R v Jack Briggs

Introduction

1. This appeal was heard remotely. Mr Vout KC, the Appellant, represented himself. The Respondent was unrepresented, having given prior confirmation of their intention to rely on the written reasons dated 13 March 2025. A prior request from the Respondent to adjourn the hearing was refused, reasons for which were given. A post-hearing request to submit further written submissions was also refused, again with reasons given. Background and Appeal

2. The Defendant, Jack Briggs, was one of a number of defendants charged with manslaughter and violent disorder. A further defendant, Brandon Thompson, was charged with murder. All charges arose from a large disturbance in March 2023, during which a young Polish man named Kamil Milczarczyk was stabbed and killed.

3. Mr Briggs’ defence was that he did not participate in any unlawful violence towards the deceased, and that friends of the deceased had been aggressive towards to the Defendant and in fact attacked him.

4. A trial followed between 2 January and 12 February 2024 involving eight defendants (the crown having accepted pleas to lesser offences from others who had been involved in the violence). The Appellant took no part in that trial.

5. That trial ended when the trial judge took the decision to discharge the jury (who were then in retirement) having formed the view that he had misdirected the jury, and that the situation was incapable of remedy.

6. A second trial proceeded from 16 September to 7 November 2024. The Appellant was instructed to represent the Defendant because the original counsel was not available for those dates.

7. In preparation for the second trial, the Appellant found that transcripts of the key parts of the earlier trial had been prepared, disclosed and placed in section Y of the DCS.

8. Whilst the transcripts were not relied on as used material by the crown, the Appellant reviewed and considered the transcripts in preparation for the commencement of the second trial.

9. This appeal concerns an “AGFS Unused Preparation in Excess of 3 hours” claim which was originally for 55 hours but as of today stands at 48 hours (which also accounts for the standard 3 hour deduction).

10. The amount awarded is 1 hour 18 minutes (net of the standard 3 hour deduction) and that award is the subject matter of this appeal. All of the time claimed relates to paper documents in the form of the transcription of the first trial. Legislation and guidance

11. Paragraph 17A, Schedule 1 of the Remuneration Regulations sets out the circumstances in which the consideration of unused material may be claimed: “Fees for consideration of unused material 17A. —(1) This paragraph applies in respect of any case on indictment in the Crown Court, in respect of which a graduated fee is payable under Part 2 or Part 3, other than a guilty plea. (2) In any case to which this paragraph applies, a fee (“the basic consideration fee”) is payable to a trial advocate in respect of the consideration of unused material which corresponds to the category of the advocate concerned specified in the table following this sub-paragraph, whether or not such consideration has actually occurred. (3) This sub-paragraph applies where— (a) a trial advocate has undertaken the consideration of unused material; and (b) the advocate has spent in excess of three hours undertaking that consideration. (4) In a case where sub-paragraph (3) applies— (a) a fee (“the additional fee”) is payable to the trial advocate in addition to the basic consideration fee; and (b)the amount of the additional fee corresponds to the category of the advocate concerned specified in the table following paragraph 24. (5) The additional fee is payable only where the appropriate officer considers it reasonable to make such a payment. (6) A trial advocate claiming the additional fee must supply such information and documents as may be required by the appropriate officer in support of the claim. (7) In determining whether it is reasonable to pay the additional fee, the appropriate officer must take into account— (a) the reasonableness of the hours claimed in respect of the case taken as a whole; and (b) the reasonableness of the hours claimed in respect of the consideration of the unused material.”

12. The Crown Court Fee Guidance, Appendix E - Unused Material, provides:

1. Unused material is material that forms part of a criminal investigation but is not used by the prosecution for the purpose of criminal proceedings. Unused material may be disclosed voluntarily by the prosecution or in response to specific requests for disclosure by the defence following the serving of a defence case statement.

2. Unused material is defined in the Remuneration Regulations as “material disclosed pursuant to the prosecutors’ obligations in Part 1 of the Criminal Procedure and Investigations Act 1996 ”. The LAA can only pay for reasonable time spent considering that material.” Submissions

13. The Respondent’s written reasons have been taken into account, and are partially reproduced below: “ Case Managers Representations In my redetermination letter I did advise the fee earner I do note they were not the original Trial advocate for Trial 1 and do have a duty to assess all the material in relation to this case, but this work is renumerated within the graduated fee. The retrial fee did not receive a deduction due to counsel being a new instructed advocate. With the graduated fee not receiving a reduction as a retrial due to a new advocate this remunerates the excess work required such as reading all of the material. I provided relevant Crown court fee guidance and indexes detailing material which falls into PPE and Unused material. I also noted the Unused material is detailed in the list individually as its own section and is served on DCS under UND1/UND2. All material that does not form part of the pages of prosecution evidence does not automatically form part of the unused material. If this was the case all material within the DCS in all sections would form part of the Unused material and this is not common practice. Material not forming part of the PPE does not automatically form part of the Unused material. The material in section Y (court Transcripts) do not form part of the PPE nor part of the unused material. The consideration of such material is paid within the graduated fee payment as a new trial advocate. Counsel did not provide a schedule of unused material, Disclosure Management Document (DMD) or other documentation evidencing disclosure of unused material. They provided an AU1 form and a work log. The work shown on the work log which was eligible for payment as part of the material disclosed as unused was available on DCS. The material claimed on the work log from the Unused Material stood at a total of 151 pages. After gaining access to DCS I was able to verify UND2-0002- D441 – 79 pages and UND2 -0001- D4 50 pages. I had been unable to verify UND2-0003- D259 – at 22 pages therefore the total pages payable under the Unused over 3 hours scheme stands at 129. I considered 2 minutes per page reasonable considering the nature of the documents which stood at 258 minutes. Removal of the standard first 3 hours this leaves this payable as 1 hour 18 minutes. Counsel did not dispute this assessment and only appealed for the consideration of the court transcripts as part of unused material. Please note that you have been paid £58,587.44 for this case. A breakdown of fees is attached. Advocate Fee - £58,278.00 Unused Materials (Up to 3 Hrs) - £154.72 Unused Materials (Over 3 Hrs) - £154.72” Mr Vout KC’s oral submissions

14. Mr Vout advised that at the end of the first trial, both counsel agreed that a transcript would be both necessary and disclosable for use at the second trial. The court agreed and a transcript of the first trial was produced (at public expense).

15. From Mr Vout’s perspective, evidence given at the first trial was beneficial to the Defendant and when it became clear that some of those present at the first trial would not be present at the second trial, the importance of obtaining a transcript was significantly enhanced.

16. Mr Vout submits there can be no dispute that the transcript of the first trial had to be considered in circumstances where he was not the advocate at that trial, and the original advocate could not represent the Defendant at the second trial.

17. Mr Vout rejects the Respondent's general assertion that that simply because he was paid an undiscounted trial fee for the second trial that it follows consideration of the transcript of the first trial forms part of the trial fee he has already been paid.

18. Instead, Mr Vout avers that the real question is whether the transcript meets the definition of unused material under the regulations such that an additional claim may be submitted for the time spent considering the same.

19. Mr Vout submits that whilst the transcript of the first trial was capable of being counted as used evidence, it was treated as unused because it was not beneficial to the Crown. However, the Defendant wished to rely on the transcript because it aided his case, hence it had to be considered by Mr Vout.

20. Mr Vout confirmed he relied heavily on the transcript in parts to inform and direct his cross examination of various persons involved and linked to the altercation which led to the murder charge which followed.

21. Mr Vout referenced an extract of his cross examination of a Mr Lica at the second trial by way of example, in which multiple references were made to comments made at the first trial which Mr Vout simply would not have been aware of but for the transcript of the first trial, for example comments as to which group and/or person/s had instigated the violence. Analysis and Decision

22. There is no dispute that the Appellant was entitled to spend time in consideration of the transcripts of trial one (which so happened to be saved to section Y of the DCS). Further, given the circumstances in which the Appellant was engaged, there can be no doubt that it was reasonable to consider those transcripts.

23. Crown Court Fee Guidance, Appendix E (at paragraphs 1 and 2) defines “Unused material” (see above). Fees for the consideration of unused material is addressed under Paragraph 17A, Schedule 1 of the Remuneration Regulations (also see above).

24. Section 3(1) of the Criminal Procedure and Investigations Act 1996 , s.3(1) provides that “3.—(1) The prosecutor must…disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused…”

25. The Attorney-General’s guidelines on disclosure set out (Archbold para.84 (Appendix B-71)) the following factors to be included in a consideration of whether material satisfies the disclosure test: (a) the use that might be made of it in cross examination; (b) its capacity to support submissions that could lead to: (i) the exclusion of evidence; (ii) a stay of proceedings, where the material is required to allow a proper application to be made; (iii) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR; (c) its capacity to suggest an explanation or partial explanation of the accused’s actions; (d) its capacity to undermine the reliability or credibility of a prosecution witness; (e) the capacity of the material to have a bearing on scientific or medical evidence in the case."

26. At the first trial, evidence was heard from various witnesses which carried the potential to undermine the case for the prosecution against the Defendant. In fact, some of the witness evidence heard assisted the Defendant.

27. Evidence given under cross examination forms part of an investigation of the facts. The mere incidence that such evidence was given at trial does not exclude the information obtained as forming part of the investigation.

28. The material produced, in the form of transcripts, was not used by the prosecution because it did not assist their case. The material undermined the case for the prosecution against the Defendant because, in fact, it assisted him. The transcripts should have been disclosed.

29. An example referenced in the Appellant’s written submissions concerns the evidence of an Adam Lica, one of the deceased’s friends, at the first trial. Mr Lica had described himself as an “alpha male” and admitted that alongside others he approached the Defendant with the intention of fighting. The Appellant utilised that information to inform his cross examination of Mr Lica at the second trial, in order to demonstrate the aggression shown towards the Defendant.

30. I agree with the Appellant that the mere placement of the transcripts in section Y of the DCS does not determine the nature of the evidence. The transcripts of evidence given under cross examination cannot reasonably be characterised as court rulings. Their location on the DCS was a matter of convenience and access for the judge and advocates at the second trial.

31. I accept that the transcripts of the first trial were utilised extensively by the Appellant on behalf of the Defendant. I also agree that the fact no deduction was made from the retrial fee paid to the Appellant is not determinative of the discrete issue in this appeal.

32. In any event, I accept that the Appellant had significantly more material to prepare than the advocate at the first trial. I also agree that the Appellant would have been at risk of considerable exposure to a claim for professional negligence had the relevant transcripts not been considered fully and properly.

33. I am satisfied that in all the circumstances the Appellant should be remunerated for the consideration of the unused material, and that the Appellant has spent in excess of three hours undertaking that consideration. Pursuant to 17A(4) to Schedule 1 of the Remuneration Regulations, an “additional fee” is therefore payable.

34. Pursuant to 17A(7), I consider 40 hours to be reasonable for consideration of the unused material, net of the standard 3 hour deduction. Costs

35. The £100 appeal fee shall be repaid to the Appellant in addition to the additional remuneration consequent upon the outcome of this appeal. COSTS JUDGE NAGALINGAM