Lord Chancellor v Frieze

MR JUSTICE LLOYD JONES: This is an appeal by the Lord Chancellor from the decision of Costs Judge Rogers. The appeal is brought pursuant to paragraph 22(5) of Schedule 1 of the Criminal Defence Service (Funding) Order 2001.

There is a preliminary question as to whether the Lord Chancellor requires permission to bring this appeal. However, I do not propose to take up time dealing with this question, which is not entirely straightforward, as I am satisfied that the proposed appeal has a reasonable prospect of success and that in any event this is a case where I should grant permission because the proposed appeal raises questions of general application on which there are conflicting decisions by costs judges.

The issue in this appeal is whether a particular case, R v Larkin, in which Mr Frieze was instructed on behalf of the defendant, should be treated for the purpose of paragraph 9 of the Order as a plea or a cracked trial. That is a matter which obviously has financial implications for Mr Frieze, because remuneration would be at a higher rate if the case was a cracked trial.

The relevant provisions are contained in paragraph 9 of the Order:

“(1)

The amount of the graduated fee for a single trial advocate representing one assisted person in a guilty plea or cracked trial shall be the basic fee specified in paragraph 10 as appropriate to the offence with which the assisted person is charged, the category of trial advocate instructed and whether the case is a guilty plea or a cracked trial, increased by the evidence uplift.

(2) The evidence uplift shall be calculated as follows:

(a)

there shall be no uplift in respect of the first 10 pages;

(b) the uplift set out in the third column of the applicable Table in paragraph 10 shall be payable in respect of each page from the 11th to the 50th;

(c)

the uplift set out in the fourth column of the applicable Table in paragraph 10 shall be payable in respect of each page from the 51st to the 100th; and

(d)

the uplift set out in the fifth column of the applicable Table in paragraph 10 shall be payable in respect of each page from and after the 101st.

(3)

A case on indictment in which a pleas and directions hearing takes place is a cracked trial if it fulfils the following conditions:

(a)

the matter did not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence, and

(b)

(i) in respect of one or more counts to which the assisted person pleaded guilty, he did not so plead at the plea and directions hearing; or

(ii)

in respect of one or more counts which were not proceeded with, the prosecution did not, before or at the plea and directions hearing, declare an intention of not proceeding with them.

(4)

A case on indictment in which no pleas and directions hearing takes place is a cracked trial if it was listed for trial but the case was disposed of without a trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence.

(5) A case on indictment is a guilty plea if it was disposed of without a trial because the assisted person pleaded guilty to one or more counts and is not a cracked trial.”

The effect of these provisions is that where there is a guilty plea or a decision by the prosecution not to proceed after the plea and case management hearing (“PCMH”), or after listing for trial if there is no PCMH, the case should be paid for as a cracked trial and not as a guilty plea. However, if the guilty plea or decision not to proceed is made before or at the PCMH, then the case is to be paid for as a plea.

On the face of the provision there seems to be a sensible basis for drawing the line in this way. In a situation where a guilty plea has not been entered by the time of the PCMH or the prosecution has not indicated that it does not intend to proceed by the time of the PCMH, then work will have to be done in preparation for trial and that should be reflected in the remuneration for the case.

Similarly, if the case is listed for trial then that may be taken as an indication that there is a real prospect of a contested trial. In those circumstances it is appropriate that the case should be characterised for the purposes of remuneration of legal representatives as a cracked trial rather than a plea.

The Larkin case came before the Leeds Crown Court pursuant to Section 51 of the Crime and Disorder Act 1998. The defendant faced an indictment in which the counts alleged (1) arson with intent to endanger life and (2) arson being reckless as to whether life was endangered. A preliminary hearing took place on 17^th October 2005 at which Mr Larkin was represented by Mr Frieze. Mr Larkin indicated on that occasion that he would not plead in respect of those counts. It appears, however, that an indication was given that he would be prepared to enter a guilty plea in respect of a lesser count of simple arson. The case was then listed for a further hearing on 6^th January 2006. There is an issue in this case as to whether the matter was listed for trial and, at the very least, it appears that a provisional trial date was given of 20^th February 2006. The hearing which was to take place on 6^th January was described as a PCMH. On the day before the PCMH, 5^th January 2006, the prosecution indicated that they were prepared to accept a plea to the lesser count of simple arson and indicated their intention not to proceed with the other counts on the indictment if such a plea was entered by Mr Larkin. Accordingly, at the hearing on 6^th January Mr Larkin entered a guilty plea to a charge of simple arson. The matter was then adjourned for sentencing, which took place on 17^th February 2006.

The question subsequently arose as to whether, in these circumstances, this was a plea or a cracked trial for the purposes of paragraph 9 of the Order. The determining officer produced a detailed and helpful ruling in which he concluded that this case should be treated as a plea and not as a cracked trial. His decision included the following passage:

“It is my opinion that in this case a plea and case management hearing did take place. The case was listed for a PCMH on 6^th January 2006 and appeared as such on the court list. It was at this hearing that the defendant pleaded guilty. At the hearing the defendant entered his pleas and the case was actively managed in that the judge gave directions that were designed to facilitate the future course of the case in that essential reports were ordered and a proposed date for sentence was allocated. I also note that the PCMH forms used by the judge in all such hearings has a paragraph 3, a section dealing with guilty pleas and providing for the giving of directions such as ordering the production and filing of a PSR and the defence filing additional material on which they wished to rely. If it is accepted that in a case which was listed for a PCMH at which a guilty plea was entered and directions for the listing of the sentence given constitutes a plea and case management hearing, then a PCMH has for all purposes, including determination, taken place.”

So the determining officer proceeded on the basis that a PCMH had taken place. He applied the criteria in paragraph 9(3) and concluded that this case should be treated as a plea and not a cracked trial.

Mr Frieze took the matter on appeal to the costs judge. On appeal he submitted that a PCMH had not taken place so that the matter was governed not by paragraph 9(3) but by paragraph 9(4), and he also contended that the criteria for a cracked trial in paragraph 9(4) were satisfied because the case had been given a trial listing at the preliminary hearing in October.

These arguments had, in fact, been canvassed before the same costs judge, Costs Judge Rogers, by Mr Frieze in an earlier case called Johnson [2006] 5 Costs LR 852. That case was concerned with very similar facts where Mr Frieze had again been counsel for the defence. In that case Costs Judge Rogers had set out the rival contentions of the determining officer and Mr Frieze and had expressed his conclusion in the following terms:

“I have to say that I find the reasoning of [the respondent] very convincing, and the reasoning of the Determining Officer less so, and, on my interpretation of the Regulations, I find that Counsel’s interpretation is to be preferred, and accordingly this appeal is allowed in full...”

In the present case Costs Judge Rogers referred to his judgment in the earlier case and said that it would be open to him to depart from that but that he did not propose to do so. He did not find that the determining officer had been able to distinguish the Johnson case on its facts and therefore it was inevitable that this appeal must succeed.

On this appeal Mr Buley, on behalf of the Lord Chancellor, says, with some justification to my mind, that the Costs Judge has never given any substantive reasons of his own for reaching the conclusion to which he came either in the Johnson case or in the present case.

It is convenient to refer at this point to a further decision in point, that of Costs Judge Saker in Barraclough. The facts there were again similar to the facts of the present case. In that case the costs judge was faced with the same argument that the hearing which had taken place under the label “plea and case management hearing” had not been such a hearing, a PCMH, because the defendant had pleaded guilty. In a careful and thorough judgment Costs Judge Gordon Saker came to the firm conclusion that the hearing was undoubtedly a plea and case management hearing, notwithstanding the fact that a plea of guilty was entered on that occasion.

There is, therefore, a conflict of authority at the level of the costs judges as to the correct approach to this issue which I am told is one which has arisen in a number of other cases which are awaiting the decision on this appeal.

On this appeal Mr Buley on behalf of the Lord Chancellor advances two grounds of appeal. First, he says that the costs judge erred in finding that no PCMH had taken place in the instant case because the hearing of 6^th January 2006 was a PCMH. He says it follows that the criteria in paragraph 9(3) of Schedule 4 were applicable, those criteria were not satisfied, and that the Larkin case was therefore to be treated as a plea and not as a cracked trial.

His second ground, advanced in the alternative, is that, even if a PCMH did not take place, the Larkin case had not been listed for trial but had merely been given a provisional date for trial at the preliminary hearing and accordingly the case was not a cracked trial for the purposes of paragraph 9(4).

I turn to the first ground. Before this court Mr Frieze, in developing his submissions, has adopted a rather different position from that which appears to have been adopted in the earlier proceedings before the determining officer and the costs judge. His position may be summarised as follows. He does not say that a guilty plea at a PCMH of itself prevents that hearing from being a PCMH. Rather, he says that for the hearing to be regarded as a PCMH for the purposes of this legislation there has to be some triable issue other than issues relating to sentence between the prosecution and defence at the end of the hearing. An example might be provided by a situation where the basis of plea which is tendered is unacceptable to the Crown and it is necessary to go ahead to a Newton hearing. Or he suggests that there may be situations in which there are outstanding issues of substance relating to linked indictments.

Accordingly, although the matter is no longer pursued on the broader basis, there have been, at least in the past, two bases, a broad basis and a narrow basis, on which the arguments have been advanced, and it may assist in other cases if I say something about each basis.

I turn first to the broad basis of argument, namely that the fact of a plea of guilty at a PCMH means that the hearing is not to be regarded as a PCMH for the purposes of paragraph 9. I am persuaded that this argument cannot be correct for a number of reasons. First, the terms of paragraph 9 themselves clearly indicate, to my mind, that a plea of guilty may be entered at a PCMH. In this regard I have in mind paragraph 9(3)(b)(i):

“In respect of one or more counts to which the assisted person pleaded guilty, he did not so plead at the pleas and directions hearing.”

This clearly contemplates that a plea of guilty can be entered at a PCMH.

If the respondent was correct in the broad submissions which he advanced below, it would follow that whenever a guilty plea was entered at a PCMH that hearing would cease to be a PCMH. If that were right, then subparagraph 9(3)(b)(i) would be rendered otiose. That provision only applies in the event that there has been a PCMH. I consider that paragraph 9(3) is clearly intended to apply to cases where a plea of guilty is entered at the PCMH. Moreover, there is an abundance of support for the view that a hearing remains a PCMH notwithstanding the fact that a plea of guilty is entered at the hearing in various materials which have been placed before me by Mr Buley on behalf of the Lord Chancellor.

In this regard he has drawn my attention in particular to the Practice Direction (Criminal Proceedings: Case Management) 2005 1WLR 1491, which states at paragraph IV.41.8 that:

“Active case management at the PCMH should reduce the number of ineffective and cracked trials…”

thereby indicating that the fact that a PCMH takes place cannot by itself be determinative of whether a trial is cracked, as it would be on the appellant’s case. Moreover, at paragraph IV.41.9 it states in relation to a PCMH hearing:

“In the event of a guilty plea before such an authorised judge, the case will be adjourned for sentencing.”

That clearly contemplates the entry of a guilty plea at a PCMH. Moreover, the PCMH form itself, which was used in all Crown Courts at the time with which we are concerned, includes a section which deals with events following from a guilty plea entered at that hearing, although I am told that a modified form is now in use which does not include that section.

Furthermore, the framework document, the Criminal Case Management Framework, a document published jointly by the Lord Chief Justice, the Secretary of State for Constitutional Affairs and the Attorney General, deals with PCMHs in the Crown Court. The first objective of the PCMH is stated at 11.1(a):

“To allow the court to take an early guilty plea.”

The court’s duty includes a duty at 1.5(b) to take a defendant’s plea, and the duties of advocates at such a hearing under 11.8(a) and 11.9(a) vary according to whether or not a guilty plea is entered.

For these reasons I am of the clear view that the PCMH hearing remains a PCMH hearing notwithstanding the fact that a guilty plea is entered at that hearing.

I turn to the narrower point. This is essentially that there has to be some triable issue other than a sentence outstanding between the parties at the end of the hearing for the hearing to be regarded properly for this purpose as a PCMH. To my mind this is an unwarranted restriction on the plain meaning of the expression “plea and case management hearing” as generally understood. I have already indicated that the hearing can result in a range of different outcomes. No doubt the matters to be resolved will be considerably more complex if the plea which is entered is one of not guilty. Nevertheless, it is the purpose of the PCMH to secure a plea. Part II of the framework document to which I have referred states of the plea and case management hearing:

“This is a hearing at which the defendant enters his plea and is sentenced as appropriate.”

The PCMH form, as I have indicated, contemplates a range of outcomes even if these outcomes or further proceedings do not include a substantive issue between the parties. It is clear from the form that this is still to be regarded as a PCMH. Moreover, the guidance itself at page 124 indicates that the PCMH can be a hearing at which sentence itself is passed.

For these reasons, I am unable to accept the suggested limitation on the expression “Plea and case management hearing” in paragraph 9.

In support of his submission Mr Frieze has relied on the decision of the costs judge in the case of Mohammed. However, in that case the costs judge was not concerned with the question whether the hearing which had taken place was or was not a plea and case management hearing; he was there, rather, concerned with what were the essential indicia of a cracked trial for the purposes of this Order. There is also, to my mind, force in the submission made by Mr Buley that if the respondent Mr Frieze is correct in his submission the matters which are said in Mohammed to be of the essence of a cracked trial, i.e. the subsistence of substantive issues remaining to be resolved, this would be precisely the same test to be applied on Mr Frieze’s submission for the purpose of determining whether there is or is not a PCMH. The two questions merge, and if that were right there would be no need for subparagraph (3) of paragraph 9 because one would simply have to ask whether there had or had not been a plea and case management hearing.

Mr Frieze has also sought to argue that various anomalies would follow in other areas if his reading were not accepted. However, I am not persuaded that I should give a narrow meaning to PCMH in order to meet these matters even if doing so would do so. The position here, to my mind, is that this expression has a clear and established meaning. It does not admit of more than one interpretation and it is the clear intention of the legislation that it should be applied to situations notwithstanding the fact that a guilty plea is entered and that there are no subsisting substantive issues to be resolved between the Crown and the defence.

I consider, therefore, that the hearing of 6^th January 2006 which took place in the case of Larkin was a PCMH.

In his skeleton Mr Frieze has argued further that the central issue in the appeal is really whether a trial listing made at a preliminary hearing is sufficient to bring paragraph 9(4) into play, and he points to the changes in practice which have occurred since the Order was made. In particular, he points to Section 51 of the Crime and Disorder Act, as a result of which indictable only offences are sent immediately by the magistrates to the Crown Court and the matter is listed for a preliminary hearing a very short time after the matter is received in the Crown Court. He says that, as a result, the PCMH is, in many cases, no longer the first effective hearing, that the courts now hold a preliminary hearing at which a trial date may be set, and that there may then be a PCMH usually some ten weeks later. Moreover, he says, the PCMH may be only a very short time before the hearing.

Mr Frieze’s essential point is that paragraph 9(4) should come into play when the trial date is set at the preliminary hearing and that that should have the effect of rendering the case a potential cracked trial if it ultimately does not go ahead and that that status should not be affected by the fact that there is a subsequent PCMH. He says that it makes little sense to permit a subsequent PCMH to affect the status of the case because it is often a matter of chance as to whether there is or is not a PCMH or whether the plea or the indication of intention not to proceed on the part of the prosecution comes at a PCMH or at some other hearing. He points to anomalies which, he says, can follow from this state of affairs. For example, he says that on the facts of this very case the matter might have been listed a week earlier simply for a plea, in which case there would never have been a PCMH and the matter would never have come within the ambit of paragraph 9(3). Or he says that he might have telephoned the court the afternoon before and asked them to list this matter not as a PCMH but as a plea, in which case the same consequence would have followed.

I can see that the scheme of paragraph 9 was devised at a time before the Section 51 procedure was introduced and that the scheme of paragraph 9 may not sit entirely happily with the new scheme in the Crown Court which Section 51 introduces. However, the short answer to Mr Frieze’s submission is that his case is inconsistent with the words of the paragraph, and the court cannot rewrite that provision to take account of changing practices in the Crown Court. The provision is entirely clear. The distinction between a cracked trial and a plea turns on the criteria there set out which make a fundamental distinction between cases where there has and has not been a PCMH. Until such time as the Order may be amended the court has to approach the matter on that basis.

I should add that I should not be taken as accepting that the anomalies referred to by Mr Frieze in his submissions necessarily result in unfairness or that they necessarily result from the chance as to whether or not a plea is taken at a PCMH. He points to the potential status of a cracked trial being removed by the chance of a plea being entered at a PCMH. However, it may be that the true source of any anomaly is not whether the plea is or is not entered at a PCMH but rather the operation of paragraph 9(4) so as to confer the potential status of a cracked trial on a case simply because a date for trial is fixed at the preliminary hearing. If, as I have suggested, the policy behind paragraph 9 is that a case should have the potential enhanced status of a cracked trial if it reaches a stage where it is likely to go to trial, then paragraph 9(4) would make sense if the trial is fixed at a relatively late stage in the proceedings, at which time it is likely the trial will be effective. That, I suspect, is what was contemplated in the making of paragraph 9(4). Mr Frieze has suggested that it may be that it was intended to deal with some administrative method of giving directions on paper in the absence of a PCMH. However, that justification will not apply if the trial is fixed at the early stage of a preliminary hearing, and there seems to me to be no compelling reason why a case should be treated as a potential cracked trial rather than as a plea simply because a trial date is fixed from the outset.

In any event, I have come to the firm conclusion that the hearing which took place in this case was a PCMH. In the light of the conclusion I have come to on the first ground of the appeal it is not necessary to consider the second ground, i.e. whether the case had been listed for trial or whether, as the determining officer considered, it was merely a provisional date.

Having regard to the changes in procedure in the Crown Court which have occurred since the order was made, it may be appropriate for the Lord Chancellor to give some consideration to the amendment of paragraph 9 in the light of the issues raised in this case.

I would allow the appeal and I would reinstate the amount awarded by the determining officer.