R v Nelson
| Jurisdiction | England & Wales |
| Judge | Leonard |
| Judgment Date | 15 November 2022 |
| Neutral Citation | [2022] EWHC 2928 (SCCO) |
| Docket Number | Case No: 201203467 A1 |
| Court | Senior Courts |
[2022] EWHC 2928 (SCCO)
COSTS JUDGE Leonard
Case No: 201203467 A1
SCCO Reference: SC-2022-CRI-000093
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Appellant: Philip Rule (Counsel)
The appeal has been successful (in part) for the reasons set out below.
The appropriate additional payment, to which should be added the £100 paid on appeal, should accordingly be made to the Applicant.
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013
COSTS JUDGE Leonard
This appeal concerns the Appellant's right to payment for representing a publicly funded defendant to a prosecution, which is governed by the provisions of the Criminal Legal Aid (Remuneration) Regulations 2013. The Representation Order in this case is dated 16 January 2020, so the 2013 Regulations apply as at that date.
Schedule 3 to the 2013 Regulations relates to proceedings in the Court of Appeal. Sub-paragraph 1(2) of Schedule 3 reads:
“In determining fees the appropriate officer must, subject to the provisions of this Schedule—
(a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and
(b) allow a reasonable amount in respect of all work actually and reasonably done.”
Sub-paragraph 6(2) of Schedule 3 provides that the appropriate officer may allow the following classes of fee to an advocate:
“(a) a basic fee for preparation including preparation for a pre-trial review and, where appropriate, the first day's hearing including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications), views and any other preparation;
(b) a refresher fee for any day or part of a day during which a hearing continued, including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications), views at the scene of the alleged offence and any other preparation;
(c) subsidiary fees for—(i) attendance at conferences, consultations and views at the scene of the alleged offence not covered by paragraph (a) or (b);
(ii) written advice on evidence, plea or appeal or other written work; and
(iii) attendance at pre-trial reviews, applications and appearances (including bail applications and adjournments for sentence) not covered by paragraph (a) or (b)…”
A table at paragraph 9(1) of Schedule 3 provides prescribed fees for counsel of the types referred to in paragraph 6(2).
Sub-paragraph 9(4) reads:
Where it appears to the appropriate officer, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with the table following sub-paragraph (1) would not provide reasonable remuneration for some or all of the work the appropriate officer has allowed, the appropriate officer may allow such amounts as appear to the appropriate officer to be reasonable remuneration for the relevant work.”
The Background
The Appellant represented Keith Nelson (“the Defendant”) before the Court of Appeal on a renewed, out of time application for permission to appeal, and on the successful appeal itself.
On 10 May 2012 in the Crown Court at Exeter the Defendant, having pleaded guilty to making threats to kill, had been sentenced to imprisonment for the public protection with a minimum term of 3 years. The Crown Court had made a hospital direction incorporating a limitation direction under Section 45A of the Mental Health Act 1983. Concurrent terms of 2 years' imprisonment were imposed for earlier guilty pleas to racially aggravated assault and damage to property. Counsel who had represented the Defendant at the time had drafted Advice and Grounds of Appeal against sentence but leave to appeal had been refused by a single judge on 18 July 2012.
On 13 March 2017 the Legal Aid Authority had approved funding to allow the Appellant to consider all the documents in the case and to finalise Advice and Grounds of Appeal. On 22 October 2018 a renewed application for leave to appeal against sentence was made, supported by a 43 page Advice and Grounds drafted by the Appellant and dated 11 August 2018.
On 16 January 2020 the Full Court considered the renewed application and granted leave to appeal against sentence. I have not seen the court's order of that date, but according to the Appellant's written submissions the pertinent paragraph for present purposes was paragraph 9, which read:
“Granted a Representation Order to Solicitors for the preparation of the appeal against sentence, and to junior Counsel for the preparation and presentation of the appeal against sentence and for today's attendance.”
I have seen the Representation Order made on 20 January 2020, which reads:
“Full Court, in accordance with the above provisions, hereby grants a representation order to the applicant for the following purpose:
Preparation and presentation of an appeal against sentence and presentation of the renewed application for leave to appeal against sentence on 16 January 2020.
The order consists of representation by Counsel only”
The appeal was listed for a full day on 24 November 2020 before the Full Court, which heard submissions from the Appellant and from Prosecution Counsel, who had been directed to attend. The court reserved judgment to 2 December 2020, when the Defendant's sentence was varied to a Hospital Order under Section 37 of the Mental Health Act 1983 with a Restriction Order under Section 41.
I have read the Court of Appeal's judgment, which runs to 10 pages and bears neutral citation [2020] EWCA Crim 1615. It has been reported in the Mental Health Law Reports at [2021] M.H.L.R. 219. Notably, two consultant psychiatrists gave oral evidence on the appeal and were examined by counsel, and the court made a point of thanking both counsel for their very helpful written and oral submissions.
The court's decision turned upon its conclusion that the variation of the Defendant's sentence would meet, as far as appropriate, the requirement for punishment; would facilitate the continuing treatment of the Defendant's severe mental disorder (the main cause of his offending) which had already been notably successful; and would best protect the public from the consequences of a relapse which would be more likely to occur were his sentence not varied.
The Claim for Payment
The Appellant claimed a fee of £4,350 which according to the Determining Officer represented 20.25 hours' work prior to the hearing on 16 January 2020 and attendance at Court on the day (from the Appellant's work log I make it 20.15 hours' preparation, including a note to the Registrar and a skeleton argument, plus 30 minutes at court and 30 minutes reporting to instructing solicitors) and £7,500 for a further 32 hours' work done after 16 January 2020 and the full day court attendance on 24 November 2020.
The Determining Officer allowed an attendance-only fee of £150 for 16 January 2021 and a brief fee of £4,000 to include 32 hours' work done after 16 January 2020 (which he considered reasonable) and 5 hours' attendance at court on 24 November 2020. Recognising the exceptional features of the appeal, he took the view that the fee allowed equated to an hourly rate of over £100 which was comparable to the rates allowed for “Very High Cost Cases” (VHCC) in the most serious Crown Court cases, and so represented reasonable remuneration for the work done.
On allowing only an attendance fee for the leave to appeal hearing of 16 January 2020, the Determining Officer compared the wording of the court's orders in relation to that hearing with the wording for the appeal itself. Noting that for the appeal, the orders expressly authorised funding for preparation and...
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