Court Rules in Favor of Determining Fee for Guilty Plea over Cracked Trial in R v Massey Appeal

Citation: [2023] EWHC 3365 (SCCO)
Judgment on


The case of R v Massey ([2023] EWHC 3365 (SCCO)) before the High Court of Justice’s Senior Courts Costs Office involves a dispute over legal fees assessed under the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal by Gray & Co solicitors addressed whether the fee payable for their client Jeffrey Massey should be calculated based on a cracked trial or a guilty plea. Costs Judge Rowley examined the definitions and implications of these classifications within the current legal framework.

Key Facts

Jeffrey Massey faced charges of indecent assault and indecency with a child, with his case marked by two Pre-Trial Preparation Hearings (PTPH). Initially, no plea was entered, and a trial date was set due to counsel’s absence during the bar strike. Subsequently, at a later PTPH, Massey pleaded guilty. The solicitors argued that the fee should be assessed as a cracked trial, while the determining officer assessed it as a guilty plea fee. Gray & Co appealed, citing that the circumstances matched the cracked trial criteria. However, the appeal was dismissed by Costs Judge Rowley, who agreed with the determining officer’s assessment.

The appeal centered on the interpretation of “cracked trial” as defined in the 2013 Regulations. The regulation states that a cracked trial is one where an initial not guilty plea changes before the trial or no evidence is offered by prosecution. Crucially, the case must not proceed to trial for reasons other than a guilty plea (paragraph 4).

Costs Judge Rowley’s decision references Costs Judge Leonard’s precedent in R v Jarir ([2022] EWHC 2231 (SCCO)), which clarified that a hearing where a trial date is set but no plea is entered does not automatically fulfill the criteria for a cracked trial (paragraph 9). Costs Judge Brown’s analysis in R v Lamin (175/19) further elaborated on the distinction, emphasizing the importance of whether a plea is entered at all before the trial (paragraph 11).


Ultimately, the appeal was unsuccessful. The determining officer had concluded, and Costs Judge Rowley concurred, that the second PTPH, where Massey entered a guilty plea, determined the fee as that of a guilty plea rather than a cracked trial. The legal principle applied was that if the defendant never pleads not guilty, even if the trial date is set without a plea, and later pleads guilty, the appropriate fee is for a guilty plea.


In the judgment of R v Massey, Costs Judge Rowley upholds the established legal principles and precedents regarding the classification of cases for the purpose of assessing legal fees. The key takeaway is the clarification that the presence of a set trial date during a PTPH where no plea is taken does not meet the threshold for a cracked trial fee if the defendant subsequently pleads guilty before the trial proceeds. This ensures a clear application of Regulations and precedents in the assessment of legal fees within the realm of Criminal Legal Aid.

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