Appeal Committee Ruling 3 of 2022 – R v [REDACTED]
Advocate Fee Appeals Committee
R-v- [REDACTED] (Operation [REDACTED])
Appeal of [REDACTED] and [REDACTED]
Introduction
1. The purpose of the Advocate Fee Appeals Committee (the Committee) is to resolve disputes by reference to published CPS fee schemes. The decision of the Committee is based solely on what it considers to be the correct interpretation of those fee schemes. The Committee does not have the remit to apply any discretion.
Issue in appeal
2. This case falls to be remunerated under the CPS Graduated Fee Scheme E (GFS). This case concerns the prosecution of R-v- [REDACTED] (Operation [REDACTED]) and relates to fraud.
3. The issue in this appeal rests on whether, correctly applying the relevant paragraph (121) of the Manual of Guidance (MoG), the trial listed on 3rd May 20XX was effective and can therefore be remunerated as an effective trial main hearing, with two daily fees paid for 4th May and 9th May.
4. In summary, the case was listed for trial Tuesday 3rd May, where defence counsel withdrew from the case on the grounds they had become professionally embarrassed, the jury had not been sworn, the case was adjourned until 4th May for the defence solicitors to engage new defence counsel, when they indicated new counsel wasn’t available until 9th May, the case was adjourned, it then became apparent that the defence counsel were unable to take the case on the basis of “the no returns” policy, so therefore the judge adjourned the trial until January 2023.
Documentation
5. The Committee convened on 27th September 2022 to determine this appeal and considered the following documents before arriving at their decision:
- GFS Manual of Guidance scheme E
- Taxation notes from Counsel
- Final CPS written reasons 10th August 2022
Counsel’s position
6. Counsel submits that an effective trial fee for 3rd, 4th and 9th May 2022 should be paid on the basis that:
a) the Learned Judge certified that 3rd May was the first day of trial and that the 4th and 9th were continuation trial days (refreshers)
b) it is wholly unreasonable to reduce counsel’s fees to fixed fees in consequence of the operation by the defence of the no returns policy
c) defence counsel will be paid a trial under the AGFS regulations
Counsel accept that the jury were not sworn, and that evidence was neither called nor read to the jury.
CPS position
7. The CPS position is that, correctly applying the paragraph 121, the circumstances described at paragraph 4 above do not meet the definition of an effective trial and fixed fees should therefore be paid for the relevant period. Paragraph 121 of the Manual of Guidance reads as follows:
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.
8. The CPS submit that paragraph 122 relates to court days to be included within the effective trial main hearing fee, once confirmed as such. Given that the criteria for an effective trial was not met in this case, paragraph 122 does not apply.
The definition of a trial includes 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:
a) the case was listed 'for trial’
b) 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
c) it led to a jury being sworn and evidence called, with the same advocate, within 7 calendar days, and
d) details of the meaningful progress are recorded on the Hearing Record Sheet.
9. In this case the jury was not sworn and evidence was not within 7 calendar days.
10. The Cost Judge is an appeal mechanism for defence advocates. Judgements from the Costs Judge have no bearing or influence on the prosecution Graduated Fees scheme.
Ruling
11. Having considered the matter carefully, the Committee concluded that:
a) Advocates, who choose to take instructions from the Crown Prosecution Service, accept the terms of the fee schemes applicable to that work and will be remunerated in accordance with the published fee schemes.
b) This case falls to be remunerated in accordance with the CPS Graduated Fee Scheme E
c) For the purposes of the CPS fee scheme, the definition of an “effective trial” has two core components and both did not occur in this case, that being: Jury was not sworn, and evidence was not called or read before the jury after the conclusion of counsels opening note.
d) Counsel accept that the jury was not sworn, and evidence was not called or read to the jury. In those circumstances there cannot be an effective trial.
e) Defence counsel are paid pursuant to a different scheme and taxing decisions made under that scheme have no bearing on the application of the CPS Graduated Fees Scheme.
f) Judicial determinations as to the “start of a trial” do have a bearing on decisions under the defence scheme, but such determinations do not have any bearing on the application of the CPS Graduated fees Scheme.
12. Accordingly, the Committee dismissed the appeal.