R v Choudhry Hussain

Background

1. The Defendant was convicted of a number of serious sexual offences against a child and was on bail up to and during the course of the trial.

2. The Defendant sought leave from the Trial Judge to attend a funeral, said to be scheduled to take place in the West Midlands. Leave was granted, whilst as a condition of bail the Defendant had been required to surrender his passport.

3. The Defendant falsely told police he had lost his passport and had applied for a replacement, which he intended to surrender on receipt. It transpired the Defendant had lied to the Trial Judge about the funeral, and to police about losing his passport.

4. The Defendant flew to Amsterdam, and then on to Pakistan, remaining at large for around four years. In his absence, the Defendant was found guilty and convicted to 19 years imprisonment.

5. Following the issuance of an international arrest warrant, the Defendant was remanded in custody for around one year in Pakistan before being extradited to the UK on 27 January 2020.

6. The Defendant subsequently pleaded guilty to contravening section 6 of the Bail Act for which a one third reduction led to a sentence of 8 months imprisonment for that offence alone, to be served consecutive to the 19 year sentence already imposed.

7. An appeal against the s6 Bail Act conviction followed, on the grounds that the Crown Court did not have jurisdiction to address the Bail Act offence because the necessary conditions of the Extradition Act 2003 were not met, such that the conviction should be a nullity.

8. A request was made to join the appeal against conviction to an existing appeal against the 8 month sentence, such that the Court of Appeal could hear both appeals together on the basis that if the appeal against conviction was successful, then the appeal against sentence could be withdrawn. Claim

9. The Appellant submitted a claim for £237.59 plus VAT to the registrar of the Court of Appeal (criminal division) for taxation, who referred the claim to the Legal Aid Agency who rejected the claim. Relevant Legislation

10. The Criminal Legal Aid (Remuneration) Regulations 2013, schedule 3, paragraph 1 provides: “1.—(1) The provisions of this Schedule apply to proceedings in the Court of Appeal. (2) In determining fees the appropriate officer must, subject to the provisions of this Schedule— (a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and (b) allow a reasonable amount in respect of all work actually and reasonably done.” Submissions

11. The Respondent has confirmed they do not wish to attend the hearing of this appeal and have not submitted any written submissions for the hearing. They rely on the written reasons of the Determining Officer in the Criminal Appeals Office, dated 3 September 2024.

12. Mr Rose appeared on behalf of the appellant litigator firm and considers the position adopted by the Respondent is a result of confusion.

13. Mr Rose explained that his firm did not act for the Defendant in the original crown court proceedings. He accepts and acknowledges that the Defendant’s previous litigator received remuneration under CRM 1 and 2 for advice and assistance, which covered fees up to (but not including) the lodging of an appeal and not beyond.

14. Mr Rose submits that none of the work now claimed was for work done prior to lodging the appeal against sentence. Thereafter, citing the appeal against conviction, Mr Rose observed that the underlying chronology was unusual in that this began as an appeal against sentence but during the course of that process, it was established there may be an issue with the conviction itself.

15. It is the additional work regarding an appeal against conviction with which this remuneration appeal is concerned.

16. Mr Rose accepts his firm has no recourse to the Legal Aid Agency for the costs in dispute. Instead he relies on paragraph 9 of the judgment of Lady Justice Andrews (sitting the Court of Appeal, Criminal Division) in which she concluded: “We note that there does not appear to have been a representation order granted by the Registrar for the Appellant’s counsel and solicitors to have advised on the appeal and settled the Advice and Grounds of Appeal, which have succeeded in the conviction appeal. For the avoidance of any doubt, and to make sure that there is due payment for the work that was done, we will grant a representation order for solicitors and counsel for that work.”

17. Mr Rose advised that the Defendant’s counsel, Nick Beechey, has been remunerated pursuant to the representation order granted, and confirmed there was no representation order prior to one issued by Court of Appeal.

18. Mr Rose is clear that this fee appeal concerns only the appeal against conviction, and is also clear his firm have no recourse to LAA because he accepts he has no representation order from the LAA for the work done.

19. Instead, he relies the Court of Appeal’s making of a representation order of its own volition. Analysis and decision

20. It is not unusual for the Court of Appeal to address the issue of funding especially when the hearing concerns leave to appeal and/or representation. What perhaps is unusual is to extend the making of that order to cover remuneration of the litigator as well as counsel.

21. The fact is the Appellant in this matter accepts the limitation of the Legal Aid Agency funding arrangement in this matter, and does not seek a penny under the same. The fees in dispute were incurred solely in relation to an appeal against conviction, which was added to the hearing of an existing appeal against sentence.

22. There is a clear judgment from the Court of Appeal granting a representation order for the solicitor to do the work and, like counsel, the litigator should be remunerated accordingly. Paragraph 9 of the judgment dated 17 July 2024 is a “relevant circumstance” and £237.59 plus VAT represents “a reasonable amount in respect of all work actually and reasonably done”.

23. As such, the appeal is allowed in the amount claimed. Costs

24. I allow £250 in addition for the costs of the appeal on a fully inclusive basis. COSTS JUDGE NAGALINGAM