R v Emad Kaky, Re

1. The issue arising in these appeals is as to the banding of an offence under the Graduated Fee Scheme set out in the Criminal Legal Aid (Remuneration) Regulations 2013 (as amended by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (the 2013 Regulations’).

2. The Appellants are advocates under the schemes and represented the defendant Emad Kaky in proceedings before the Nottingham Crown Court, in which Ms, Kelly KC acted as leading counsel and Ms Colbourn (now KC)as junior.

3. The offence upon which the banding for the fee claim is sought, is conspiracy to commit female genital mutilation outside England and Wales. Both Appellants claim that the fee payable is for an offence classified under Band 2.1, for a conspiracy to commit an offence outside the jurisdiction; whereas the Determining Officer assessed that the correct banding was 3.3, for an offence of serious violence, namely the commission of female genital mutilation.

4. Junior counsel’s claim was initially assessed and paid as claimed. Upon receipt of leading counsel’s claim, that payment was reviewed and identified as being in error, with recoupment pending subject to the resolution of any related dispute. Thus were I to determine that the correct banding to be applied is as assessed by the Determining Officer, this would mean that leading counsel’s claim remains as paid, and there is to be a recoupment in respect of Junior counsel.

5. At the hearing, which took place by video link on 10 March 2026, the Appellants represented themselves and Ms. Weisman, an employed barrister, appeared on behalf of the Respondent (effectively the LAA). Both sides had already provided written submissions. Background

6. The defendant Emad Kaky faced trial on the following 3 count indictment, Count 1 – conspiracy to commit female genital mutilation outside England and Wales, contrary to s 1 A of the Criminal Law Act 1977 and s 1 of the Female Genital Mutilation Act 2003; Count 2 - conspiracy to commit grievous bodily harm with intent outside England and Wales, contrary to s 1 A of the Criminal Law Act 1977 and s 16 of the Offences Against the Persons Act 1861; Count 3 – forced marriage, contrary to s 121(1) of the Anti-Social Behaviour, Crime and Policing Act 2014.

7. The Defendant pleaded not guilty and the matter proceeded to trial, at the conclusion of which he was convicted and sentenced to a term of 4 years and six months’ imprisonment. The relevant provisions/law

8. Schedule 1, paragraphs 1 (7) and (8) of the Remuneration Regulations amend the Table of Offences in Schedule 1, which previously governed the classification of offences for payment purposes, and replace it with the AGFS Banding Document. The Schedule provides, (7) A reference in this Schedule to a “band” is to the band of the offence concerned set out in Table B in the AGFS 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 .”.

9. Schedule 1, paragraph 3(1) directs when assessing the appropriate banding, where offences are not specifically listed in the Banding Document they are to be banded in the first instance within 17.1; that offences of conspiracy under section 1 of the Criminal Law Act 1977 are to be banded and remunerated in accordance with their substantive equivalents; and that there are certain factors to be taken into account where the application of the correct banding may require a degree of factual assessment, viz: 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;

10. Further subparagraph (e) of Schedule 1, paragraph 3(1 provides, where an entry in the AGFS Banding Document 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

11. Table B of the Banding Document lists a number of offences under sub-heading ‘Category 2:Terrorism’. It includes at offence no. 13 Conspiracy to commit offences outside the United Kingdom contrary to s 5 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 , stipulating that it is banded at 2.1. 12, ‘Category 3: Serious Violence’ of the Table B includes, at offence number 72, “offences relating to female genital mutilation” contrary to the Female Genital Mutilation Act 2003 , s 1 (1) , s 2 , s3 , s5 , stipulating that these are to be banded at 3.3.

13. Table A provides an overview and descriptions of the applicable categories of offences. Category 2 is headed “Terrorism” and Band 2.1 includes Terrorist murder (s36B Terrorism Act 2002); Explosive Substances Act 1883 offences – especially s2 & 3; preparation for terrorism, s5 Terrorism Act 2000 , disseminating terrorist publications, S2 Terrorism Act 2006 ; possession of material of the purpose of terrorism, S57 Terrorism Act 2000

14. Category 3 offences are described as those of “Serious Violence”

15. The introductory text to Tables A and B sets out that in Table A and Table B, “category” is used to provide a broad, overarching description for a range of similar offences which fall within a particular group or range of bands.

16. Section 5 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (the ‘1998 Act’) provides, so far as is material, as follows England and Wales. (1) The following section shall be inserted after section 1 of the Criminal Law Act 1977 (conspiracy)— “1A Conspiracy to commit offences outside the United Kingdom. (1) Where each of the following conditions is satisfied in the case of an agreement, this Part of this Act has effect in relation to the agreement as it has effect in relation to an agreement falling within section 1(1) above. (2) The first condition is that the pursuit of the agreed course of conduct would at some stage involve— (a) an act by one or more of the parties, or (b) the happening of some other event, intended to take place in a country or territory outside the United Kingdom. (3) The second condition is that that act or other event constitutes an offence under the law in force in that country or territory. (4) The third condition is that the agreement would fall within section 1(1) above as an agreement relating to the commission of an offence but for the fact that the offence would not be an offence triable in England and Wales if committed in accordance with the parties’ intentions. (5) The fourth condition is that— (a) a party to the agreement, or a party’s agent, did anything in England and Wales in relation to the agreement before its formation, or (b) a party to the agreement became a party in England and Wales (by joining it either in person or through an agent), or (c) a party to the agreement, or a party’s agent, did or omitted anything in England and Wales in pursuance of the agreement. (6) In the application of this Part of this Act to an agreement in the case of which each of the above conditions is satisfied, a reference to an offence is to be read as a reference to what would be the offence in question but for the fact that it is not an offence triable in England and Wales. (7) Conduct punishable under the law in force in any country or territory is an offence under that law for the purposes of this section, however it is described in that law. (8) Subject to subsection (9) below, the second condition is to be taken to be satisfied unless, not later than rules of court may provide, the defence serve on the prosecution a notice— (a) stating that, on the facts as alleged with respect to the agreed course of conduct, the condition is not in their opinion satisfied, (b) showing their grounds for that opinion, and (c) requiring the prosecution to show that it is satisfied. (9) The court may permit the defence to require the prosecution to show that the second condition is satisfied without the prior service of a notice under subsection (8) above. (10) In the Crown Court the question whether the second condition is satisfied shall be decided by the judge alone, and shall be treated as a question of law for the purposes of— (a) section 9(3) of the Criminal Justice Act 1987 (preparatory hearing in fraud cases), and (b) section 31(3) of the Criminal Procedure and Investigations Act 1996 (preparatory hearing in other cases). .. The contentions

17. The Appellant’s case is that the offence of Conspiring to commit a substantive offence under Section 1 A of the Criminal Law Act 1977 (‘ the 1977 Act ’) , is not the equivalent to and offence of Conspiring to commit a substantive offence under section 1 of the Criminal Law Act 1977 . Section 1 A was inserted by the 1998 Act and that section is banded within the AGFS as band 2.1. The provisions specifically refer to a Conspiracy to commit offences abroad as an offence in that band, without further reference to any substantive offence. Accordingly, it is the correct band for any substantive offence said to be charged under that section.

18. The Respondent’s case was, I have to say, not entirely clear to me, at the outset. But Ms, Weisman was in the event clear in her submission that if it were correct that the offence being charged was that provided for under Section 5 of the 1998 Act then I was required to find that this offence was a band 2.1 offence and the appeal should succeed. Her point was that in fact the indictment referred only to s 1 of the Female Genital Mutilation Act 2003 and did not mention section 5 of the 1998 Act but referred to section 1 A of the Criminal Law Act 1977 . I understand her argument to be that it followed from this and the way the indictment was framed that the offence might initially be banded in 17.1 but then considered as most appropriately banded within 3.1 as the closest equivalent offence, (as the Determining Officer had done). Decision and reasons

19. In my judgment the Appellants are clearly right about this.

20. It is plain that section 5 of the 1998 Act introduced a new offence of conspiracy which goes significantly beyond the offence under section 1 of the 1977 Act . There is considerably greater complexity associated with such an offence, as is clear from the second condition of the provisions which requires that the relevant act or event constitutes an offence under the law in force in the relevant country or territory outside the United Kingdom That is a substantial matter which might (as I think it did in this case) call for expert evidence.

21. It was recognised that the offence under s 1 of the 2003 Act ) could not be described as an act of terrorism so it was prima facie difficult to see why it should be banded under the heading ‘terrorism’, However as is clear there are a number of other offences which are listed under the offences in this band or category of which the same or similar may be said – see in particular the offence at 16 – attempting to cause explosion or making and keeping explosive with intent to endanger life or property (as Ms Kelly KC put it, this could be used for an offence of blowing up an ATM which had had nothing to do with terrorism).

22. In the event as I have indicated the particular point on which Ms. Weisman resisted this appeal was that in fact that the indictment did not refer to section 5 of the 1998 Act .

23. Ms Weisman is correct to say that, as appears from the provisions I have cited above, , save in the case of murder and attempted murder, the inchoate offences specified in Schedule 1, paragraph 3(1) (b) should be treated in the same as the substantive offence. However it is clear that section 5 of the 1998 Act inserted a new section 1 A into the and this did create a new offence which is to be treated differently under the scheme from the more conventional conspiracy (under Criminal Law Act 1977 section 1 of the 1977 Act ) .

24. The Appellants told me, and I accept, that the correct way to set out an offence which was brought in reliance the provisions brough in by section 5 of the 1998 Act is by referring in the indictment to the offence under section 1 A Criminal Law Act 1977 . It seems to be clear that the indictment must refer to the substantive legislation i.e. in this case the 1977 Act , not the amending legislation.

25. In any event to my mind it cannot make any difference. The relevant Schedule and the Banding document are clear that however the indictment is framed that the new offence created by section 5 of the 1998 is to be remunerated under Band 2.1.

26. Ms Weisman’s contention if it were correct would give rise to an absurd outcome; it would mean that despite of the obvious and clear intention of the provisions, they should be read as providing that an offence under section 1 A of the 1977 is not treated as a new offence, but is remunerated in the same way as a more conventional conspiracy.

27. Accordingly, in my judgment the correct banding for this offence is 2.1.

28. No issue was taken with the Appellants receiving the costs of the fees to issue the appeals. Only Ms Kelly KC sought a further fee to representing the time she had spent in preparing the appeal in the sum of £300. That is a modest claim and I understand was not controversial. Accordingly, I award her the further costs in this sum. COSTS JUDGE BROWN