In each of two cases before the Crown Court the barrister represented a defendant who had been charged with both murder and attempted murder arising out of the death of one victim and the serious injury of another. Pursuant to regulation 4(1) of, and Schedule 1 to, the Criminal Legal Aid (Remuneration) Regulations 2013, made under section 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the fee payable in relation to representation at trial for a particular offence was determined by the category and band into which that offence had been placed within the tables set out in the Advocates’ Graduated Fee Scheme Banding Document (formerly the “Table of Offences”), with Table B setting out categories of offence and Table A then setting out different “bands” within each category. In each case the barrister sought payment under category 1 in Table B, namely “Murder/Manslaughter”, and band 1.1 within Table A, which applied to offences which involved the “killing of two or more persons”. In each case the determining officer rejected the claims and instead assessed the fees as falling within the lower band 1.3 applicable to “All other cases of murder”. The barrister appealed, arguing that, in categorising attempted murder as a lower banding than murder, the Banding Document was ultra vires paragraph 3(1)(b) of Schedule 1 to the 2013 Regulations which deemed that attempts to commit an indictable offence fell within the same class as the substantive offence; alternatively, on a proper interpretation of the 2013 Regulations and the Banding Document, an indictment which charged murder and attempted murder in respect of two or more victims ought to be classed as band 1.1 and remunerated accordingly. The appeal was dismissed by the costs judge who upheld the banding decisions.
On the barrister’s appeal by way of case stated—
Held, appeal dismissed. (1) Section 2(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 conferred on the Lord Chancellor a very broad discretion as to the provisions for payment of remuneration and nothing within that section required either any specific level of remuneration or hierarchy between different offences. Those decisions having been left entirely to the Lord Chancellor’s discretion, he had been entitled therefore to set remuneration levels differently as between murder and attempted murder and had not, in doing so, negated any particular right established by the legislation. The comprehensive banding document, although not a statutory policy, was incorporated by reference into the provisions as a whole and was intended to relate to “every indictable offence”. In that context, it was reasonable and consistent with the various provisions to construe paragraph 3(1)(b) of Schedule 1 to the 2013 Regulations as having been intended to apply only in so far as no other specific provision had been made for a particular inchoate offence within the banding document. Thus, in the case of attempted murder, where the banding document placed the offence within band 3, the provisions of paragraph 3(1)(b) did not override that express provision and there was no inconsistency between the two. Nor was the distinction between attempted murder and murder for fee purposes the product of an error, instead having been expressly considered and consulted about. It followed that the banding document was not ultra vires the legislation (paras 23, 25, 26, 29, 30, 32, 35).
(2) In applying the banding document the starting point was to identify the category and band of the offence in Table B, after which consideration of Table A would follow only if it was necessary to determine the precise band by considering the facts of the case. The relevant Table B category was category 1 “Murder/Manslaughter”, which corresponded to bands 1.1, 1.2 and 1.3, with Table A providing that a category 1 offence would fall into band 1.1 if it involved, inter alia, the “killing of two or more persons”. “Killing”, on its ordinary meaning, meant that death had resulted. Accordingly band 1.1 did not apply in the present cases where there had been no second count of murder or manslaughter on the indictment and only one death. The second offence on the indictment, being the separate offence of attempted murder which was expressly provided for elsewhere within the banding document and which did not involve a “killing”, could not be taken into account for the purposes of determining into which band the selected offence of murder fell. It followed that, on the proper interpretation of paragraph 3(1)(b) of the 2013 Regulations, counsel's fees for an indictment charging a count of murder and a count of attempted murder were to be assessed not by reference to band 1.1, but by reference to the banding of the count of murder alone (paras 39, 40, 42, 43, 49–51).
The barrister in person.
Florence Iveson (instructed by Treasury Solicitor) for the Lord Chancellor.