Key Facts
- •Appeal against the determining officer's decision to calculate counsel's fee for intentional strangulation (s75A Serious Crime Act 2015) using band 3.4 of the Advocates Graduated Fee Scheme (AGFS).
- •Defendant charged with four counts: assault, assault occasioning actual bodily harm (s47 OAPA 1861), common assault (s39 Criminal Justice Act 1988), and intentional strangulation.
- •Counsel chose intentional strangulation for fee calculation; determining officer used band 3.4, counsel argued for 3.3.
- •Offences not explicitly banded in AGFS are allocated to band 17.1; reclassification can be requested.
- •Relevant case law: R v Cook [2023] EWCA Crim 452 considered the seriousness of intentional strangulation.
Legal Principles
For multiple counts, the advocate chooses the count for fee calculation.
Advocates Graduated Fee Scheme (AGFS)
Offences not in the banding document are allocated to band 17.1; reclassification is possible.
Advocates Graduated Fee Scheme (AGFS)
The severity of the crime in an individual case does not affect the band applied if the offence is in the banding document.
Costs Judge Rowley's judgment
When comparing offences for banding, the 'average' offence should be considered, not extreme examples.
Ms Weisman's submission
Sentencing tariffs and mode of trial are useful indicators when comparing offences for banding.
Ms Weisman's submission
Intentional strangulation, while serious, is considered closer in severity to common assault or ABH than to s18 OAPA 1861.
Costs Judge Rowley's judgment
Outcomes
Appeal dismissed.
The determining officer's use of band 3.4 for intentional strangulation was correct. The Court of Appeal's decision in R v Cook, while highlighting the seriousness of strangulation, didn't necessitate a higher band than 3.4, given the comparison with s21 OAPA 1861 (also band 3.4) and the consideration of sentencing tariffs.