R v Avery: Significance of Offence Classification in Legal Aid Remuneration

Citation: [2023] EWHC 3131 (SCCO)
Judgment on

Introduction

The case law of R v Avery [2023] EWHC 3131 (SCCO) presents an appeal in the context of criminal legal aid remuneration wherein the classification of a newly legislated offence under the Advocates Graduated Fee Scheme (AGFS) is examined. The appeal, which stems from the decision regarding counsel’s fees, specifically explores the classification of the offence of intentional strangulation contrary to section 75A of the Serious Crime Act 2015. The legal document provides a detailed analysis of the considerations for banding offences under AGFS and the application of legal principles to ensure equitable remuneration for legal advocacy services.

Key Facts

In R v Avery, Counsel Williams Dudley’s appeal objecting to the determining officer’s decision focused on the appropriate banding of the offence of intentional strangulation for the purposes of calculating counsel’s fee. The AGFS assigns bands to various offences which, in turn, determine the graduated fee to be paid for advocacy. Due to the novel nature of the offence under review, it had not been classified in the banding document at the time. Various arguments were advanced regarding its severity and the correct banding necessary to ensure appropriate remuneration for the advocate’s services based on similar existing offences and the new offence’s nature.

The following legal principles played a pivotal role in the analysis:

  1. Classification of New Offences: The framework for banding offences under AGFS, particularly how new or recent offences that are not already classified should be handled. Such offences are defaulted to band 17.1 or can be reclassified upon request.

  2. Comparative Offence Severity: When existing bands do not cover a new offence, it necessitates comparing the new offence to the closest equivalents within the AGFS banding document, considering factors like intent, actual harm, mode of trial, and statutory sentencing tariffs.

  3. Systematic Approach to Graduated Fees: The uniform application of the AGFS, where individual case circumstances are generally not considered, aiming for a mechanistic, rather than case-specific, calculation of fees.

  4. Interlocutory Decisions: The role of such decisions from higher courts, like the Court of Appeal in R v Cook [2023] EWCA Crim 452, and their pertinence in elucidating the severity of offences and guiding the classification within the AGFS.

Outcomes

Costs Judge Rowley dismissed the appeal and confirmed the determining officer’s decision to classify the offence of intentional strangulation under band 3.4. The judge determined that the AGFS’s mechanistic approach does not take individual case circumstances into account. It was reasoned that the closest comparator for the offence of intentional strangulation was s21 Offences against the Person Act 1861, which is classified in the same band 3.4. Furthermore, Court of Appeal’s guidance in R v Cook was considered, which suggested that the new offence was more serious than assault occasioning actual bodily harm, yet not akin to the severity required for a classification with offences carrying a life sentence.

Conclusion

In R v Avery, the decision underscores the standardized criteria underpinning the AGFS, where new offences are systematically assessed against existing classifications to ensure consistency in legal aid remuneration. The reliance upon comparative analysis with established offences, sentencing guidelines, and the mode of trial highlights the EWHC’s approach in ensuring that this new offence was banded in a manner reflective of its severity and intent as understood by current legal standards and recent Court of Appeal decisions. The analysis in this case illustrates the complexities involved in setting precedents for the banding of new offences and reaffirms the standardized approach in calculating legal advocacy fees within the context of the AGFS.