High Court Allows Separate Attorney Fees in R v Robert Brazendale Amid Evolving Charges and Consolidated Indictments

Introduction

In the matter of R v Robert Brazendale, the High Court of Justice Senior Courts Costs Office grappled with the issue of attorney fees under the Advocate’s Graduated Fees Scheme (AGFS) amidst evolving charges and consolidated indictments. This analysis dissects the court’s decision and the legal principles applied, focusing on the entitlement to separate fees for trial and cracked trial against a backdrop of an ongoing modification of charges and co-defendants.

Key Facts

Counsel Mr. Oliver Cook appealed against the Legal Aid Agency’s decision, contending entitlement to two separate fees under the AGFS—specifically, a trial fee and a cracked trial fee—as opposed to a single trial fee permitted by the Determining Officer. The Defendant, Robert Brazendale, faced serious charges ranging from conspiracy to murder to drug supply. Various iterations of the indictment emerged, changing in response to evolving prosecution strategies and judicial discretion. The court’s task was to determine whether these evolutions signified one continuous case or separate, distinct cases that warranted individual remuneration under the AGFS.

Legal Principals

The heart of this case revolved around the interpretation of the Criminal Legal Aid (Remuneration) Regulations 2013, particularly the definition of a ‘case’ for the purposes of legal aid remuneration. Prior jurisprudence such as R v. Hussain [2011] 4 Costs LR 689 and R v. Ayomanor [2020] indicated a historic mechanical application of the Regulations leading, at times, to the allowance of two fees. Furthermore, recent cases like R v. Wharton [2021] and R v. Thomas [2022] signalled a shift in recognizing the practical realities of Crown Court operations and the fluidity of prosecutions, particularly in light of the Covid pandemic. These recent decisions suggested that the traditional mechanical approach might not hold up when indictments significantly evolve during the course of prosecution.

In Brazendale, the significant question was whether the substantive evolution of the indictments—in terms of defendants involved, charges, and periods of alleged offences—signified one continuous case or distinct cases. The court recognized that this was not a mere technical amendment but a substantial change in the alleged criminality, meriting adjudication as separate cases.

Outcomes

Costs Judge Whalan sided with the Appellant, Mr. Cook, and allowed the payment of two separate fees under the AGFS, labeling the distinct phases of the proceedings as two separate cases. This decision was notably influenced by the comparative analysis of the first indictment (B1) solely listing the Defendant, which transformed into subsequent indictments (B7 and beyond) incorporating additional co-defendants and revised charges. The finality of the judgment crystallized when Kerr J. stayed the previous indictments, further reinforcing that the Defendant faced effectively two separate cases.

Conclusion

The decision in R v Robert Brazendale underscores an evolving legal landscape where the mechanical application of regulations can give way to a more nuanced acknowledgment of the practicalities of prosecution and court practices. The court here affirmed that substantial and substantive changes to legal proceedings—notably, indictments—can establish distinct legal cases for the purposes of counsel remuneration under the AGFS. This case serves as instructive precedent for determining fee entitlements in complex, dynamic criminal proceedings, thus offering guidance for legal professionals navigating similar scenarios in the UK justice system.