A firm has successfully appealed a decision only to award it the costs of a cracked trial after it defended a bad character application prior to a jury being sworn in.

Harwood Solicitors was representing Jamal Miah, a man charged with one count of conspiracy to commit 13 burglaries in 2023.

Before the jury was sworn in for Miah’s trial, counsel for the defence asked the trial judge, His Honour Judge Jeffries, to rule on the prosecution’s bad character application, at a hearing on 11 June last year. Jeffries ruled Miah’s previous convictions for burglary should go before the jury, after which Miah admitted the offence, subject to a basis of plea, and was sentenced. The judge declined to formally order day one of trial, stating ‘it defies logic’ as there had not been a trial. 

Subsequently, the determining officer decided to calculate Harwood’s litigator graduated fees on the basis of a cracked trial rather than a trial fee as set out in the Criminal Legal Aid (Remuneration) Regulations 2013. Harwood appealed.

Senior Costs Judge Rowley, in the Senior Courts Costs Office, said: ‘The judge’s comment in this case is redolent of the traditional view that a trial cannot possibly begin until the jury has been sworn, et cetera. In relation to the running of Crown courts, that is, no doubt, an entirely understandable description. However, for the purposes of the 2013 regulations, the situation is more nuanced.’

Rowley said a transcript which showed defence counsel had submitted a bad character application would usually be dealt with after the prosecution’s case had concluded, but the trial judge had agreed it would be ‘very sensible’ for it to be dealt with prior to the jury being sworn.

Allowing the appeal, Rowley concluded: 'I do not accept the determining officer’s characterisation of that application as being a pre-trial application nor the conclusion that, as such, it was not capable of being substantial case management, such that the trial had effectively begun.'

The costs judge ruled that he graduated fee should be calculated on the basis of a trial fee rather than a cracked trial fee. Harwood was also entitled to costs in respect of the appeal.