R v Mullen

1. The Appellant solicitors represented Jordan Mullen (“the Defendant”) in proceedings before the Crown Court at Birmingham. The defence was funded by Criminal Legal Aid under a Representation Order dated 5 January 2023 and the Appellant is entitled to payment from public funds in accordance with the Litigators’ Graduated Fee Scheme at Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, as in effect on that date. Rules and Authorities

2. Schedule 2 starts at paragraph 1(1), with this definition: “In this Schedule— ‘case’ means proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment…”

3. The particular significance of that definition, for the purposes of this appeal, is that payment may be calculated on the basis that there was more than indictment, and so more than one “case”, against a given defendant. For example, if an indictment against a defendant is severed into two separate indictments, there may be two “cases” under the regulations and payment stands to be calculated accordingly. In contrast, if two separate indictments against a given defendant are joined into one, then there may be only one “case” against that defendant.

4. The appeal turns on whether there was (as the Determining Officer found) only one indictment, or there were two indictments, and so (as the Appellant contends) two “cases”, against the Defendant. It is the Appellant’s position that in consequence of the stay of indictments and the preferring of others, there were two cases. On the basis that there was one indictment, only one fee has been paid. The Procedural History of This Case

5. I am obliged to Mr McCarthy, representing the Appellant, for much of this summary of the facts of this case.

6. The first indictment against the Defendant was uploaded to the Crown Court’s digital case management system (“CDCS”) on 2 February 2023. It charged the Defendant with two counts of conspiracy to supply diamorphine and crack cocaine between 17 May 2017 and 21 January 2020. Ten co-conspirators (along with “others unknown”) were named, but not charged, on the indictment. The indictment itself is marked on the CDCS as ‘the first indictment’.

7. On 1 March 2023, the Crown uploaded to the CDDS a new 12-count indictment, marked ‘additional indictment’. The first two counts, this time against the Defendant and the same ten co-conspirators named on the first indictment, were again of conspiracy to supply diamorphine and crack cocaine between 17 May 2017 and 21 January 2020. None of the remaining counts (of conspiracy to supply Class A drugs and converting/transferring criminal property) were against the Defendant. I understand that this indictment was also marked on the CDCS as stayed.

8. On 16th March 2023 the Defendant appeared before HHJ Carr. On the same date, the Crown uploaded what was, I understand, intended to be ‘a proposed amended indictment’. In fact, two indictments appear to have been uploaded at the same time. Both were 15-count indictments in which only the first two counts (again of conspiracy to supply diamorphine and crack cocaine between 17 May 2017 and 21 January 2020) were against the Defendant, although there were now inconsistencies between the two proposed indictments as to the names of his co-defendants on those two counts.

9. HHJ Carr noted that the case was not in good order and gave leave to prefer a new indictment. I do not believe that I have seen that particular indictment, but as Mr McCarthy says, it would seem to have involved the joinder of defendants. All other indictments were stayed.

10. On 26 April 2023, HHJ Smith KC gave leave to prefer a new,17-count indictment. Again, the two counts against the Defendant (now with 9 of his original 10 co-defendants) were of conspiracy to supply diamorphine and crack cocaine between 17 May 2017 and 21 January 2020.

11. The Defendant entered Not Guilty pleas. That matter went to trial on 28th October 2024 on the basis of an indictment dated 26 January 2024. Again, the two counts against the Defendant were of conspiracy to supply diamorphine and crack cocaine, but the period of the alleged conspiracy had been extended. It was now from 17 May 2017 to 9 December 2022. His named co-conspirators were the same as on the 26 April 2023 indictment, although only three were now named as co-defendants on those counts (presumably because of pleas already entered).

12. The case resolved on 29th October 2024, the second day of trial, and a trial fee was paid to the Appellant. The Claim, Submissions and Conclusion

13. The Appellant claims, in addition to the trial fee already paid, a second fee for one of the stayed indictments, on the basis of a guilty plea on 16 March 2023. This is not consistent with the records I have seen, which indicate that all previous please were vacated before several of his co-defendants entered pleas on the indictment preferred with the leave of HHJ Carr.

14. Mr McCarthy has referred me to a number of Costs Judge decisions on whether there have been two indictments, and accordingly two “cases”, against a given defendant. For present purposes it is sufficient to say that it does not follow, from the fact that one or more indictments have been stayed and another preferred, that more than one fee is payable. The workings of the DCS are such that it may be necessary to stay one or more indictments and prefer another even though there has been no substantive change to the case against a given defendant or defendants; it is a matter of administrative necessity.

15. The consensus among Costs Judges is that, in such circumstances, there is only one “case” and only one fee due. In contrast, if a new indictment represents a substantive change in the nature of the criminality alleged against a given defendant, it may be right to conclude that there has been more than one case against that defendant, and that in consequence more than one fee is payable.

16. In my view (even assuming that the Defendant did enter a guilty plea on 16 March 2023, which on the available evidence, he did not) this was never such a case. Mr McCarthy submits that the March 2023 stay was a judicial act made necessary as a consequence of changes in the case, but the substance of the case against the Defendant had not, at that time, changed at all. Such changes as there had been to the various iterations of the indictment against him concerned his co-defendants.

17. Mr McCarthy also advises me that the volume of served evidence increased substantially after March 2023, but in a situation where the Prosecution had not yet put its house on order, that is scarcely surprising, and I can find nothing significant in it for present purposes.

18. The only change in the case against the Defendant appears to have taken place between April 2023 and January 2024, when the period of the alleged conspiracy was extended by almost two years. That can I think properly be described as a significant amendment to the indictment against the Defendant, but it cannot justify the conclusion that there was ever more than one case against him.

19. For those reasons, this appeal is dismissed.