The Lord Chancellor v Woodfines Solicitors LLP & Ors

By Appellant’s Notice dated 4^th April 2019 the Lord Chancellor appealed the order made on 27^th February 2019 by Costs Judge Whalan at the Senior Court Costs Office. In his Order Master Whalan allowed an appeal pursuant to regulation 29 of the

In brief an appropriate officer can re-determine fees under Regulation 28 in respect of claims for Solicitors’ Fees under the Litigator Graduated Fee Scheme (“LGFS”) and a claim by Advocates under the Advocates Graduated Fee Scheme (“AGFS”). An appeal lies from that decision to a Costs Judge under Regulation 29, with the Costs Judge having the same power as the appropriate officer under the Regulations. If the Lord Chancellor wishes to appeal the decision of the Costs Judge, the appeal is brought under Regulation 30 in the Queen’s Bench Division, essentially following the procedures set out in Part 52 of the Civil Procedure Rules. It is to be heard and determined by a single judge whose decision will be final and, by Regulation 8, the judge has the same powers as the appropriate officer and a Costs Judge under the Regulations.

The first Respondents are Solicitors and the second and third Respondents Leading and Junior Counsel. They represented a defendant, Ayanleh Hosh, who was one of the Defendants tried at the St Albans Crown Court in a trial lasting some 41 days. Sentence was passed by the trial Judge on 2 convicted co-defendants on 17^th August 2017.

There were two counts on the indictment. The first count was “Conspiracy to evade the prohibition on the importation of prohibited firearms, contrary to section 1(1) of the Criminal Law Act 1977.” The particulars of the offence were:

“Ayanleh Hosh, Ikram Zaman and Khalid Hussain between the first day of January 2016 and the 31^st day of May 2016, conspired together with Muzaffer Ali, Haroon Kahatab, Sajid Khan, Stewart Fitzimmons and other persons to evade the prohibition on the importation of firearms contained within Article 1 of the Import of Goods (Control) Order 1954, in contravention of Section 170 (2) of the Customs and Excise Management Act 1979.”

[There is in the Appeal Bundle a different copy of the indictment which is particularised somewhat differently to include other co-Defendants. However, in respect of Mr Hosh, the difference is not material.]

Count 2 was in exactly the same terms save that the alleged conspiracy was to evade the prohibition on the importation of ammunition, rather than the importation of prohibited firearms.

The prosecution case, summarised in the prosecution opening, was:

“The Defendants were all involved in an ongoing agreement to import firearms and ammunition into the United Kingdom (UK) between February and May 2016. Firearms and ammunition, supplied by criminals in Holland, were smuggled into the country of two occasions during that period… the firearms and the compatible ammunition, must have been destined for those who were prepared to use them; they were weapons that would inevitably have been used to threaten, seriously injure, and even kill in the advancement of crime.”

Co-Defendants were sentenced as follows:

In paragraph 3 Master Whalan succinctly set out the procedural background to the claims made by the lawyers under the LGFS and AGFS. All three claimed that the charges faced by the Defendant should be categorised as Class B offences in the Table of Offences listed in Part 7 to Schedule 1 of the 2013 Regulations. The solicitors’ claim had been initially assessed by reference to Class B, while counsel’s claims had been assessed as Class F. In November 2017 the “appropriate officer” reconsidered the claim of the solicitors and re-categorised the offences as Class F. This led to a recoupment of over £55,000 from the sums originally paid. The classification of both solicitors’ and counsel’s fees were the subject of the appeal to Master Whalan

The Lord Chancellor did not appear before Master Whalan but submitted detailed written submissions. The Master identified two questions for his determination.

The first question was whether the lawyers had a right of appeal. Master Whalan found that they did under Regulation 29(1) in conjunction with Regulation 29(12). The Lord Chancellor says that there was a misunderstanding by the Master of the point made on his behalf. It is common ground that the lawyers did have a right of appeal pursuant to Regulation 29.

The second question was whether the offences with which the Defendant had been charged should be classified as Class B or Class F. The Master said this:

“18…First, by any reasonable interpretation of the Table of Offences, conspiracy to import firearms, specifically automatic weapons that “would inevitably have been used to threaten, seriously injury and even kill in the advancement of crime”, must come within “Class B; offences involving serious violence or damage, and serious drug offences”, rather than Class F, which, in this context, is concerned predominantly with the fraudulent invasion of excise duty. Although the indictment specifies section 170(2) of the 1979 Act, the contravention constituted simultaneously offences under the Firearms Act 1968, most of which (e.g. possession of firearms with intent to endanger life, use of firearm to resist arrest, possession of firearm with criminal intent, possession or acquisition of certain prohibited weapons etc.), are categorised as Class B. Compared to Class F, G and K, where the distinction turns on whether the value involved exceeds £30,000 (G), £100,000 (K) or otherwise (F), it is preferable undoubtedly. HHJ Carroll’s sentencing remarks refer to the Defendants intending to use the weapons in “terrorising, intimidating and causing serious injury and death”, meaning that the weapons were of the type categorised in section 5(1) of the 1968 Act. Secondly, so far as the Defendant was charged under section 170(2) of the 1979 Act, he was simultaneously brought within the ambit of section 4A of the Act, which was an amendment introduced by the … (“the 2014 Act”), and which increased the maximum term of imprisonment from 7 years to life imprisonment. Insofar as the 2014 Act post-dated the 2013 Regulations, it is not surprising altogether that he latter does not address the categorisation of these offences adequately, or at least leaves the issue open to confusion or doubt. Put simply, a conspiracy involving the importation of prohibited, automatic firearms and ammunition, in circumstances where the weapons were intended to be used for serious criminality and violence, in circumstances where a codefendant convicted of the same offences alleged against the Defendant was sentenced to 19 years’ imprisonment, should be classified as Class B, offences involving serious violence or damage, and not Class F, other offences of dishonesty.”

19.

I conclude…that the analysis of the Appellants is to be preferred to that of the Respondent. Given, specifically, the facts of this prosecution, it seems clear to me that the offences should be categorised as Class B and not Class F. Conspiracy to import a cache of automatic weapons and ammunition, with the intention of using them to commit crimes of significant criminality and violence, subject to a maximum penalty of life imprisonment, must reasonably be a Class B offence of violence, and not a Class F offence of fraud or dishonesty…. ”

Schedules 1 and 2 to the 2013 Regulations set out the AGFS and LGFS schemes. Paragraph 3 of each Schedule is in the same terms. For that reason this judgment will refer only to Schedule 1. A relevant factor is the class of offence for which the defendant has been tried (see below). Paragraph 3 contains a detailed description of classes of offences. The key sub paragraphs are:

“3.

Class of Offences

3 (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;

(c)

where the Table of Offences specifies that the Class within which an offence falls depends on whether the value involved exceeds a stated limit, the value must be presumed not to exceed that limit unless the advocate making the claim under regulation proves otherwise to the satisfaction of the appropriate officer;

……..

(e)

where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry includes every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences;…”

In this case Andrews J considered the AGFS in circumstances where an offence could potentially fall within Class K as well as Class B in the table of offences. She held that it was for the advocates and not a taxing authority to choose into which two equally viable classes of offence, the offence in question should fall. She said at [21]:

“The paying authority can only interfere if the claim that was made was clearly made under the wrong Class, and in this case the claim made by Mr Ahmed was valid because it was made under one of the two equally apposite Classes that this indictment covered.”

In the Ahmed case the particulars stated “in contravention of section 170”. As

Classification of an offence is a matter of first construing the indictment to determine what offence has been charged and then locating that offence in the Table of Offences. If it is specifically listed, that is an end of the matter. There is no discretionary assessment to be made. Sometimes, as in the Ahmed case, there is a genuine choice as to categorisation. In such a case it is the lawyer who can choose, rather than the determining officer.

Before turning to the appropriate route to classification of the indictment offences with which the Defendant was charged, it must be noted that it is also common ground based on Schedule 1 paragraph 3(b) that conspiracy falls within the same class as the substantive offence to which it relates.

I will set out section 170(2) of the Customs and Excise Management Act 1979 (“the 1979 Act”) since it was the evasion on the prohibition on importation of firearms/ammunition which was alleged to be the subject of the conspiracy to evade, in contravention of that subsection. The section provides:

“(2)

Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion –

…

(b)

of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment…

he shall be guilty of an offence under this section and may be arrested.”

The submission on behalf of the Lord Chancellor in the present case is as follows:

The Respondents’ submission is:

The mechanism referred to above is uncontroversial. The question is whether the offences with which the Defendant was charged were offences not specifically listed in the Table of Offences such that they were deemed to fall within Class H. The Respondents say that the substantive offences to which the conspiracy relates, namely the importation of particularly dangerous firearms, are not classified in Class A-G. The argument is that Parliament created a new offence contrary to subsections 170(2)(b) and (4A) of the 1979 Act, targeting the gravity of trafficking in firearms and simultaneously targeting both importation and particular types of firearms.

Section 170 (4A), so far as material says:

“In the case of:

(a)

an offence under subsection (1) or (2) above committed in Great Britain in connection with a prohibition or restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968,

…

Subsection (3)(b) above shall have effect as if for the words “imprisonment for a term not exceeding 7 years” there were substituted the words “imprisonment for life”.”

The essential difficulty which the Respondents have is that the Defendant was specifically tried for conspiracy to evade the prohibition on the importation of firearms “in contravention of section 170(2) of the Customs and Excise Management Act 1979.” There is no reference to section (4A). Further, section (4A) by its very wording substitutes the maximum sentence of 7 years with one for life in respect of “an offence under subsection (1) or (2) above”. Both the indictment itself and the terms of section 170 (2) and (4A) make it clear that the offence is under section 170(2). There is no separate offence under section (4A).

Mr Mehta put his oral argument in a different but related way. The other Respondents adopted this. He said that the offence with which Mr Hosh was charged had, subsumed within it, a possession of firearms offence which would have been Class

There is no lacuna in the 2013 Regulations. The statutory wording is clear and unambiguous. I was referred to the case of Duport Steels Ltd v Sirs [1980] 1 All ER 529. The passages of the speeches of Lord Diplock at p541 h-i and Lord Scarman at p551 d-f are particularly in point. As Lord Scarman said: “..in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments”. It must follow from the wording of the 2013 Regulations that this offence was properly classified as Class F.

The Respondents set out a number of reasons why the offence should not be Class F. These reasons would fall for consideration if there was a discretion in classification or some ambiguity in the 2013 Regulations. However, there is no discretion in classification if an offence is listed within a specific class, such as Class F; nor is there any ambiguity. Nevertheless, I shall briefly refer to the remainder of their argument.

The Respondents provide an analysis of offences where the maximum sentence is unfettered. These offences, such as homicide and related grave offences and offences involving serious violence or damage, and serious drugs offences fall within Class A or B. Similarly, life imprisonment firearms offences such as offences under section 16, 17 and 18 of the Firearms Act are Class B.

The Respondents also referred to the fact that, on 1 April 2018, the new AGFS Scheme 10 was introduced after a period of consultation. It was given statutory force by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (“the 2018 Regulations”). There is a new classification system. There is some doubt as to how the offences with which Mr Hosh was charged fall within the new scheme and I do not propose to try to resolve that doubt. Suffice it to say that:

In summary, therefore, a section 170(2) offence, conspiracy to commit which was contained in the counts with which the Defendant was charged, is specifically listed in the Table of Offences in the 2013 Regulations. In this regard reference should also be made to paragraph 3(1)(e) of Part 1 to the 2013 Regulations. This is reproduced in the Appendix, but I repeat it here. It states

“(e)

where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry includes every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences; (my underlining)

It follows that the appeal must be allowed.