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Appeal Committee Ruling 2 of 2022 - R -v- [REDACTED]


Advocate Fee Appeals Committee




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-[READCTED] – [REDACTED] and relates to the laundering of money.

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 18 November 2021 was effective and can therefore be remunerated as an effective trial main hearing. 

4.    In summary, a jury was sworn, and the case opening began on Thursday 18th November.  Legal argument then followed on 19th November and the case opening continued.  Then, on Monday 22nd November, the defence barrister and solicitor for the defendant [REDACTED] declared themselves professionally embarrassed and the jury was discharged. The discharge of the jury occurred prior to evidence being called or read by the prosecution.


5.    The Committee convened on 9th 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 8th August 2022

Counsel’s position

6.    Counsel submits that an effective trial fee for 18th, 19th and 22nd November 2021 should be paid on the basis that: 

a)    the trial had started by virtue of the CTL stopping and the case opening having commenced 
b)    the CPS MoG states, at paragraph 123, that once a jury is sworn this will generally be considered day 1 of the trial, and to do otherwise would be manifestly unfair 
c)    defence counsel will be paid under the AGFS regulations 
d)    Once a jury is sworn prosecution counsel is committed and unable to accept other work or return the case
e)    Prosecution counsel has in the past been paid an effective trial fee in similar circumstances 

Counsel accept that evidence was neither called nor read to the jury prior to the discharge of 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 123 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 123 does not apply.   

9.    In respect of the application of the fee scheme in previous, the CPS acknowledge that an error was made and have provided further training and advice has been provided to the relevant CPS fees team.  No action will be taken to retrieve the overpayment. 


10.    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 one did not occur in this case, that being: Evidence was not called or read before the jury after the conclusion of counsels opening note.  
d)    Counsel accept that evidence was not called or read to the jury prior to the jury being discharged. In those circumstances there cannot be an effective trial. 
e)    The definition of the start of a trial for CTL purposes is not the same as for the Fee Scheme. Indeed, it is irrelevant in a consideration of what amounts to an effective trial.
f)    Misapplication of the fee scheme in a previous case, as accepted by the CPS is not a relevant consideration and is not subject of this appeal.  

11.    Accordingly, the Committee dismissed the appeal.

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