Appeal Committee Ruling 1 of 2020 - Operation A

GFS Appeals Committee

Operation [REDACTED]
R-v- [REDACTED]

Appeal of [REDACTED] and [REDACTED]

1. Introduction

The case of [REDACTED] was listed for trial in [REDACTED] at [REDACTED] Crown Court. The subject of the appeal is in relation to the case being paid as an effective trial in the “spirit” of both the regulations and the letter sent from the CPS CEO due to the unprecedented situation of Covid-19.

Prosecution advocates were: [REDACTED] and [REDACTED], Junior counsel.

Counsel appeal to the Appeal Committee on the following issue:-

The correct payment for proceedings that were listed for trial, but adjourned due to the Covid-19 pandemic before evidence was formally called.

The case was listed for trial and there were a number of days of legal arguments, the jury were sworn but due to the Covid-19 pandemic the case was adjourned before evidence was formally called before the jury. Counsel are requesting an effective trial be paid in the unusual circumstances of the adjournment.

The CPS relies on paragraphs 120 and 121 of the Scheme D Manual of Guidance which states:

120. An effective trial is defined as the jury having been sworn and evidence called or read. The calling of evidence is defined as a witness being called, a statement being read, or an admission being agreed and read after the conclusion of the counsel’s opening speech to the jury. A case will not be paid as an effective trial if evidence has not been called. Once these criteria have been met, the case will always be paid as an effective trial.

121. The definition of a trial has been expanded to include all days of the trial process, including days prior to swearing the jury. Days prior to the swearing the jury will be included as trial days provided:

1. the case was listed 'for trial’
2. the days resulted in meaningful progress, either in court or where the parties have been given time, or taken time, to undertake work out of court,
3. it led to a jury being sworn and evidence called, with the same advocate, within 7 calendar days, and
4. details of the meaningful progress are recorded on the Hearing Record Sheet.

The CPS contend that the case should be paid, as per the guidance published, namely legal argument fixed fees and stood out trial fees, and that discretion cannot be applied, notwithstanding the circumstances.

Although the CPS introduced a number of adjustments to their fees schemes to assist counsel during the period affected by the Covid-19 pandemic, as set out in Fees Bulletin 4 of 2020, changes to the requirements as to what is required for a trial to be remunerated as a main hearing is not one of those changes.      

The Fees Appeals Committee has considered the following documents before arriving at their decision:-

• GFS Manual of Guidance scheme D
• Taxation note 30 March 2020
• CPS Response 6 April 2020
• Further note of Appeal 14 April 2020
• Final written reasons
• Further note  of Appeal 21 April 2020
• Fees Bulletin 4 of 2020

2. Findings

The Committee considered the information advanced by counsel as well as all the other documentation listed above, including the Fees Bulletin 4 of 2020 and the relevant paragraphs of the GFS Manual of Guidance.

Although the committee has sympathy with counsel with regard to the unusual situation that occurred due to the pandemic, they were of the opinion that this outcome could have resulted under many other circumstances and where a the trial fee would also not be applicable.

The committee are content that paragraphs 120 and 121 of the Manual of Guidance have been applied correctly and that the essential criteria for an effective trial have not been met.

3. Ruling

For reasons outlined above the appeal is dismissed.

The Fees Appeal Committee convened to consider the appeal on 1st July 2020