Appeal Committee Ruling 1 of 2023 – R v [REDACTED]

Advocate Fee Appeals Committee
R-v- [REDACTED]
Appeal of [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] and relates to an offence of Intentional Strangulation, contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015.

3. The issue in this appeal concerns the appropriate offence class for this offence.

4. In summary, the offence does not feature on the Offence Code list, Annexes 1 and 2 of the Manual of Guidance, and falls to be paid under offence class H unless a more appropriate offence code is relevant. The appeal is in relation to a dispute between the CPS and the prosecuting advocate concerning the appropriate offence code.

Documentation

5. The Committee convened on 20th July 2023 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

Counsel’s position

6. Counsel submitted that the offence should be remunerated as an offence category B offence. In support of the application counsel stated that in instances where there is clear evidence of a strangulation offence prosecutors should charge an offence of non-fatal strangulation rather than ABH, which indicates that strangulation is more serious than ABH, an offence remunerated under the scheme as Offence class C.

7. Counsel also submitted that in the Legal Aid Agency Advocate’s Graduated fee scheme the offence is coded in Band 3.3 (equivalent to s18 GBH, which in the CPS scheme is a category B offence).

8. Counsel further submitted that where the evidence shows a distinct single offence of non-fatal strangulation or non-fatal suffocation, with no other offending but the injuries amount to a GBH, where a suspect can be properly charged under s18 of the Offences Against the Person Act 1861, that offence should be preferred rather than non-fatal strangulation as it carries a higher sentence and therefore the charge is more serious than ABH.

CPS position

9. The CPS maintained that the offence should properly be remunerated as offence class C. The offence carries a maximum sentence of 5 years’ imprisonment which is the same as ABH and s20 wounding, which are both class C offences, and therefore the offence is more similar in nature to those offences than offences such as s18 GBH with intent that are in offence class B.

10. The CPS also stated that the more serious offence of Attempting to choke, suffocate, strangle etc, Offences against the Person Act 1861 is a class B offence.

Ruling

10. Having considered the matter carefully, the Committee concluded that: 

a) Counsel submitted it was “wholly wrong” to treat the strangulation offence as in any way comparable to ABH.  The Committee did not agree. Both ABH and strangulation are types of assault and both attract a maximum sentence of 5 years’ imprisonment.  Accordingly, it is appropriate to classify strangulation in the same category as ABH.  
b) The committee did not accept counsel’s submission that an offence maximum sentence is not relevant in assessing its seriousness.  While the maximum sentence is not the only factor to be considered, it is certainly one that is material to the issue of seriousness. 
c) The offence charged is punishable with 5 years’ imprisonment, which is in line with an offence of section 20 OAPA 1861 (a category C case). It is a direct comparator and it seems appropriate and fair that this offence should be paid at the same rate. 
d) To equate the offence with a section 18 OAPA 1861 offence is misconceived. If a section 18 offence was made out the committee would expect it to have been charged as such and/or for the advocate to have advised that the charge should be added. 
e) In relation to counsel’s point about differences between the classification of this offence between the CPS and LAA schemes the committee felt that while LAA classification decisions are relevant to the CPS scheme, they are not binding. The two schemes are separate and it is for each agency to decide (including through relevant appeal processes) how offences should be classified for the purposes of each scheme. However, the CPS fees team may wish to speak to the LAA to find out more about its decision, as it is preferable, if possible, for CPS and LAA to take the same approach to the categorisation of new offences given the similarity of their schemes on this issue. The committee does not wish to pre-judge the result of any discussion.

11. Accordingly, the Committee dismissed the appeal.