R v Curtis Howarth

Introduction

1. JMW Solicitors LLP (‘the Appellants’) appeal against the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) in respect of a claim submitted under the Litigator’s Graduated Fees Scheme (‘LGFS’). The issue is whether the fee to be paid for the new or second trial listed between 8 th May-9 th June 2023 should be subject to the ‘retrial’ provision set out in paragraph 13, Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2023.

2. This determination should be read in conjunction with my decision in R v. Curtis Howarth [2024] EWHC 310 (SCCO) . That case was heard under SCCO ref: SC-2023-CRI-000096. Background

3. The Appellants represented Mr Curtis Howarth (‘the Defendant’), who appeared with co-defendants at Leicester Crown Court on an indictment alleging conspiracy to defraud and converting criminal property (money laundering). The charges concerned the alleged defrauding of investors of a sum in excess of £1,000,000.

4. The trial began before HHJ Raynor on 29 th June 2022. The jury was empanelled and the first day included legal argument concerning the absence of one co-defendant. On 30 th June, the second day of the trial, one or more of the jurors indicated that he/she/they had a pre-booked holiday. Accordingly, the jury was discharged. The trial was relisted for 8 th May 2023.

5. On 8 th May 2023, the ‘second trial’ began, this time before Mr Recorder M Auty KC. It continued until 9 th June 2023 when the Defendant was acquitted on both counts.

6. The Respondent determined that the litigator trial fee should be paid as one continuous 23-day trial, comprising on 29 th June 2022 and ending on 9 th June 2023. This decision was set out subsequently in Written Reasons dated 19 th September 2023.

7. The Appellants contested this assessment in a Notice of Appeal heard on or about 10 th October 2023. I determined the appeal in the Appellants’ favour in R v. Curtis Howarth [2024] EWHC 310 (SCCO) . My conclusions were set out in paragraphs 12-14 of the determination as follows: ’12 Insofar as the relevant part(s) of the Regulations require, technically, ‘an order’ for a new or retrial, I find that this requirement is satisfied necessarily in this case. A formal re-trial order was unnecessary, as the first hearing had not concluded when the jury was discharged. It nonetheless seems axiomatic to me that in discharging the first jury and ordering a re-listing, the trial judge was ordering necessarily a new trial. 13 As to the breach of the temporal and procedural matrix, on the particular facts of this case, I favour the submissions of the Appellants over those of the Respondent. Almost a year elapsed between the first and second hearing. By the second trial, the judge had changed, some of the advocates were different, a new jury was empanelled, the co-defendant profile had changed as at least one had absconded, and the evidence had developed considerably. The correct conclusion, in my view, is that on the facts of this case there were two trials, and not one continuous trial running effectively from June 2022 to June 2023. 14 This appeal is allowed and I direct that the claim be assessed as a trial followed by a new trial.’

8. Following this determination, the Respondent re-assessed the Appellants’ LGFS claim and authorised payment ‘for 100% of the trial fee’ for the hearing between 9 th May and 9 th June 2023. Belatedly, however, the Determining Officer concluded that this was ‘an overpayment authorised in error’, and that the second fee payable should have been subject to the reductive provisions of para. 13, Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2023. The Respondent then recouped this ‘overpayment’ from the Appellants pursuant to the provisions of Regulation 25 of the Criminal Legal Aid (Remuneration) Regulations 2013. The Regulations

9. The Criminal Legal Aid (Remuneration) Regulations 2013 (the ‘2013 Regulations’), as amended, apply.

10. Paragraph 13 of Schedule 2 to the 2013 Regulations entitled “Retrials and Transfers” and provides (where relevant) as follows: 13(1) Where following a trial an order is made for a retrial and the same litigator acts for the assisted person at both trials the fee payable to that litigator is – (a) in respect of the first trial, the fee calculated in accordance with the provisions of this Schedule; and (b) in respect of the retrial, 25% of the fee, as appropriate to the circumstances of the retrial, in accordance with the provisions of this Schedule. Regulation 25 of the 2013 Regulations sets out the relevant repayment/ recoupment provisions. The submissions

11. I am provided with a Core Appeal Bundle paginated 1-56. The Respondent’s case is set out in Written Reasons dated 27 th November 2024. The Appellants’ case is set out in Grounds of Appeal filed on or about 18 th December 2024. Undated ‘Redetermination Submissions’ are set out at pp 25-27 of the Core Bundle. On 20 th January 2025, I directed that any additional written submissions, if so advised, be filed by 28 th February 2025. No such submissions were uploaded to the CE file by either party, and so my determination is based on the papers set out in the Core Bundle. My analysis and conclusions

12. The Respondent, in summary, acknowledges that this case turns on the correct, practical interpretation of my decision in R v. Howarth [2024] (ibid). Specifically: ‘The Determining Officer accepts the outcome of the previous appeal but disputes the Litigator’s interpretation of that decision. That there should be two trial fees is no longer in dispute. The issue in question is what the correct fee for the second trial is.’ The Respondent submits the fee for the second trial should be subject to the retrial provisions set out in paragraph 13 of Schedule 2 to the 2013 Regulations. Insofar as the Respondent originally authorised a ‘100% second trial fee’, as claimed by the Litigator, this was a regrettable error that justified recoupment of the overpayment in the fee.

13. The Appellants, in summary, submit that as no order was made at the retrial in June 2022, the second trial was essentially a ‘new’ trial. This reasoning is set out in the Redetermination Submissions at p.25 of the Core Bundle: Following the discharge of the jury during the trial in June 2022, no order was needed for a new trial given the empanelment of a fresh jury in May 2023 is a logical consequence of the discharge of the original panel during the trial in June 2022. As the Legal Aid Agency will be aware, this can be distinguished from a situation where the trial has run its course and the jury have failed to reach a verdict. In that scenario it is inevitable that there will be a re-trial although the prosecution usually wishes to consider their position in light of the evidence in the original trial and at a time after the hearing where the jury failed to reach a verdict. Ultimately, the Appellants submit that ‘this unique case is not one envisaged or anticipated by the Regulations and in accordance with paragraph 13…no order was made for a retrial’ (Grounds of Appeal, p.7). As such, it ‘would be unfair’ to subject the second trial fee to the retrial provision set out at paragraph 13.

14. It is true – and acknowledged by the Respondent in the Written Reasons dated 27 th November 2024 (Core Bundle p.44) - that the 2013 Regulations are unhelpfully ambiguous. Schedule 2, which governs the Litigators’ Graduated Fee Scheme, uses exclusively the term ‘retrial’ when referring to a second trial or hearing. In contrast, Schedule 1, which governs the Advocates’ Graduated Fee Scheme, uses exclusively the wording ‘new trial’ when referring to a second hearing (see para. 2). I made some reference to para. 2(2) of Schedule 1 at paragraph 6 of my 2024 R v. Howarth (ibid) judgment. Both provisions, however, set out a formula that reduces the advocates/litigators fee for the second trial. And in R v. Howarth (ibid), the determination was whether the Litigators’ fee should be paid as one continuous 23-day trial, as the respondent asserted incorrectly, or as two trial fees, as I concluded, given the effective rate in the temporal and procedural matrix between June 2022 and May/June 2023. There was, in a practical sense, no real distinction to be drawn between a case like this, where a second trial followed necessarily when the jury was discharged for the first trial, and those cases where a retrial was ordered after a jury failed to reach a verdict in the first trial. This is, moreover, a LGFS claim, so it is difficult to escape the conclusion that the Respondent was correct to apply the provisions of paragraph 13 of Schedule 2 of the 2013 Regulations. Ultimately, notwithstanding the regrettable need to recoup the payment erroneously made, I conclude that the Determining Officer’s decision to apply the reductive provisions in para. 13 was correct. Power to recoup is set out in Regulation 25 of the 2013 Regulations. For all these reasons, I prefer the submissions of the Respondent to those of the Appellants, and dismiss this appeal. TO: COPIES TO: JMW Solicitors LLP 1 Byron Place Spinningfields Manchester M3 3HG DX14372 Manchester 1 Legal Aid Agency DX 10035 Nottingham Legal Aid Agency 102 Petty France London SW1A 9AJ DX320 London The Senior Courts Costs Office , Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL: DX 44454 Strand, Telephone No: 020 7947 6468, Fax No: 020 7947 6247. When corresponding with the court, please address letters to the Criminal Clerk and quote the SCCO number.