R v Michael Pipe

Martyn Prowel Gartside Solicitors (‘the Appellants’) appeal the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) in a claim under the Litigator’s Graduated Fees Scheme (‘LGFS’). The issue for determination is whether the fee allowed for the hearing on 5^th and 6^th July 2021 should be paid as a trial, as claimed or as a ‘cracked trial’, as allowed.

Mr Michael Pipe (‘the Defendant’) was charged with one co-defendant at Newport Crown Court on an indictment alleging conspiracy to supply amphetamine, a controlled drug of Class B. After a protracted pre-trial chronology, during which the trial was listed but adjourned because of the Covid pandemic and transferred between Cardiff and Swansea Crown Courts, a two-week trial was listed in July 2021.

On 5^th July 2021, the first day of the listing, the trial judge was told by counsel for the prosecution and defence that there were some legal matters which required attention, the determination of which might reduce the length of the trial. Neither side, at that stage, anticipated that the case was capable of resolution, and the trial judge was informed that a contested hearing was likely.

The prosecution had served on the defence, a ‘Timeline document’, an 89 page report which included maps, mobile phone downloads, cell sight analysis and other raw datum, which purported to evidence the Defendant’s criminality. Parts of this document were contentious and subject to discussion and negotiation between the parties. The Appellants submitted specifically that it contained evidence that was not relevant to the charge against the Defendant and should not form part of the case against him. It seems that this document was the subject of a relatively determined negotiation between the prosecution and the defence. The next day, 6^th July 2021, the prosecution indicated to the Appellants that they would accept a plea from the Defendant on a reduced factual basis. Further discussions and negotiations then took place between the prosecution and the defence. The judge, having been made aware that the trial may now be capable of resolution, allowed further time for this negotiation. Eventually, agreement was reached as to the extent of the involvement of both the Defendant and his co-defendant, and this was set out in a document entitled ‘Agreed Basis of Plea’ that was signed by all three counsel. The Defendant then changed his plea to guilty.

He was sentenced on 24^th September 2021, based on the involvement agreed at court in July.

The applicable regulations are the Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’), as amended.

The Determining Officer cites paragraph 1(1)(a) of Schedule 2 to the 2013 Regulations, which states:

“cracked trial” means a case on indictment in which –

(a)

a plea and case management hearing take places and –

(i)

the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and

(ii)

either –

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

(bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the plea and case management hearing, declare an intention of not proceeding with them; or

(b)

the case is listed for trial without a plea and case management hearing taking place…

I was referred by both the Appellant and the Respondent to the guidance in Lord Chancellor v. Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) where Mr Justice Spencer stated (at para. 96) that:

I am referred additionally to R v. Barnes [2022] SCCO EWHC 1539 (SCCO), and my decisions in R v. Coles [2017] SCCO Ref: 51/16 and R v. Lamonby [2024] EWHC 22 (SCCO).

The Respondent’s case is set out in Written Reasons dated (or received on or about) 23^rd December 2021. The Appellants’ case is set out in the Grounds of Appeal and in a four-page Appeal Submission. I have been provided with two Bundles, an Appeal Bundle (1-72), and a Bundle exhibiting the Timeline document (1-89). Mr Rees KC represented the Appellants at the oral hearing on 19^th January 2024. No appearance was made by the Respondents.

The Respondent, in summary, notes that no jury was selected or sworn, and the prosecution case was not opened. At no stage did the trial judge hear or determine any matter of law relating the admissible evidence. There was no voir dire or other legal argument. Accordingly: “There was no evidence that a trial began in any “meaningful sense””.

The Appellants, in summary, rely on the guidance at paragraph 96(6) of Henery (ibid), in that the events of 5^th/6^th July constituted ‘substantial matters of case management’, with the result that the trial had been begun ‘in a meaningful sense’. The 89-page Timeline Document produced by the prosecution was subject to complex and detailed discussion and negotiation over a period of two days. The parties’ respective submissions could have been heard and determined by trial judge, who would have decided what evidence could be put before a jury, but it is acknowledged that diligent advocates would endeavour to agree this to save court time. The negotiations were substantive, producing an agreement that reduced significantly the ambit of the Defendant’s criminality. The indictment alleged effectively that he and a co-defendant had received 105-165kgs of amphetamine between 4^th January and 21^st May 2020. The Agreed Basis of Plea demonstrated receipt of 30kgs. The Defendant, having changed his plea, was sentenced to 48 months’ imprisonment. Conviction on the indictment as drafted would probably have led to a sentence of around 6 years.

I find, on the particular facts of this case, that the hearing on 5^th /6^th July 2021 should be assessed as a trial and not a cracked trial, as the court dealt with substantial matters of case management, meaning that the trial had begun in a meaningful sense. Two points, in my view, inform this conclusion. First, it is notable that the hearing lasted for almost two days before the Defendant changed his plea. It seems to me that a period of this length is more consistent with ‘substantial’ case management as opposed to more general, expected pre-trial preparation. Second, there is, it seems to me, a qualitative difference between the sort of evidential preparation recited in Barnes (ibid), and negotiation that culminated in a substantive change to the case against the Defendant. Amendments to the Timeline, in other words, did not simply vary the evidence admissible in respect of the charge made against the Defendant, but led rather to an agreed change to the factual substance of that charge, resulting in a significantly reduced sentence, after the Defendant had changed his plea. Most cases may require some discussion and amendment to the admissible evidence, but it is not in every such case that these changes lead to an agreed variation to the alleged criminality. This, it seems to me, is the difference in cases like this between ‘case management’ and ‘substantial case management’.

For these reasons, this appeal is allowed and I direct that the Appellants’ LGFS claim be assessed as a trial and not a cracked trial.

The Appellants have been successful and I award costs of £1000 (+ any VAT payable) along with the £100 paid to issue the appeal.