R v Kieran Tongue

Background

1. The Defendant was charged with being concerned in supplying a controlled drug of class B to another, following which a hearing took place on 12 April 2024 at which the Defendant pleaded not guilty.

2. A trial was subsequently listed for 4 September 2024 at which the prosecution submitted a bad character application. The Judge agreed to listen to the full argument and the application was granted.

3. The defence requested an adjournment after the judge gave their decision in response to the bad character application and the hearing was paused. When the hearing resumed, the defence requested a re-arraignment. The Defendant changed his plea to guilty and he was subsequently sentenced on 4 September 2024.

4. The litigator sought remuneration on the basis of a 1 day trial. The determining officer considered that the trial had not started, and a cracked trial payment was made. The trial type remained following the redetermination and the litigator sought written reasons as to why a trial fee has not been allowed. The Respondent relies on those written reasons in response to this appeal. Claim

5. The question to be decided in this appeal is whether the proceedings on 4 September 2024 amount to a trial, as claimed, or not, so that only a cracked trial fee is payable, as assessed.

6. The Respondent gave prior notice of their intention to rely on the determining officer’s written reasons dated 2 December 2024. There was no attendance at the appeal on behalf of the Respondent, nor any further written submissions.

7. The litigator appellant is represented by counsel Mr Garcha, whom incidentally was trial counsel in the underlying action and has himself been remunerated on the basis of a trial rather than cracked trial. Relevant Legislation

8. The relevant legislation is the Criminal Legal Aid (Remuneration) Regulations 2013. Of particular relevance is paragraph 1 of Schedule 2 to the Regulations. Submissions Respondent

9. As outlined above, the Respondent relies solely on the written reasons dated 2 December 2024.

10. The written reasons cite the absence of a single definition within the regulations of what constitutes a trial, or the start of a trial. Reliance is therefore placed in historic costs decisions.

11. Particular reliance is placed in the case of Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) , and the guidance proffered by the High Court therein at paragraph 96 which is quoted and therefore repeated below: “96. I would summarise the relevant principles as follows: (1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun. (2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by a defendant, or a decision by the prosecution not to continue ( R v Maynard, R v Karra ). (3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes ( Meek and Taylor v Secretary of State for Constitutional Affairs ). (4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty (R v Brook, R v Baker and Fowler, R v Sanghera, Lord Chancellor v Ian Henery Solicitors Ltd [the present appeal]). (5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case, and the leading of evidence ( R v Dean Smith, R v Bullingham, R v Wembo ). (6) If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense. (7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense. (8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the determining officer, as Mitting J did in R v Dean Smith , in the light of the relevant principles explained in this judgment.

12. To quote further from the written reasons, the Respondent argues that: “In this case, the jury were never sworn. This is not a case where submissions were made in a continuous process resulting in the empanelling of the jury, the opening of the case and the leading of evidence (sub-paragraph 5). Nor is it a case where an indication of the judge’s view has determined the matter (sub-paragraph 8) as the judge’s view was not sought. This is a situation where, per sub-paragraph 7, the case must be reviewed after the event to see how the events unfolded to determine whether there has been a trial in any meaningful sense – i.e., whether or not this is a case falling within sub-paragraph 4. Having undertaken such a review, the determining officer is unable to identify, from the events that took place, that a trial took place in a meaningful sense. There were case management issues dealt with over 04/09/24, but the question to be determined is whether or not they were so substantial as to indicate that the trial had started in a meaningful way. The determining officer does not consider that they were. Having determined that the trial did not start in a meaningful way, the only fee that the determining officer can appropriately pay is the cracked trial fee.” Appellant

13. Counsel Mr Sukhdev Garcha was the defence trial counsel and confirmed he had already been remunerated on the basis of a one day trial, not a cracked trial. He represented the litigator today in their own appeal against a cracked trial fee.

14. Mr Garcha explained that the prosecution indicated their intention to make a bad character application at the outset of the trial as they wished to rely on the Defendant’s previous conviction, and the fact that the vehicle registered to the Defendant was linked to the supply of drugs.

15. The defence did not oppose the application being heard at the outset, but did otherwise oppose the application for bad character and a response to the prosecution bad character application was uploaded in readiness for the court to hear the application.

16. Mr Garcha confirmed that because the prosecution sought to raise bad character in their opening statement, the parties agreed a judicial ruling was first required in respect of the application to adduce the previous conviction of the Defendant as well as evidence relating to the vehicle having drug ‘markers’.

17. The subsequent application was brought on two limbs; propensity and important issue. The application was opposed on its terms, and in the alternative that the evidence be excluded on the basis its admission would be prejudicial and render the trial unfair.

18. Mr Garcha explained that submissions were subsequently heard from the prosecution and defence, and the application was allowed not under the ‘propensity’ gateway, but under the ‘important issues’ gateway - namely that the vehicle driven by the Defendant at the time of his arrest had drug supply markers on it, and the Defendant’s phone contained messages between the Defendant and co-defendant as to how to go about getting the drug markers removed in respect of the said vehicle.

19. After that decision, Mr Garcha explained that a short adjournment was requested and upon taking further instructions, the Defendant applied for re-arraignment and pleaded guilty to counts that he faced on the case.

20. As well as also citing Henery , Mr Garcha also cited R v Bullingham 2011 in support of the contention that the swearing of a jury is not the conclusive factor in deciding when the trial begins for remuneration purposes. He also cited the importance of considering whether a trial had begun “in a meaningful sense”, rather than swearing in merely being for the convenience of the jurors or so that the legal representatives will be paid a trial fee rather than a cracked trial fee.

21. Mr Garcha further argues Bullingham in support of the contention that if no jury is sworn, but the judge directs that there will be a voir dire involving substantial argument which may affect the evidence that the prosecution can use in the case, the trial starts when s/he gives that direction.

22. Mr Garcha also cited R v Watts (SCCO Ref: 188/15), where the receipt of submissions and provision of court guidance in response was indicative that a trial had begun. In that case, confirmation that the trial had begun was sought from and given by the trial judge, which was also sufficient to conclude that a trial had begun.

23. Mr Garcha additionally cited R v Desmond Kelville (SCCO Ref 232/19), where the court again concluded that where judicial guidance is sought and a preliminary ruling is then provided, the trial will be deemed to have commenced. Quoting from Costs Judge James’ findings in Kelville: “Master Rowley went on to state in R v Coles that to conclude otherwise in those circumstances would penalise constructive, pragmatic advocates unfairly, and would encourage less cooperative advocates, content to rely upon direct judicial intervention as a means of establishing later remuneration. Master Rowley expressed the view (with which I respectfully agree) that such an advocate should not be penalised for trying to find a constructive way through, rather than letting matters take their course at much greater expense, time and trouble.”

24. Mr Garcha then commended the adoption of Costs Judge Leonard’s guidance in R v Dale (SC-2022-CRI-000032) and in particular paragraphs 38-41 of the same: “38. I start by expanding on observations I have made in several recent judgments on the question of whether a trial has started. Arguably, the “substantial case management” criterion will only be met if the court itself engages in substantial matters of case management. As I have said before, it seems to me that that must be what Spencer J had in mind in Lord Chancellor v Henery .

39. A number of judgments at Costs Judge level have however accepted that “substantial matters of case management” may in effect be delegated by the court to Prosecution and Defence counsel, who may resolve them through discussion rather than through active intervention by the trial Judge, and that in such circumstances a trial may be said to have started in a meaningful sense.

40. In principle I do not disagree, but many appeals are now presented on the basis that almost any discussions between Prosecution and Defence on the date set for trial involve “substantial matters of case management”. That is not the case. Proper regard must be had to the nature of the discussions.

41. “Substantial matters of case management” ( R v Wood (SCCO 178/15)) must involve significant issues concerning the conduct of the trial which, if not agreed, would fall to be determined by a ruling from the trial judge. That does not extend to any other discussion between Prosecution and Defence, even if the subject matter (such as negotiating a basis of plea or, as in Lord Chancellor v Henery , a change to the indictment) can be said to be important in a wider sense. To broaden the definition of “substantial case management” to that extent is to depart from the guidance of Spencer J””

25. By way of a further and final example of the relevance of where no jury was selected or sworn, Mr Garcha cited R v Gordon Lamonby (SC-2023-CRI-000053), where Costs Judge Whalan concluded that where a joint meeting of experts had taken place during which both experts were informally questioned, that meant that matters amounting to ‘substantial matters of case management’ had taken place with the consequence that the trial, whilst necessarily short, was still a trial for remuneration purposes. Analysis and decision

26. Both parties accept that for the purpose of remuneration, “trial” is not defined in the regulations, but some assistance is provided in determining when a trial has begun from previous appeal decisions. Both parties rely on the guidance in Henery in particular (see quoted paragraph 96 of that decision above).

27. I concur, as per Henery , Kelville , Dale and Lamony that one should not automatically conclude that a trial had not begun in a meaningful sense solely because the prosecution had not yet opened its case, or the jury had not yet been selected and sworn in.

28. Further, an e-mail from a court clerk stating that substantial matters of case management took place is no more persuasive than the absence of such an e-mail. The court must consider what factually took place.

29. In that regard, there can be no doubt that a bad character application was advanced and legal arguments heard in connection with the same. A ruling was sought from the trial judge in that regard.

30. Where judicial guidance is sought and provided by the judge (as in this case) then a trial has begun in a meaningful sense. If a determination is sought from, and made, by the trial judge then a trial may be said to have begun in a meaningful sense.

31. I am inclined to agree with Costs Judge Rowley’s observations in Coles that one must be careful to avoid penalising constructive, pragmatic advocates, or encourage uncooperative advocates who are content to rely upon direct judicial intervention as a means of establishing later remuneration. The consequences of such conduct cannot thereafter be applied to the advocate and not the litigator firm providing instructions and out of court representation.

32. The guidance at paragraph 96(6) of Henery includes that “If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense.”

33. The prosecution elected to make a bad character application at the outset of the trial. The application relied on two key aspects which sought to establish a link between the Defendant and the offence for which he was being tried. The first was the drug markers relating to a vehicle the Defendant was said to be in control of. The second related to phone messages passing between the Defendant and co-defendant said to relate about removal of drug markers from the vehicle.

34. The term ‘drug markers’ denotes a vehicle that has previously been linked with possession of a prohibited substance such that a vehicle with drug markers is likely to be more frequently stopped or draw attention than one which has no drug markers, hence the potential relevance of discussions about the removal of such markers. A law abiding citizen has legitimate reasons for investigating or communicating with others as to the removal of drug markers from a vehicle they own or operate. An individual with nefarious intentions such as the transportation of drugs has an interest in evading detection or otherwise avoiding police attention by the removal of drug markers.

35. I accept Mr Garcha’s submission that it not unusual for a bad character application to be made, but that it is unusual for such an application to be made at the outset with the intention of referral by the prosecution as part of their trial arguments.

36. In my view, the prosecution application sought guidance from the trial judge and that guidance was provided in the making of decisions material to the outcome of the trial. In that sense I have no hesitation in concluding that the trial had begun in a meaningful sense, the issue of admissibility of evidence also amounting to substantial case management.

37. Further, the Defendant’s legal team should not suffer prejudice in terms of remuneration where their conduct was not to oppose the application being heard at the outset. As many of the historic case decisions referenced above have recognised, there is no utility in an interpretation which would effectively discourage cooperation and best practice conduct simply in order to achieve a reasonable level of remuneration. Costs

38. The Appellant’s appeal costs are summarily assessed in the sum of £750 (to include counsel’s fee for today and the £100 appeal fee). COSTS JUDGE NAGALINGAM