R v Popo

1. This appeal is governed by the Graduated Fee provisions of the Criminal Legal Aid (Remuneration) Regulations 2013. The relevant Representation Order was made on 6 March 2024, and the 2013 Regulations apply as in force at that date.

2. The issue on this appeal is whether the Appellant solicitors, who represented Nigel Popo (“the Defendant”) in the Crown Court at Inner London, should be paid the Graduated Fee appropriate to a trial that has started, or to a cracked trial (as defined below). The Appellant has been paid for a cracked trial, but maintains that a trial fee is payable.

3. Schedule 2 to the 2013 Regulations governs payment to Litigators under the Graduated Fee Scheme. Paragraph 1(1) of Schedule 2 provides definitions that are pertinent for the purposes of this appeal: “…‘cracked trial’ means a case on indictment in which— (a) the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea and— (i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and (ii) either— (aa) in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the first hearing at which he or she entered a plea; or (bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which he or she entered a plea, declare an intention of not proceeding with them…”

4. “Trial” is not defined in the 2013 regulations, and in many cases (including this one) the question of whether a trial fee or a cracked trial fee is payable will depend on whether a trial had begun in a “meaningful sense”, the test identified by Mr Justice Spencer in Lord Chancellor v. Henery [2011] EWHC 3246 (QB).

5. Whether that is so will depend upon the facts of the case. At paragraph 96 of his judgment Spencer J set out the principles by reference to which a court can determine the question: “(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… (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… (4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the 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… (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… (6) If… 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 purpose of the graduated fee schemes. It will 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… in the light of the relevant principles explained in this judgment.” The Background

6. The Defendant was charged on indictment with making indecent photographs of children. On 10 April 2024 he attended court and entered a not guilty plea and the matter proceeded towards trial.

7. On 26 November 2024 the parties attended court for the trial. Counsel for the Defendant (Mr Pierce) and for the Prosecution (Mr Parris, whose name is I believe misspelt on the trial transcript) addressed the Judge, HHJ Oliver, indicating that the parties were trial ready and that the witnesses were available to attend, although the had not yet arrived as they gone to the wrong court. Both wanted some time to discuss with the officer in the case the timing of the downloading of images to the Defendant’s phone.

8. This would be pertinent to issue of whether it could be shown that the Defendant made the images at issue, or whether (as he claimed) they had simply arrived as part of a wider tranche of pornographic images, without there being any demonstrable intention on the defendant’s part to obtain, view, or make the child related images at issue. There was also a subsidiary question of determining the age of those in the images in question, should it prove relevant.

9. Only a 45-minute delay was anticipated at that stage, but counsel reported back and explained that the phone was not at court. Given the images it held, it was in the custody of the police and arrangements would have to be made for inspection. Mr Pierce explained to the judge: “MR PIERCE: The… prosecution are attempting to allow inspection of the device. The device isn't at court. It has, of course, indecent images on it and it's held at a particular unit of the police and certain approvals need to be granted for us to allow access. I understand that previously the prosecution have offered to send the phone to a defence expert and also offered inspection of the device. I'm still yet to be in possession of chronology and the correspondence around all of that. But that's all historic and in any event, we will provide inspection today, if that can be facilitated today. I understand now my learned friend will address you. But there are now really two issues insofar as that inspection. One is the chronology of the downloads and what was going on either side of the download of the indecent images. The defendant's case is that he downloaded a whole tranche of pornography and these were simply some images within it. The second point I understand now the ages of the children depicted is potentially in dispute, further to my learned friend's instructions this morning, and so it may be that that needs to be addressed as well…. MR PARIS: … in terms of the length of time that the inspection will take, eight images, and it will be obvious whether there is any age implication and, B, issue as to age. I cannot imagine that there will be any disagreement between ourselves as to whether there is a live issue. I can't imagine that this will be the type of case where the jury will need to be troubled by the images. Then, in relation to timing, there must have been originally an Excel spreadsheet with or a searchable document with the timings of the various downloads on. It won't take me very long to work out what was going on immediately either side of the particular download. Bearing in mind we are talking about eight images at most, so it may be that we can make some progress today. What we really need to know is, can the device be brought here? Is it going to be powered up so that we can see it? And is there a spreadsheet available to enable the relatively short task to be completed? Beyond that, the case itself really won't take very long.”

10. At that stage it was thought that the parties would know by 2 p.m., as Mr Pierce put it, “whether this is going to be an effective trial this week or not.”

11. Subsequently it was confirmed that inspection (it would appear, by both prosecution and defence) could be arranged that afternoon, and it was agreed that the hearing should be adjourned until the following morning. Mr Parris and HHJ Oliver had this exchange: “JUDGE OLIVER… So, we will just adjourn until tomorrow morning. MR PARIS: Your Honour, yes. I’m going to make the application for Your Honour to certify that this is the first day of the trial. JUDGE OLIVER: Yes. MR PARIS: And it may be academic, if the trial doesn’t go ahead. JUDGE OLIVER: Yes, we will do, if necessary, yes.”

12. The following morning Mr Parris explained to HHJ Oliver the outcome of the inspection exercise: “So I will be offering no evidence in relation to the single count of the indictment. That is as a result of having further material from the phone which was supportive of the defendant's account of having downloaded a batch of pornography within which these few images resided. And of course Your Honour will know, I think, from the evidence that 13 other devices were seized from him, none of which had any indication of any other illegal images nor interest, sexual interest in children. And for the reasons that there now being no realistic prospect of conviction I offer no evidence.” The Appellant’s Submissions

13. Mr Georgiou for the Appellant says that the case was listed for trial on 26th November 2024, and all parties, including the prosecution, were ready, willing, and able to proceed with a fully contested trial. The trial Judge, HHJ Oliver, deemed 26th November 2024 to be the first day of trial.

14. Substantial case management issues arose on that first day, so that, in accordance with paragraph 96(6) of Spencer J’s judgment in Lord Chancellor v. Henery, trial had begun in a meaningful sense.

15. In open court, defence counsel made a legal application for disclosure of a full download of the defendant’s phone, specifically focusing on internet activity immediately before and after the alleged making of the images. This application was necessary to test the prosecution’s case that the images were “made” by the defendant in the legal sense, rather than merely being part of a bulk download.

16. The prosecution’s case relied heavily on selected parts of the phone download to demonstrate deliberate making of the images. However, the defence submitted that in order to properly assess this, it was essential to consider the full download and place the images in their proper context.

17. Although the defence argument was clearly set out in the defence statement, the prosecution had failed to disclose the complete phone download prior to trial. Accordingly, the matter had to be dealt with on the first day of trial by way of a legal application. The judge agreed with the defence and directed that the full download be disclosed. The case was adjourned to 27th November 2024 for this to be completed and reviewed.

18. Analysis of the disclosed material supported the defence contention to the effect that the download demonstrated bulk saving of material and not the individual selective making of the eight specific images. This undermined the prosecution’s case significantly. Following further discussions between Counsel on day two of the trial, the prosecution accepted that, in light of the full evidence and applicable law, they no longer had a reasonable prospect of conviction, and accordingly, offered no evidence. Formal not guilty verdicts were entered.

19. This was not a case where the prosecution elected not to proceed at the outset. They were trial ready and intended to contest the matter. The decision to offer no evidence on the second day was the direct result of legal argument and evidential issues raised during the first day of trial, which formed part of the trial process itself.

20. Substantial matters of case management were, therefore, undertaken. The legal arguments and discussions took place on the morning of the trial, with the matter ready to proceed to trial and the jury waiting to be sworn. The disclosure issue was so significant that the prosecution abandoned their entire case and offered no evidence as a direct and sole consequence of the argument. If the defence had not made the disclosure application, this would not have happened. The Respondent’s Submissions

21. Ms Weisman for, for the Respondent, refers to an number of cases decided by Costs Judges including R v Kiasuka-Kiakanda (SCCO Ref: 2020-CRI-000253) R v Barnes [2022] EWHC 1539 (SCCO), R v Tinkler (SCCO ref: SC-2021-CRI-000093), R v Sallah (SCCO Ref: 281/18), R v Altass-Gomez (SCCO Ref: 198/19), R v Pipe [2024] EWHC 106 (SCCO), R v Eastwood [2025] EWHC 832 (SCCO) R v Wali [2024] EWHC 3453 (SCCO) and R v Ahmed [2024] EWHC 1700 (SCCO)

22. Ms Weisman submits that there is a distinction to be drawn between “substantial matters of case management” and more ordinary matters of case management which might be regarded as falling within the usual pre-trial preparation, which (even if that preparation leads to a change in the position of either prosecution or defence) would not support the conclusion that a trial has started. Nor would the absence of any facts and issues discussed by Prosecution and Defence which, if not agreed, would have led to the requirement for judicial intervention or resolution.

23. R v Lamonby [2024] EWHC 22 (SCCO) can be compared and contrasted to this case. It related to the making of indecent photographs. The parties attended court for trial, but contrary to the court's direction, there had been no meeting of experts. Accordingly, the court ordered that the experts meet and prepare a report that morning, with the start of the trial adjourned until the afternoon.

24. During the short adjournment, but prior to the process of producing a joint experts' report, both prosecution and defence counsel were allowed to question the experts. Ultimately a joint report was prepared, which essentially exonerated the Defendant.

25. The prosecution then offered no evidence against the Defendant on all three counts, and he was formally acquitted.

26. Costs Judge Whalan found that whilst a meeting of the experts should have been undertaken as part of normal pre-trial preparation, for reasons in circumstances for which neither side appeared to have borne any procedural responsibility, it had not. More importantly, the process of questioning the experts would not normally take place pre-trial, and it seemed to have been a determinative factor of the prosecution's decision to offer no evidence. It could accordingly be said that the trial had begun in a meaningful sense.

27. Nothing of that kind happened here The Respondent submits that the inspection of the Defendant’s phone by both parties on 26 June 2025 was a part of normal trial preparation, and does not justify a finding that a trial had started. Conclusions

28. I need to repeat here and expand upon some observations I made in R v Ahmed.

29. It seems tolerably clear that in Lord Chancellor v. Henery Spencer J, in using the words “the court is dealing with substantial matters of case management”, had it in mind that (at a stage where at least a jury had been selected) the trial Judge would be called upon to make some sort of ruling or rulings. In R v. Wood (SCCO 178/15) Costs Judge Simons found that this was a prerequisite to the finding contended for in this case by the Appellant. On the logic of R v. Wood, this appeal, like R v Ahmed, could not succeed.

30. Costs Judges’ decisions are, however, not binding. Costs Judge Whalan, in R v Cox and R v Pipe, and Costs Judge Rowley in R v Sallah (SCCO 281/18, 18 March 2019) took the view that the resolution of substantial matters of case management by the parties at the direction of or with the approval of the trial Judge, could justify the conclusion that the trial had begun in a meaningful sense.

31. In my view the decision of Costs Judge Simons in R v. Wood is very much in line with the guidance of Spencer J in Lord Chancellor v. Henery. It does not necessarily follow that decisions such as R v Cox, R v Pipe and R v Sallah are not. The point of those judgments, as I understand it, is that there will be circumstances in which there is no real distinction to be drawn between substantial case management undertaken by the court and substantial case management delegated to the parties by the court.

32. Given that such is the case then, as Ms Weisman submits, the issues delegated to the parties by the court would have to extend beyond ordinary matters of case management. As she points out, it is absolutely commonplace for trials to crack at a late stage in consequence of the prosecution, the defence, or both, tackling matters of ordinary case management. To characterise such cases as effective trials is to overlook what the term “cracked trial” means.

33. I have been unable to reconcile the account of the proceedings on 26 and 27 June 2025 given in the Appellant’s submissions, with the transcripts of the hearings. Going by the transcripts it seems that this trial cracked because both parties undertook ordinary matters of case management at a very late stage.

34. The Defence did not (as the Appellant submits) make an application to HHJ Oliver on 26 June for disclosure of the Defendant’s phone, nor does any such application ever appear to have been made. On the contrary Mr Pierce, according to the transcript provided to me, indicated on behalf the Defendant that inspection, not to mention provision to an expert, had already been offered by the Prosecution (and, it would seem, not taken up).

35. As Ms Weisman says, one would in any event have expected any such application to as part of the normal pre-trial preparation. As it is, such matters as were actually discussed with HHJ Oliver on 26 June were of an administrative and practical nature.

36. Nor did HHJ Oliver certify that 26 June 2025 was the first day of trial. What he said to Mr Parris was that he would be willing, in the event that any such application was made, to certify that. He did so however on the clear understanding that any such application would (as Mr Parris put it) “be academic, if the trial does not go ahead”.

37. In other words, if there had been an effective trial that week, HHJ Oliver would have been willing to certify the 26 June was the first day. There was not, however, an effective trial.

38. As Ms Weisman says, this has every appearance of a commonplace occurrence: a trial that cracks before opening, once some basic trial preparation matters (which, it appears, could and should have been addressed earlier) had been attended to by both the Prosecution and the Defence.

39. My conclusion, in consequence, is that the Appellant has not demonstrated that a trial had begun in any meaningful sense. The appeal must be dismissed.