R v Spahiu

1. This is an appeal from the Legal Aid Agency (“LAA”)’s Determining Officer under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. It concerns the appropriate payment under the Advocates’ Graduated Fee Scheme set out at Schedule 1 to the 2013 Regulations. The relevant Representation Order was made on 14 October 2023, and the Regulations apply as in effect on that date.

2. The matter in issue is whether, in this particular case, there was one trial or two. The relevant provisions are to be found at paragraph 2 of Schedule 1, which apply “where, following a trial, an order is made for a new trial…”

3. For present purposes the terms “retrial” and “new trial” are interchangeable. Background

4. John Spahiu (“the Defendant”) was charged with one count of Causing Grievous Bodily Harm with Intent. His trial started on 22 April 2024. A jury was sworn and placed in charge and the prosecution opened the case. The trial was halted and the jury discharged on 24 April 2024, due to a risk of prejudice. Two co-defendants had been (mistakenly) arrested outside of court, possibly in sight of the jury.

5. Trial was relisted for 7 May 2025, an interval of 13 days, and continued until 21 May 2024, when the Defendant was acquitted.

6. Between 22 and 24 April 2024 the Defendant’s advocate was Mr Simon Clarke. Due to professional commitments Mr Clarke was unable to represent the Defendant from 7 May 2024 and Mr Mark McDonald, the Appellant, took up the case.

7. Mr McDonald submitted a claim for payment on the basis that HHJ Kelleher, who presided over the proceedings in April and May 2024, had 24 April ordered a retrial which started on 7 May. This was refused by the Determining Officer on the basis that there had been one, continuous trial.

8. An attendance note produced by Mr Clarke and dated 24 April 2024 indicated that HHJ Kelleher had ordered a retrial. Apparently the court record does not record such an order. Mr McDonald’s clerk, in February 2025, obtained an email from a court clerk at the Crown Court confirming that “this was a re trial as the jury was discharged on the last occasion” but as a change of jury is not the criterion for determining whether there has been a retrial (the actual criteria are discussed below), that did not take matters any further.

9. Mr McDonald sent an email to HHJ Kelleher on 7 March 2025 asking him to confirm that there had been a retrial in May 2024. HHJ Kelleher replied on the same date; “I can confirm that Spahiu appeared for trial on 22/4/24. A jury was sworn and placed in charge and the case was opened on 23/4/24. The jury were discharged on 24/4/24 due to an incident outside court that the jury may have witnessed (which was not the defendants' fault). The case was then listed for trial again on 7/5/24 and proceed through to the jury reaching verdicts. I do not know what the LAA define as a "retrial" but I can confirm that those are the relevant facts.”

10. The LAA’s Determining Officer acknowledged that there was a change of counsel for the Defendant between “the first and second leg of the trial” but concluded, by reference to judgments and guidance considered below, that this on its own would not be an indication that the second set of dates should be considered as a retrial. Guidance and Decided Cases

11. There is no statutory definition of “trial”, “retrial” or “new trial”. Some of the authorities referred to below considered the provisions of the Criminal Defence Service (Funding) Order 2007, the predecessor to the 2013 Regulations, but there does not appear to be any material difference in the relevant provisions for the purposes of this decision.

12. Those authorities are referred to in Appendix O to the LAA’s Crown Court Fee Guidance, which reads as follows: “The decision about whether there is a single trial or a trial followed by a new trial in any case will depend entirely on the facts of that particular case. There are many different variables that must be considered when reaching a decision. Given this, providing absolute clarity is difficult. The purpose of this section of the guidance is to set out the variables that must be taken into account when making a determination in this area… The single most important factor is whether or not the trial judge makes an order for a new trial (as opposed to an order that the trial re-start or be re-listed)… If there is an order for a new trial and the same advocate represents the defendant in both the first trial and new trial then the fee payable is a graduated fee for the first trial (or new trial if the advocate elects) and a reduced rate for the new (or first) trial depending on when the new trial commenced (Paragraph 2(2) and (3), Schedule 1, of the Criminal Legal Aid (Remuneration) Regulations 2013). If there is an order by the judge for a new trial and a different advocate represents the defendant then paragraph 2 (5) and (6), Schedule 1, of the Criminal Legal Aid (Remuneration) Regulations 2013 applies and a graduated fee is payable to each advocate. Where an Order is Not Made for a New Trial It is acknowledged by all stakeholders that an order for a new trial is rarely made, and all other relevant factors must be taken into account when making a determination. In cases where there is no order made by the judge, then the LAA will apply the reasoning in Costs Judge decision: R. v. Nettleton (Mr Doran) (2012). In this case, Master Gordon-Saker held that if there is no order by the judge that there will be a new trial and the second leg of the case is deemed to be part of the ‘same temporal and procedural matrix’, then the fee payable is for one trial only. In Nettleton, despite the fact that there was a gap of two working days after the first jury was discharged, Master Gordon-Saker ruled that the case should be paid as one trial because it was part of the same trial process. In determining whether a case forms part of the same “procedural and temporal matrix”, the LAA will consider the factors set out below: • The length of time between the first leg and the second leg of the case. A gap of just a few days may, for example, indicate a single trial, whereas a gap of several months may indicate a trial followed by a new trial. Although the LAA will consider the length of gap in light of Costs Judge decision R. v Cato (2012) which held that where there is no order for a new trial the length of the delay does not necessarily mean there has been a new trial. The trial must have run its course (i.e. the jury must have gone out to consider its verdict) and an order for retrial must be made. • The stage at which the first leg concluded. If the trial concludes and the jury is unable to reach a verdict, any further trial will be considered as a new trial. Conversely, if the jury is discharged before all evidence has been heard, and the proceedings continue, it is more likely that this will be considered a single trial. R. v Forsyth (2010) held that in order for a trial to be considered a trial and new trial, the trial must have run its course (i.e. jury failed to reach a verdict) and there must be an order for a new trial and not merely a break (whether or not a second jury was empanelled). • The relative length of the first and second legs. A very short first leg followed by a much longer second leg may indicate that this was one trial. • A change of advocate between the first and second legs may be an indicator that there has been a trial followed by a new trial, depending on the reason for the same advocate not attending both legs. • A change of judge between the first leg and the second leg may be an indicator that there has been a trial followed by a new trial. Where the first judge has heard substantial legal argument which needs to be argued again before a second judge, it may indicate a trial followed by a new trial, whereas a change in judge early in the trial, for example because of illness or for administrative convenience, is more likely to indicate a continuing process. • A change in the case between first and second trial (e.g. a change in indictment, a change in way case is presented, etc.). A substantial change in the nature of the case may lead to a determination that there was a trial followed by a new trial. • Any comments by the trial judge in either the first or second trial to indicate there was a new trial.” The Appellant’s Submissions

13. Mr McDonald submits that the LAA has failed to take into account the specific position of Counsel as an independent member of the Bar, and to distinguish this from a firm of solicitors. In Nettleton, the appellants were all firms of solicitors, submitting that, albeit they had acted throughout, they should be entitled to claim for two trials. Here, however, Mr McDonald had no involvement in the matter until instructed for the trial on 7 May.

14. The most important factor in determining that there was a trial, he submits, is the continuity of the instructing advocate. Through no fault of Mr Clarke, the first trial was aborted, and he was no longer available to undertake a re-trial and so had to withdraw. It surely cannot be expected that in such circumstances the new counsel instructed will not be paid for the work they have done.

15. This was a short trial and a gap of two weeks is significant. The delay allowed for a new jury panel to be identified which was not contaminated by the events outside of the Court building. There is also a greater public interest, in this type of scenario where a matter has had to be returned, no Counsel will pick up the return and so justice will be delayed. Conclusions

16. R v Seivwright (SCCO Ref: 75/10), R v Ali (SCCO 164/10), R v Forsyth (SCCO 155/10) and R v Cato (SCCO 155/11) concerned paragraph 10(1) of Schedule 1 to of the 2007 Order, which applied where the same litigator had acted for the assisted person throughout the proceedings. Mr McDonald has, accordingly, a point in suggesting that the principles set out in those decisions do not necessarily extend to a situation in which a new advocate or litigator has been instructed.

17. I am unable however to allow his appeal, for these reasons.

18. Where there has been an unequivocal order by a trial judge to the effect that there is to be a retrial, then payment under the 2013 Regulations must be made on that basis. As the LAA’s guidance indicates, paragraphs 2 (5) and (6), Schedule 1, of the 2013 Regulations will apply.

19. If no such order has been made (and it seems that in this case that no such order was made) then one must look to the facts of the case to determine whether there has been a retrial. One can identify, from the guidance, two lines of reasoning in that respect. One is that the original trial must have run its course. The second is that there will not have been a retrial if, between the two hearings, there has been a break in the temporal and procedural matrix.

20. I prefer the second, more flexible approach. The question is whether such a break has occurred in this case. It seems to me that a space of less than two weeks between hearings (just long enough to select a suitable new jury) does not establish that. Nor am I aware of any other factor that might go to establish a break in the temporal and procedural matrix, other than the change of advocate for the Defendant.

21. The question then is whether the change of advocate alone is sufficient to establish such a break.

22. Mr McDonald’s reasoning in support of that proposition is based on the premise that, absent a finding that there has been a retrial, one of the two advocates instructed on behalf of the Defendant in this case must go entirely unpaid. That would obviously be unsatisfactory but it is not how I understand the 2013 Regulations to work.

23. The 2007 Order introduced a requirement that all case fees should be paid to one named advocate, the “Instructed Advocate”. Those arrangements were carried through to the 2013 Regulations. In 2015, amendments were introduced which provided (where the main hearing is a trial) for all fees to be paid to the “Trial Advocate”, defined as the advocate to attend the first day of trial (regulations 4 and 23). The refunding of any overpayment, similarly, would appear to be the responsibility of the Trial Advocate (regulations 25 and 2 (1)).

24. The division of fees in a case like this is, as I understand it, intended to be a matter for the advocates. The Bar Council’s Graduated Fee Payment Protocol addresses how that should be done.

25. The Redetermination and appeal processes at regulations 28 and 29 are, as to trial fees, available only to the Trial Advocate. Mr McDonald, who is not the Trial Advocate, has no standing to make this appeal. Where an advocate other than the Trial Advocate wishes to take issue with a Determining Officer’s decision, it is common practice for the Trial Advocate to file the appeal on their behalf.

26. Merits aside, I would have to dismiss this appeal because Mr McDonald is not the Trial Advocate. I am in any case not satisfied that would be right for me to reach the conclusion that a change of counsel must, on its own, represent a break in the temporal and factual matrix sufficient to justify the conclusion that the hearing that started on 7 May 2024 was a retrial. In all the circumstances it seems to me that the Determining Officer was right to conclude that it was a continuation of one trial which began on 22 April.

27. For those reasons, the appeal must be dismissed.