Simon Csoka KC v The Lord Chancellor

I have been assisted in this matter by Senior Costs Judge Gordon-Saker and Ms Healy KC, although the decision is mine alone.

The Appellant, Mr Csoka KC, represents himself. He appeals under Regulation 30 of the Criminal Legal Aid (Remuneration) Regulations 2013 (“the 2013 Regulations”) against the decision of Costs Judge Jennifer James in the cases of R v Atkinson and R v Khan. The issue is whether the claims for fees were assessed correctly, and, in particular, whether the correct banding under the Advocates’ Graduated Fee Scheme (“AGFS”) was applied.

The factual background in the cases of R v Atkinson and R v Khan may be briefly summarised as follows. The Appellant represented Mr Jordan Charles Atkinson in Manchester Crown Court in an 8-handed trial for murder and attempted murder. Atkinson was accused of involvement in the shooting of two victims, one of whom was killed and the second was injured. Atkinson was acquitted of the offences of murder and attempted murder, but was convicted of other offences.

The Appellant also represented Mr Mohammed Nisar Khan in Bradford Crown Court in a trial for one count of murder and one count of attempted murder. Mr Khan had driven a car deliberately at two pedestrians, one of whom was killed and the other seriously injured. Mr Khan was convicted on both counts.

The Appellant sought payment in both cases under Band 1.1 of the AGFS Banding Document (“the Banding Document”) for the “killing of two or more persons”, Band 1.1 being one of four bands (1.1 to 1.4) applicable to offences of “Murder/Manslaughter”. The Determining Officer in each case rejected that claim and instead assigned them to the lower Band 1.3: “All other cases of murder”. It is not in dispute that, irrespective of whether or not the Determining Officer erred in not assigning the cases to Band 1.1, Atkinson’s offence should, on any view, have been assigned to Band 1.2 for “killing done with a firearm”.

The Appellant appealed against both decisions under Regulation 29 of the 2013 Regulations. The cases were considered together on appeal as they both raised the same issue as to the correct band to be applied in cases where the charges included both murder and attempted murder. The Appellant argued that the Banding Document is ultra vires in that, contrary to the 2013 Regulations, it wrongly categorises attempted murder in a separate lower band than murder. It was further argued that, in any event, whether the banding was ultra vires or not, as a matter of logic and to avoid absurdities and anomalies, an indictment which charged murder and attempted murder in respect of two or more victims should be remunerated at the higher Band 1.1 rate.

By a written decision issued on 15 June 2021, Costs Judge James rejected the appeals and upheld the banding decisions applied by the Determining Officer in each case. Upon the Appellant’s application, Costs Judge James certified the following question for this Court:

“Does the proper interpretation of paragraph 3(1)(b) of the [2013 Regulations] mean that, on an indictment charging a count of murder and a count of attempted murder, counsel’s fee should be assessed as band 1.1 “killing of two persons” or by reference to the banding of the count of murder alone (band 1.2 or band 1.3)?”

Section 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), so far as relevant, provides:

“2 Arrangements

…

(3)

The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part.

(4)

If the Lord Chancellor makes arrangements for the purposes of this Part that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or person must assess the remuneration in accordance with the arrangements and, if relevant, with regulations under subsection (3).

…”

The regulations made pursuant to the power under s.2(3), LASPO are the 2013 Regulations.

Regulation 4(1) of the 2013 Regulations provides:

“Claims for fees by a trial advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to these Regulations.” (Footnote: ¹)

This makes it clear that the making and determination of any claim for fees is governed by Schedule 1 to the 2013 Regulations. The key paragraph of that Schedule for present purposes is paragraph 3. In its original form, upon enactment, it provided as follows:

“(1)

For the purposes of this Schedule—

(a)

every indictable offence falls within the Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed are deemed to fall within Class H;

(b)

conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977 (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981 (attempting to commit an offence) fall within the same Class as the substantive offence to which they relate;’ [Emphasis added]

The class of the offence determined the fee payable in relation thereto. The table of offences was provided at Paragraph 1 of Part 7. The most serious offences were classified as Class A:

Paragraph 1 of Part 7 has been amended on various occasions, including most recently on 1 April 2018 by way of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018/220 (‘the 2018 Regulations’), pursuant to which Paragraph 1 of Part 7 was moved to Schedule 2, part 7.

The 2018 Regulations also amended Paragraphs 3(1)(a) and (b) of Schedule 1, such that they now refer to the “AGFS Banding Document” rather than the “Table of Offences”:

“(1)

For the purposes of this Schedule—

(a)

every indictable offence falls within the band of that offence set out in the AGFS Banding Document and, subject to sub-paragraph (2), indictable offences not specifically so listed are deemed to fall within [band 17.1];

(b)

conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977 (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981 (attempting to commit an offence) fall within the same band as the substantive offence to which they relate;” [Emphasis added]

As with the previous system, the fee payable in relation to representation at trial for a particular offence is determined by the band into which it is placed. Paragraph 1 of Schedule 1 to the 2013 Regulations defines “band” for these purposes as follows:

“(7)

A reference in this Schedule to a “band” is to the band of the offence concerned set out in Table B in the AFGS Banding Document, as read in conjunction with Table A in that document.

(8)

Where the band within which an offence described in Table B in the AGFS Banding Document falls depends on the facts of the case, the band within which the offence falls is to be determined by reference to Table A in that document.”

Thus, one must first identify the “band of the offence” as set out in Table B of the Banding Document. Where, as is the case for the Band 1 offence of “Murder/Manslaughter”, there is more than one potential band specified in Table B, the reader is directed to Table A to determine which particular band is applicable. For Murder/Manslaughter, there are four potential bands – 1.1 to 1.4 – and the relevant part of Table A of the Banding Document provides:

Band 3 Offences in Table B are those of “Serious Violence”. The offence of “Attempted Murder” can be either band 3.1 or 3.2, and the reader is once again directed to Table A, which, so far as relevant, provides:

The basic fees corresponding to these bands are set out in a table at paragraph 5 of Schedule 1 to the Regulations. The relevant entries provide:

Pursuant to Paragraph 27 of Schedule 1 to the 2013 Regulations, where the defendant has been charged with more than one offence, the trial advocate can select the offence upon which they rely for the purposes of claiming a fee.

The two grounds of appeal are that:

Mr Csoka submits that, as Paragraph 3(1)(b) of Schedule 1 to the 2013 Regulations clearly stipulates that “attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981 (attempting to commit an offence) fall within the same band as the substantive offence to which they relate”, it was not open to the Lord Chancellor to place the offence of attempted murder in a separate lower band to the substantive offence of murder to which it relates. The banding for attempted murder is therefore ultra vires the 2013 Regulations and should not be applied. To do otherwise leads to serious anomalies and absurdities in the scheme for remuneration in that, for example, a higher fee would have been payable had both victims survived, thus entitling the Advocate to payment at Band 3.1 (Attempted murder of two or more persons), rather than the rate for Band 1.3 (All other cases of murder).

Ms Iveson, who appears for the Lord Chancellor, submits that the Banding Document cannot be said to be ultra vires because nothing in it purports to cut down or negate any rights established by primary legislation. Section 2(3) of LASPO confers a broad discretion on the Lord Chancellor to make provision for the payment of remuneration to trial advocates. What Mr Csoka identifies as being ultra vires is in fact, at most, an internal inconsistency within the 2013 Regulations between two provisions as to payment, both of which are within the scope of the broad discretion afforded to the Lord Chancellor and permissible. Ms Iveson further submits that the different approach taken in respect of attempted murder, as opposed to that in respect of attempts in respect of other offences, is not arbitrary but the result of “detailed discussion between the Ministry of Justice and the Bar and two public consultations”.

The starting point in the determination of the ultra vires argument is the legislation under which the impugned provision was made. That provision is s.2(3), LASPO. As Ms Iveson submits, this confers on the Lord Chancellor a very broad discretion as to the provisions for payment of remuneration. There is nothing in s.2(3) that requires any specific level of remuneration or approach to the hierarchy between different offences, such matters being left entirely to the Lord Chancellor’s discretion.

Paragraph 3(1)(a) of Schedule 1 to the 2013 Regulations (as amended) provides that “every indictable offence falls within the band of that offence set out in the [Banding Document], and … indicatable offences not specifically so listed are deemed to fall within band 17.1”. The Banding Document, incorporated by reference into the 2013 Regulations, is thereby determinative of the band into which every listed indictable offence falls. In respect of attempted murder, the Banding Document stipulates that such offences fall into Band 3. The Banding Document is extensive and identifies bands (in Table B) for no fewer than 915 offences in 17 categories; it is clearly intended to be as comprehensive as it can be in respect of indictable offences.

Paragraph 3(1)(b) of Schedule 1 to the 2013 Regulations does state that “conspiracy to commit an indictable offence ..., incitement to commit an indictable offence and attempts to commit an indictable offence … fall within the same band as the substantive offence to which they relate” (“the inchoate offences”). However, given the comprehensive nature of the Banding Document, which is intended to relate to “every indictable offence”, it is reasonable to construe paragraph 3(1)(b) as to the banding of inchoate offences as being intended to apply only insofar as no other specific provision has been made for a particular inchoate offence in the Banding Document. That reading of the provisions is consistent with the principle of statutory interpretation that the provisions of the relevant instrument (including those incorporated by reference) are to be construed as a whole and, if possible, in a way which renders consistent its various provisions (see Lord Chancellor v Woodhall [2013] EWHC 764 at [14]). In the case of attempted murder, express provision is made in the Banding Document by placing it in Band 3, and the provisions of paragraph 3(1)(b) do not override that express provision. On this reading of the 2013 Regulations and the Banding Document, there is no inconsistency at all between that paragraph and the Banding Document, and certainly nothing that would suggest that anything in the Banding Document is ultra vires.

Even if I am wrong about that approach to the interpretation of paragraphs 3(1)(a) and (b) of Schedule 1 to the 2013 Regulations, and there is an inconsistency between paragraph 3(1)(b) and the Banding Document, the banding of attempted murder would not be ultra vires. As discussed above, s.2(3), LASPO does not confer a right to any particular level of remuneration at all or as to remuneration levels based on any particular hierarchy of offence. As such, the Lord Chancellor’s broad discretion under that section entitles him to set remuneration levels differently as between murder and attempted murder. In doing so, he has not cut down or negated any particular right established by the legislation: see R (on the application of Al-Enein) v Secretary of State for the Home Department [2020] 1 W.L.R. 1349, where Singh LJ stated (at [28]) that subsidiary legislation will be ultra vires where:

“…it seeks to cut down or negate rights which have been created by primary legislation. The same would also apply to a governmental policy, which does not have the force of legislation. This is simply an example of the fundamental principle that the executive cannot act in a way which is inconsistent with the will of Parliament.”

Although the Banding Document is not a policy document as was the subject matter in R (Al-Enein), the same principle would apply here.

Given that, on this analysis, the banding of attempted murder is not ultra vires, the apparent inconsistency with Paragraph 3(1)(b), which stipulates that the inchoate offence falls in the same band as the substantive offence to which it relates, amounts to little more than a drafting oversight in that the words “save in respect of attempted murder” (or some such exception) were not included in the 2018 amendment of that paragraph.

Moreover, it cannot be said that this exception in respect of attempted murder is arbitrary or the result of any obvious error. I am told (as was the Judge) that the Banding Document was the “product of detailed discussions between the Ministry of Justice and the Bar and two public consultations” and that the distinction between murder and attempted murder was agreed upon in the course of those discussions. There is evidence before me (which was not adduced below) as to the Bar Council’s proposals for the Banding Document, which are contained within a document entitled “Bar Council’s Advocates’ Graduated Fee Scheme (AGFS) Working Group Proposal for a new Scheme”. This document contains the following statement:

“All inchoate offences are to be included and paid at the rate for the substantive offence. The exception to this rule is in cases of attempted murder that fall into Category C ‘Serious Violence.’” [Appendix 1, p16, §a]

The distinction between attempted murder and murder for fee purposes was therefore something that was expressly considered and apparently endorsed by the profession’s representative body, albeit that the distinction was not one that had universal support.

I should also mention here that part of the reasoning below in concluding that the Banding Document was not ultra vires was that “it fulfils a logical aim in differentiating between cases of murder where the starting point for sentencing is 15 years, 30 years or whole life.” Ms Iveson, in her oral submissions at least, did not seek to uphold that aspect of the Judge’s reasoning. She was right not to do so. There is no material before me to suggest that the sentencing regime for murder and attempted murder played any part in the different approach to banding for these offences. In any event, as Mr Csoka correctly points out, any comparison with the sentencing regime is likely to throw up as many differences of approach between the two schemes as similarities such that no meaningful comparison can be drawn. One example, set out in Mr Csoka’s skeleton argument, is that of taking a knife to the scene; that would attract a higher starting point for the purposes of determining the minimum term of a life sentence, but, under the Banding Document, it would fall into Band 1.3 (All other cases of Murder) unless one of the features for a Band 1.1 offence were present.

As to Mr Csoka’s argument that the exception for Attempted Murder leads to anomalies when applying the Banding Document, that may well be right, but it does not mean that the exception is ultra vires. Any scheme for remuneration based on determinative bands is likely to result in at least some anomalous outcomes, some of which might be more or less favourable to the Advocate than the strict application of logic might suggest. That is the price that must be paid for a comprehensive scheme that can be applied by Determining Officers quickly and easily. As Leggatt J (as he then was) stated in Lord Chancellor v Woodhall [2013] EWHC 764 in dealing with an apparently unfair remuneration outcome under an earlier scheme:

“18.

I am sorry to have reached that conclusion, as my understanding is that Mr Woodhall had to undertake a substantial amount of work in preparing for trial in this case, for which the fee for a guilty plea may be sparse remuneration. However, as Mr Woodhall pointed out in his submissions, the principle on which the scheme is based is not one of providing fair remuneration by reference to the amount of work done, but is a rule-based system. In words that he quoted from the case of R v Grigoropolou [2012] 5 Costs LR 982 , and as the judge observed in that case, “there is no equity in a scheme which would permit the court to put right perceived injustices, because its modus operandi is one of roundabouts and swings”.

Costs Judge James considered that case and said as follows:

“51.

It is in the nature of the AGFS that it will produce anomalies; there is inevitably a ‘price’ to be paid for the certainty that comes with such a scheme and that includes the possibility of cases which will attract a lower fee than a less serious and onerous case. Atkinson and Khan, where the Appellant will receive less money because one victim in each case died, than he would if both had survived, are prime examples of this phenomenon but, as Leggatt J put it these are swings and roundabouts and part of the way that the AGFS operates.”

I agree.

For these reasons, Costs Judge James was not wrong to conclude that the Banding Document was not ultra vires. Ground 1 of the appeal therefore fails and is dismissed.