANATSWA KUZANGA on the 29th day of December 2024 conspired together with Tristan Burke and Federico Dadu to murder Ben Matthews…. TANATSWA KUZANGA on the 29th day of December 2024 conspired together with Tristan Burke and Federico Dadu to cause grievous bodily harm with intent to Ben Matthews.”
[20]At trial, the Prosecution’s opening note made it clear that Kuzanga alone was charged with conspiring with the Defendant and Dadu to kill Ben Matthews because although all three defendants had conspired to murder Ben Matthews, Kuzanga was not at the scene of the actual attack.

The Issue on this Appeal

[21]In accordance with sub-paragraph 3(1) of Schedule 1, conspiracy to murder (as opposed to attempted murder) falls into the same band as murder. The Appellant argues that the Defendant should be treated as having been charged with conspiracy to murder because count 4 on the indictment expressly alleged that Kuzanga conspired “together with Tristan Burke and Federico Dadu” to murder Ben Matthews.[22]On that basis, and because the Defendant had a previous conviction for murder, the Appellant submitted a claim for payment on the basis that Band 1.2 applies. The Determining Officer found that band 3.2 applies, because the Defendant was not charged with conspiracy to murder but with attempted murder.[23]The Appellant contends that this is an unduly formalistic approach, choosing form over substance, which fails to reflect the substance and complexity of the case and ignoring the fact that the indictment specified that the Defendant had been part of a conspiracy to murder.[24]The Crown Court, on 16 April 2025, varied the representation order to include a KC and junior on the ground that “circumstances make the proceedings unusually grave or difficult,” recognising the substantive gravity and complexity beyond a typical attempted murder categorisation.[25]The Defence team necessarily met the legal and evidential burdens of a case advanced as a conspiracy to murder involving the Defendant as a conspirator, including analysis of the agreement, the joint enterprise framework and the inferences on participation. The jury directions section of the legal directions bundle confirmed the elements of conspiracy and the Prosecution relied on inference and circumstantial evidence to prove agreement, all of which framed the live forensic issues the defence had to address.[26]The Prosecution’s opening note and case narrative show substantial case complexity. The trial featured multi-handed allegations, hearsay issues, a bad character application against the Defendant and the need to confront a premeditated joint attack theory with overlapping attempted murder and conspiracy allegations. These features increased the preparation and entailed trial complexity typical of Band 1 homicide/conspiracy cases.[27]The Defence had to confront the agreement element, inferential proof, multiplicity of actors and roles, extensive digital, CCTV and cell site evidence and hearsay issues that elevated the case above an ordinary attempt. These features required KC leadership and are consistent with Band 1.2 complexity.[28]The Crown’s case was that Defendant was the principal stabber within a planned joint enterprise. This meant the defence case work was directed to the same core questions as a conspiracy to murder indictment against him would have raised. The charging choice, says the Appellant, should not dictate remuneration where the indictment particulars and the Crown’s formal opening placed the Defendant within the conspiracy alleged.

Conclusions

[29]I do not doubt for a moment the Appellant’s account of the burden put on the Defence team in this particular case, and I entirely accept that there was no real distinction to be drawn between the work the Appellant had to undertake in this case and the work he would have had to undertake had the Defendant been tried for conspiracy to murder.[30]None of this, however, assists the Appeal. The 2013 Regulations require, at Schedule 1 paragraph 4, that the trial fee payable to the Appellant is calculated by reference to the band of the offence for which the assisted person is tried. The word is “tried” (not “charged”), and the meaning of paragraph 4 is clear and unequivocal.[31]The Defendant was named on the indictment as a conspirator for the purposes of two counts of conspiracy against Kuzanga. He was however not himself tried for conspiracy to murder. He was tried for attempted murder. The Appellant’s trial fee stands to be calculated accordingly. Paragraph 4 of Schedule 1 does not allow for anything else.[32]It was not open to the Determining Officer, nor is it open to me, to calculate the fee due to the Appellant on the basis that the burden on the Appellant was the same as if the Defendant had been tried for conspiracy to murder. The discretion which the Appellant asks this court to exercise does not exist.[33]Chowdhury J, in Simon Csoka KC v The Lord Chancellor, at paragraphs 32-34 of his judgment, explained the workings of the 2013 Regulations, and the AGFS banding scheme in particular: “32… Any scheme for remuneration based on determinative bands is likely to result in at least some anomalous outcomes, some of which might be more or less favourable to the Advocate than the strict application of logic might suggest. That is the price that must be paid for a comprehensive scheme that can be applied by Determining Officers quickly and easily. As Leggatt J (as he then was) stated in Lord Chancellor v Woodhall [2013] EWHC 764 in dealing with an apparently unfair remuneration outcome under an earlier scheme: ‘18. I am sorry to have reached that conclusion, as my understanding is that Mr Woodhall had to undertake a substantial amount of work in preparing for trial in this case, for which the fee for a guilty plea may be sparse remuneration. However, as Mr Woodhall pointed out in his submissions, the principle on which the scheme is based is not one of providing fair remuneration by reference to the amount of work done, but is a rule-based system. In words that he quoted from the case of R v Grigoropolou [2012] 5 Costs LR 982 , and as the judge observed in that case, “there is no equity in a scheme which would permit the court to put right perceived injustices, because its modus operandi is one of roundabouts and swings’.33. Costs Judge James considered that case and said as follows: ‘51. It is in the nature of the AGFS that it will produce anomalies; there is inevitably a ‘price’ to be paid for the certainty that comes with such a scheme and that includes the possibility of cases which will attract a lower fee than a less serious and onerous case. Atkinson and Khan, where the Appellant will receive less money because one victim in each case died, than he would if both had survived, are prime examples of this phenomenon but, as Leggatt J put it these are swings and roundabouts and part of the way that the AGFS operates.’34. I agree.” ‘18. I am sorry to have reached that conclusion, as my understanding is that Mr Woodhall had to undertake a substantial amount of work in preparing for trial in this case, for which the fee for a guilty plea may be sparse remuneration. However, as Mr Woodhall pointed out in his submissions, the principle on which the scheme is based is not one of providing fair remuneration by reference to the amount of work done, but is a rule-based system. In words that he quoted from the case of R v Grigoropolou [2012] 5 Costs LR 982 , and as the judge observed in that case, “there is no equity in a scheme which would permit the court to put right perceived injustices, because its modus operandi is one of roundabouts and swings’. ‘51. It is in the nature of the AGFS that it will produce anomalies; there is inevitably a ‘price’ to be paid for the certainty that comes with such a scheme and that includes the possibility of cases which will attract a lower fee than a less serious and onerous case. Atkinson and Khan, where the Appellant will receive less money because one victim in each case died, than he would if both had survived, are prime examples of this phenomenon but, as Leggatt J put it these are swings and roundabouts and part of the way that the AGFS operates.’[34]That is very much to the point here. Whilst I sympathise with the Appellant’s view that he has not ben paid in accordance with the weight and complexity of the case, for the reasons I have given this appeal cannot succeed and must be dismissed.