R v Jamal Miah

Senior Costs Judge Rowley:

1. This is the appeal of Harwood solicitors against the decision of the determining officer to calculate the litigator graduated fees on the basis of a cracked trial rather than a trial fee as set out in the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. The solicitors were instructed on behalf of Jamal Miah, who was charged with a one count indictment regarding a conspiracy to commit 13 burglaries between September and December 2023.

3. I have been provided with a transcript of the hearing on 11 June 2024 which has proved to be very helpful. It shows that the defendant’s counsel asked the trial judge to deal with the prosecution’s application to admit evidence as to the defendant’s bad character prior to the swearing in of the jury rather than after the prosecution’s case had concluded, which counsel submitted would normally be the case. The trial judge suggested this was “very sensible.”

4. The prosecution then sought to admit evidence of six previous convictions for burglary against the defendant. The Mr Miah’s counsel sought to object to that evidence going before the jury given its prejudicial effect. The judge ruled that the previous convictions regarding burglary should go before the jury, and that with careful directions as to the extent of the relevance of them there would not be any inappropriate prejudice to the defendant.

5. There was also a discussion regarding the extent of disclosure provided by the prosecution. This appears to relate to 1 of the 13 alleged burglaries and for which there was no corroborative CCTV evidence. The judge clearly did not think that there was a particular difficulty with the evidence and indicated that he did not think a lack of proof of one particular of the alleged offence would affect the prospects of the offence being proved.

6. Having given his ruling on the bad character application, the judge adjourned for the defendant to consider matters with his legal team and this led to him being rearraigned and pleading guilty subject to a basis of plea which was still being worked out at the time of the re-arraignment. Mr Miah was subsequently sentenced, along with his co-defendant, who had previously pleaded guilty to the burglaries.

7. Perhaps with an eye to the categorisation of this case within the prosecution fee scheme, the Crown’s counsel raised the question of whether the trial had started with the trial judge. Their exchange is as follows: “Judge Jeffries: Right, anything else I need to do today?” Mr Hudson: Your Honour dealt with the bad character application. I know that formally day one of trial wasn’t ordered, but I don’t know whether Your Honour will be willing to – Judge Jeffries: Well, we’ve not had a trial. Mr Hudson: No, but the bad character might be of substantial case management, but I’m in Your Honour’s hands. Judge Jeffries: Well, it is but we’ve not had a trial. Mr Hudson: No. Judge Jeffries: Can’t declare day one of the trial for a case that there has not been a trial. Good try, but no. I can’t do it. It defies logic, I’m afraid.”

8. This entirely understandable view of when a trial begins by the trial judge, was reviewed comprehensively by Spencer J in the case of the Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) in order to establish whether the trial had commenced.

9. Having analysed the decisions of various costs judges and High Court Judges in this area, Spencer J concluded that the key issue was whether the trial had commenced in a meaningful sense. He summarised the relevant principles at paragraph 96 of his judgment in the following terms: “(1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun. (2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so, even if the trial comes to an end very soon afterwards, through a change of plea by a Defendant, or a decision by the prosecution not to continue (R v Maynard, R v Karra). (3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes (Meek and Taylor v Secretary of State for Constitutional Affairs). (4) The trial will not have begun, even if the jury has been sworn (and whether or not the Defendant has been put in charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened, the Defendant pleads guilty (R v Brook, R v Baker & Fowler, R v Sanghera, The Lord Chancellor v Ian Henery Solicitors Ltd (the present appeal)). (5) A trial will have begun even if no jury has been sworn if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case and the leading of evidence (R v Dean-Smith, R v Bullingham, R v Wembo). (6) If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management, it may well be that the trial has begun in a meaningful sense. (7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purposes of the Graduated Fee Schemes. It would often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense. (8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so, when it began, the Judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the Determining Officer, as Mitting J did in R v Dean Smith, in the light of the relevant principles explained in this judgment”.

10. It can be seen that, in accordance with paragraph (8) of the guidance, the trial judge’s view on whether the trial had commenced has been sought. The Judge’s comment in this case is redolent of the traditional view that a trial cannot possibly begin until the jury has been sworn, et cetera. In relation to the running of Crown Courts, that is, no doubt, an entirely understandable description. However, for the purposes of the 2013 Regulations, the situation is more nuanced.

11. As set out at paragraph (6) of Spencer J’s guidance, if the court has been dealing with substantial matters of case management “it may well be that the trial has begun in a meaningful sense” which is sufficient to justify the litigator or advocate’s fee to be calculated on the basis of a trial having occurred, rather than a cracked trial.

12. The determining officer has relied upon the trial judge’s comment to some extent in his written reasons. He paraphrases the exchange set out above, albeit I suspect that his note was taken from the Digital Case System rather than the transcript.

13. The determining officer’s main conclusions are set out in the following passage: “The court log shows no evidence of anything that would indicate that a trial began in [a] meaningful sense. A jury were sworn in. There appears to be case management issues dealt with, but the question to be determined is whether or not they were so substantial as to indicate that the trial had started in a meaningful way. The determining officer does not consider that they were. At the hearing on 11/06/2024 a bad character application appears to have been dealt with however, this should be considered as a pre-trial application, which would therefore be deemed an ordinary matter of case management and not something out of the ordinary. In addition, discussions surrounding disclosure of evidence would also be considered to be matters that would be dealt with pre-trial. As a result, we would not view this to meet the criteria of substantial case management having taken place.”

14. Although Ms Ahmed, the defendant’s counsel from the Crown Court appeared on behalf of Harwood solicitors at the appeal hearing of this case, the Legal Aid Agency were content to rely upon the written reasons of the determining officer. That is not an unusual approach where the position is set out clearly and there is only a certain amount that can be added to by oral representations on behalf of the LAA. Unfortunately, in this case, it has meant that the LAA have not had the opportunity to deal directly with the transcript of the hearing, which was provided by the appellant solicitors shortly before the hearing took place.

15. I mean no criticism of anybody’s conduct in this respect, but it does result in the statement of the defendant’s counsel that the bad character application would normally be dealt with in the middle of the trial plainly jarring with the determining officer’s view that it is a pre-trial application. It seems to me that I should generally prefer the statement of counsel in court to the determining officer’s view of practice. But if that is not an appropriate starting point, it seems to me that the trial judge’s response – that it was a sensible approach in this case – supports counsel’s statement about when a bad character application would usually be made. As such, I do not accept that the determining officer’s characterisation of that application as being a pre-trial application nor the conclusion that, as such, it was not capable of being substantial case management, such that the trial had effectively begun.

16. I do accept that agreeing facts and some of the disclosure points are, perhaps regrettably, matters which should be treated as “ordinary” case management dealt with on the day of the trial, even though in theory, they ought to have been dealt with earlier. But I do not think that the application regarding bad character falls into a description of ordinary case management. There is a separate section (section 21) in the criminal procedure rules specifically relating to such applications and they are required to be determined by the judge with the ruling being given in court, albeit not in front of the jury, for obvious reasons.

17. There is some suggestion in the transcript that, although the judge had hinted at the bleak prospects of a successful defence to the defendant on the day before, this had not persuaded the defendant to plead guilty and it was the hearing of the bad character application and the consequential effect of the reference to the other burglaries which persuaded the defendant to change his mind. It is easy to envisage the defendant changing his plea partway through a trial if the application had been made at that point. It seems to me to be an equally substantial application if, as here, it was taken prior to the jury being sworn in.

18. Consequently, I conclude that there were substantial matters of case management dealt with in this case prior to the re-arraignment and, as such, the graduated fee should be calculated on the basis of a trial fee rather than a cracked trial fee.

19. As such, this appeal succeeds and the solicitors are entitled to costs in respect of the appeal as well.