R v Adam Humphreys

Background

1. The Defendant was charged with 3 counts of making indecent photographs of children, contrary to section 1(1) (a) of the Protection of Children Act 1978 in that between 25 January and 23 April 2020 he made indecent photographs of children, namely: a. 46 still images and 1 moving image of category A. b. 128 still images and 6 moving images of category B. c. 654 still images of category C.

2. The Defendant was also charged with a 4 th count of possession of prohibited images of children, contrary to section 62 of the Coroners and Justice Act 2009 in that between 25 January and 23 April 2020 he possessed 45 prohibited images of children.

3. The case was originally called for trial on 26 April 2023 but was abandoned on 27 April 2023 for the reasons set out below. When the case was called on for a second time, the Defendant elected to plead guilty on all 4 counts. Claim

4. Counsel Ms Ilana Davis claimed a fee for a 2-day trial having appeared on 26 and 27 April 2023 (as detailed below). Her fees are not the subject of this appeal.

5. The Appellant was instructed to appear at second hearing on 30 and 31 October 2023 but claims a crack before re-trial fee. The Appellant’s claim was refused by the Legal Aid Agency for the reasons set out below. Submissions

6. Mr Binks presented arguments on behalf of the Appellant, Mr Berry. The Respondent elected to be unrepresented and has not filed written submissions specific to this appeal. Instead the rely on the Determining Officer’s written reasons.

7. The trial of this matter was originally listed with a time estimate of 2-3 days, commencing on Wednesday 26 April 2023. Counsel Ilana Davis was instructed to appear for the Defendant and the hearing bundle includes a helpful note from her dated 27 April 2023.

8. The trial was called on 26 April 2023 at approximately 2pm before HHJ Drew. The trial started, jury were sworn and agreed facts read. The issue of duress (which related to count 4 only) was discussed and HHJ Drew indicated he was likely to withdraw a defence of duress from jury consideration because the Defendant had opportunities to report to police during the offending period.

9. At the start of day 2 the Defendant did not attend court due to illness. The Judge advised he could not sit the following week and having decided that the trial could not be concluded in time, i.e. by 28 April 2023, the jury was discharged.

10. A new trial date was listed for 30 October 2023 with a time estimate of 2 days. Ms Davis recorded that agreed facts 10 and 11 were later added to DCS, but that agreed fact 11 was subject to the defence seeing the evidence from which fact 11 was drawn because no such evidence had been served. The reports referred to in the SFR had not been served either at the point of Ms Davis’ involvement.

11. Ms Davis’ note was prepared on the basis that she knew she would not be the advocate at the 30 October 2023 hearing. She suggested that an addendum defence be prepared which made clear the Defendant relied on the defence of duress for count 4. Ms Davis also warned of the risk of the prosecution obtaining more evidence about attributing phone usage to the Defendant around the times the indecent images were accessed. This related particularly to fact 11.

12. It is also relevant to note that the new trial date was set in the knowledge that HHJ Drew would not be hearing the case any further.

13. Mr Binks cited the reasons for refusal given on 21 December 2023, where the Respondent relied on the decision in R. v Forsyth (2010) which the Respondent summarised as: “..it was held that in order for a trial to be considered a retrial there must be an order for a new trial or the trial must have run its course without the jury reaching its verdict.”

14. The Respondent refusal was on the following basis: “Incorrect trial advocate: We refused your claim because court records show a different advocate was the trial advocate for the case. Please submit the claim again with the correct trial advocate details or include evidence to support why you think the court records are wrong. Other: Continuous proceedings - no retrial ordered and trial did not run its course. Must be claimed by Trial Advocate present at 26/04/2023 as additional hearings.”

15. In support of this appeal Mr Binks submits there is no requirement for there to be an order for re-trial.

16. As to the length of time, Mr Binks observed that in excess of 6 months passed between 27 April 2023 and 30 October 2023. He referred to the Legal Aid Agency having guidelines which reflect scenarios in which the gap between trials is longer than 6 months, and that their written reasons erroneously reference a gap of less than 6 months. Whether any such guidelines exist, my decision below is based on my assessment of the relevant facts in this appeal.

17. Mr Binks wished to draw a distinction between two different scenarios, using examples he provided. He sought to contrast a trial running for 1 day which endured a 6 month hiatus before being called back for another 1 day trial, with a trial running for 5 months which endured a 5 month hiatus before resuming for a further 5 months.

18. Mr Binks argues there must be some consideration as to what was actually achieved before the break happened, and what needed to occur for the further trial to proceed.

19. Mr Binks invites me to account for a number of factors. Firstly, that the stating of the prosecution case had not yet concluded. Secondly, that the duress point was a core factor which was not fully explored at the first trial. Thirdly, that the Defendant had 4 witnesses he wanted to call who were not available at the first trial. Fourthly, the relative length of trials 1 and 2.

20. Mr Binks also cited that there had been a change of advocate for both prosecution and defence, a change of judge, and a new jury sworn.

21. He accepts such changes may not necessarily be determinative but he submits they are indicative of two separate trials, and that it is important that at the time of relisting it was known Ms Davis would not be able to attend the 30-31 October 2023 dates, such that it was known a completely new advocate would need to be instructed.

22. As to terminology, Mr Binks submits that the language of a trial and new trial is less important than what factually occurred. Here, a hearing started for one afternoon and then abruptly stopped. There was a break of more than 6 months before the matter came back before the court in front of a new judge, new jury, and new advocates for both parties.

23. Mr Binks argues this was more of a re-start than a continuation and that the temporal matrix has absolutely been breached.

24. Mr Binks also cited a change in advocate as a “very good reason” to allow this appeal on the basis that if the Respondent is correct, there would never be a mechanism to adequately remunerate the second advocate for their work. The first advocate is not obliged to share their fee with the second, and the second advocate would be paid on the basis of a daily rate only.

25. Citing R v Howitt (SCCO 286/12), Mr Binks relied on the comments of Master Simons’ comments: “I consider that it is important to look behind the reasoning for the regulation which reduces the second trial fee by 25%. This is because it is likely there will be a duplication of work… Where a trial has not run its full course, and in this particular case it was because of a failing in the prosecution, and an additional amount of work had to be carried out by the solicitors... it would be grossly unfair for this list as to receive a reduced fee for a greater amount of work”.

26. Mr Binks submits that the Respondent is asking for a “grossly unfair” result and questioned why any counsel faced with this scenario again would accept instructions in these circumstances.

27. In the absence of representation today for the Respondent, I am bound to consider the written reasons dated 13 May 2024. These reflect that “The advocate’s claim was refused on the basis that the events of 30/10/23 were considered to form part of the same trial matrix as the events in April 2023 so that the fee would need to be claimed by Ms Davis”.

28. I do not propose to extensively quote from the written reasons but I confirm I have taken the same into account when making my decision below. Analysis and decision

29. I note from the written reasons that the Respondent accepts that a change of judge may be indicative of two trials rather than a single trial. The Respondent also accepts that a change of trial advocate may also be indicative of two trials rather than a single trial.

30. The Respondent does not appear to have acknowledged there was a change of prosecution advocate in addition, nor do they appear to have accounted for the fact that this appeal features both a change of judge and a change of both advocates, plus a new jury.

31. There can be no doubt that the first hearing had not run its course. However, I do not consider the gap and change of circumstances between the first and second hearings can reasonably be described as merely a break in this matter. In any event, I consider the Respondent has unfairly characterized the two hearings as first and second legs of the same hearing.

32. I refer to the note of Ms Davis as being the only record of what was said of the circumstances leading to a second hearing. The note demonstrates that HHJ Drew was concerned that there was insufficient time to conclude the trial and for the jury to have sufficient deliberation time. He therefore chose to discharge the jury and identify a new date for trial.

33. I consider there was a deliberate decision to list the new hearing for 2 days, which took into account the evidence that would need to be presented and heard. This included discounting time for witness evidence on behalf of the Defendant, and makes no mention of any time benefit gained from the events of 26 April 2023.

34. Further, and importantly in my view, HHJ drew listed a new trial date in full knowledge that defence counsel would not be able to attend on the listed dates of 30-31 October 2023, that he himself would not hear the case any further, and that an entirely new jury would be sworn.

35. I accept that HHJ Drew was not asked to address the issue of whether or not the second trial was a new trial or whether it was a re-start/re-listing. However, given he knew that the second hearing would be before a different judge, a different jury and different advocates, there is a strong inference the intention was that the trial due to commence on 30 October 2023 would be a new trial.

36. The Respondent relies on the wording of schedule 1, paragraphs 2-3 of The Criminal Legal Aid (Remuneration) Regulations 2013. However, they do not account for this section applying where “the same trial advocate appears at both trials”. That is plainly not the scenario here. Whether by accident or design, the Respondent’s approach has been very much on the basis that Ms Davis was the advocate for both hearings, or that Ms Davis should claim fees for the 30 October 2023 trial despite not being instructed to appearing.

37. Thereafter I am not aware of, nor have I been directed to, any mechanism for the equitable sharing of fees. I suspect that is because no such mechanism exists and indeed I would not expect it to.

38. I also concur with the reasoning of Master Campbell at paragraph 46 of R v Nettleton (SCCO 58/13) where he reflected: “This was not a case of picking up from the position reached on the last occasion as part of a continuous process, but, on the contrary, was one of starting again with a new judge, new jury, and for some, new counsel. When that factor is added to the temporal position, specifically that the resumption was nearly 4 months after the proceedings… I am satisfied that the LSC is mistaken in its view there was only one trial.”

39. It would represent something of a lacuna in the regulations if the specific circumstances which arose in this matter means that Mr Berry is only entitled to remuneration as though he were in fact Ms Davis.

40. In any event, I disagree that the 30 October 2023 trial could not be considered a new hearing. None of the original jury were present. A new judge was presiding. Each party had a new advocate, both of whom would have been completely new to the case. The notion of a temporal matrix assumes the same legal representative has been retained in order for the matrix to be broken (whether by the passage of time, change of case or otherwise). In principle, the same effect is caused by a change of advocate in these circumstances because they were not briefed for or involved at all in the first hearing.

41. Were the regulations intended to operate in the manner the Respondent contends for, then the likes of Mr Berry would simply decline instructions faced with the same set of circumstances. That would create a scenario by which new trials could only ever be listed with regard to the original advocate’s availability, and I do not consider the regulations were intended to frustrate the administration of justice.

42. In all the circumstances, the appeal is allowed and the Appellant should be remunerated accordingly. Costs

43. Allow £500 plus VAT plus court fee. COSTS JUDGE NAGALINGAM