A criminal defence firm has succeeded in its legal aid appeal after arguing that a retrial 20 months after the first should be treated as a separate trial. 

Birmingham-based firm Hussain Solicitors represented a legal aid client who was charged with offences including conspiracy to steal vehicles and conspiracy to conceal, disguise or convert criminal property. His trial started in March 2022 and was aborted the following month ‘due to a reducing number of jurors (mainly through illness) and to evidential problems’. The jury was discharged.

The trial was relisted for January 2024 with a new trial judge and the defendant was represented by another firm of solicitors. He was convicted in February of that year. 

The Legal Aid Agency’s determining officer concluded that only one trial had taken place, and no fee was payable to Hussain Solicitors. The firm appealed.

Costs judge Leonard in R v Sandel said: ‘There will be cases in which, in all the circumstances, (a) it is right to conclude that an order for a retrial has been made, whether in writing or not and (b) it is right to conclude that the second “leg” of a trial is a retrial, whether or not the first trial ran its course. Both conclusions are appropriate in this case.’

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He added that the ‘very long interval’ between the first trial ending and the second beginning as well as the ‘change of both judge and defence team', meant 'it is quite unrealistic to characterise the January 2024 hearing as anything other than a retrial’.

Allowing the appeal, the judge said: ‘It cannot sensibly be said that the January 2024 trial formed part of the same procedural and temporal matrix as the March/April 2022 trial.’

The judge ordered the ‘appropriate additional payment’, £1,500 costs, plus VAT, and the £100 paid on appeal should be made to Hussain Solicitors.