Citation, commencement, application and interpretation

1.  This Order may be cited as the Criminal Defence Service (Funding) (Amendment) Order 2007 and comes into force on 14th January 2008.

2.  In this Order a reference to an article or Schedule by number alone is a reference to the article or Schedule so numbered in or to the Criminal Defence Service (Funding) Order 2007(3).

3.  This Order applies to—

(a) proceedings in which a representation order is granted on or after 14th January 2008;

(b) proceedings which the Commission classifies as a Very High Cost Case on or after 14th January 2008.

4.  In article 3 of this Order, a Very High Cost Case is a case in which a representation order has been granted and which the Commission classifies as a Very High Cost Case on the grounds that—

(a) if the case were to proceed to trial, the trial would in the opinion of the Commission be likely to last for more than 40 days, and the Commission considers that there are no exceptional circumstances which make it unsuitable to be dealt with under its contractual arrangements for Very High Cost Cases; or

(b) if the case were to proceed to trial, the trial would in the opinion of the Commission be likely to last no fewer than 25 and no more than 40 days, and the Commission considers that there are circumstances which make it suitable to be dealt with under its contractual arrangements for Very High Cost Cases.

5.  The Criminal Defence Service (Funding) Order 2007 continues to apply as if this Order had not been made in respect of —

(a) proceedings in which a representation order is granted before 14th January 2008,

(b) proceedings which are a Very High Cost Case (as defined in that Order) which is the subject of an individual contract before 14th January 2008 for the provision of funded services.

Amendments to the Criminal Defence Service (Funding) Order 2007

6.  The Criminal Defence Service (Funding) Order 2007 is amended as follows.

7.  In article 2—

(a) after the definition of “trainee solicitor or fee earner of equivalent experience” omit “and”;

(b) for the definition of “Very High Cost Case” substitute—

““Very High Cost Case” means a case in which a representation order has been granted and which the Commission classifies as a Very High Cost Case on the grounds that—

(c) after the definition of “Very High Cost Case” insert—

““Very High Cost Case (Crime) Panel” means a panel set up by the Commission from which representatives may be chosen to provide representation in Very High Cost Cases.”.

8.  In article 3—

(a) in paragraph (4)—

(i) omit “ 7,”;

(ii) omit “, and Schedule 3 to,”;

(b) after paragraph (6) insert—

“(6A) This Order does not apply to Very High Cost Cases.”.

9.  Omit article 5(8).

10.  In article 6—

(a) in paragraph (5), after “A claim” insert—

“under paragraph 15 or 22 of Schedule 2 to this Order”;

(b) in paragraph (6), for “6(1)” substitute “25”;

(c) omit paragraph (9).

11.  Omit article 7.

12.  Omit article 10(2).

13.  For article 12 (1) substitute—

“(1) Where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998(4) (No committal proceedings for indictable-only offences), the payment in relation to work carried out in the magistrates’ court is included within the applicable fee payable under Schedule 1 or Schedule 2.”.

14.  For article 13 substitute—

“13.  Where representation is provided in proceedings referred to in section 12(2)(f) of the Act (proceedings for contempt in the face of a court), the Commission may only fund services as part of the Criminal Defence Service under section 13(2)(b) or 14(2)(b) of the Act in accordance with Schedules 1, 2 and 4.”.

15.  In article 14, after paragraph (6) insert—

“(6A) The appropriate officer must notify the litigator and, where the disbursement claimed includes the fees or charges of any person, that person, of his decision.”.

16.  In article 17—

(a) in paragraph (2)—

(i) after “a claim for fees”, insert “by an instructed advocate, where”;

(ii) in sub-paragraph (a)—

(aa) omit “in the case of an instructed advocate, where”;

(bb) at the end of the sub-paragraph, insert “and”;

(iii) omit sub-paragraph (b);

(iv) in sub-paragraph (c)—

(aa) omit “in the case of a litigator or an instructed advocate, where”;

(bb) in both places where it appears, omit “or (b)”;

(b) in paragraph (3)—

(i) in sub-paragraph (a), for “representatives”, substitute “instructed advocates”;

(ii) in sub-paragraph (b), for “representative”, substitute “instructed advocate”;

(c) in paragraph (5), omit “A litigator or”;

(d) in paragraph (6)—

(i) for “representative”, substitute “instructed advocate”;

(ii) omit “or article 6(3), as appropriate”.

17.  In article 19—

(a) in paragraph (1), omit “A litigator or”;

(b) in paragraph (2)(a), omit—

(i) “litigator or”; and

(ii) “or Schedule 2, as appropriate”;

(c) for paragraph 3, substitute —

“(3) In this article, “preparation” means—

(a) reading the papers in the case;

(b) contact with prosecutors;

(c) written or oral advice on plea;

(d) researching the law, preparation for examination of witnesses and preparation of oral submissions;

(e) viewing exhibits or undisclosed material at police stations;

(f) written advice on evidence;

(g) preparation of written submissions, notices or other documents for use at the trial;

(h) attendance at views at the scene of the alleged offence,

and is limited to preparation done before the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 (commencement of trial and arraignment), in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).”;

(d) in paragraph (4), delete “(a)”;

(e) omit paragraph (5);

(f) in paragraph (7), for “A litigator or” substitute “An”.

18.  Omit article 20.

19.  In article 21—

(a) in paragraph (3)—

(i) after “application for a hardship payment”, insert “by an advocate”;

(ii) in sub-paragraph (a), for “representative” substitute “advocate”;

(b) after paragraph (3) insert—

“(3A) Every application for a hardship payment by a litigator must be accompanied by such information and documents as the appropriate officer may require as evidence of—

(a) the Class of Offence with which the assisted person is charged, in accordance with Part 6 of Schedule 1;

(b) the length of trial, where appropriate;

(c) the number of pages of prosecution evidence, calculated in accordance with paragraph 1(2) of Schedule 2;

(d) the total number of defendants in the proceedings who are represented by the litigator;

(e) the likelihood of financial hardship.”.

20.  Omit article 23(4).

21.  In article 24—

(a) after paragraph (1) insert—

“(1A) Where the appropriate officer determines that the fees payable under paragraph (1) are greater than or less than the amount claimed by the litigator under article 6(1), he must notify the litigator of the amount he has determined to be payable.”;

(b) in paragraph (2)(a), for “and” substitute “or”;

(c) in paragraph (3), omit “or paragraph 14(5) of Schedule 2”;

(d) omit paragraph (4).

22.  In article 27(1), in each place where it appears, omit “, 3”.

23.  In article 29—

(a) for paragraph (1)(c) substitute—

“(c) a litigator is dissatisfied with—

(i) the calculation by the appropriate officer of the fee payable to the litigator in accordance with Schedule 2; or

(ii) the decision of the appropriate officer under paragraph 3(3) of Schedule 2 (reclassification of an offence not specifically listed in the relevant Table of Offences and so deemed to fall within Class H);”;

(b) for paragraph (2) substitute—

“(2) An application under paragraph (1) may not challenge the quantum of any of the fees set out in Schedule 1 and Schedule 2.”;

(c) in paragraph (3)(a) omit “notification of”;

(d) omit paragraph (7)(b).

24.  Omit article 30(15).

25.  In Schedule 1—

(a) in paragraph 1(2), after “prosecution evidence” insert “served on the court”;

(b) in paragraph 2—

(i) in sub-paragraph (1), for “(2)” substitute “(3)”;

(ii) omit sub-paragraph (2);

(iii) after sub-paragraph (8) insert—

“(9) For the purposes of this Schedule, a case on indictment which discontinues at or before the plea and case management hearing otherwise than—

(a) by reason of a plea of guilty being entered, or

(b) in accordance with paragraph 2 (8),

must be treated as a guilty plea.”;

(c) after paragraph 17 insert—

“Fees for contempt proceedings

17A.—(1) Subject to sub-paragraph (2), remuneration for advocates in proceedings referred to in section 12(2)(f) of the Act in the Crown Court must be at the rates specified in the table following this sub-paragraph.

(2) Where an advocate and a litigator are instructed in proceedings referred to in section 12(2)(f) of the Act, remuneration must be at the rates specified in the table following this sub-paragraph, as appropriate to the category of advocate.

(d) in paragraph 18—

(i) for sub-paragraph (4), substitute—

“(4) Sub-paragraph (4A) applies to—

(a) a plea and case management hearing that takes place after the prosecution serves its evidence; and

(b) any other hearing that takes place before a plea and case management hearing has taken place but after the prosecution has served its evidence.

(4A) Where, at a hearing to which this sub-paragraph applies—

(a) the prosecution offers no evidence and the assisted person is discharged; or

(b) the assisted person is charged on an indictment which includes no offence that is triable only on indictment and the case is remitted to the magistrates’ court in accordance with paragraph 10(3)(a) of Schedule 3 to the Crime and Disorder Act 1998 (procedure where no indictable offence remains),

the advocate instructed in the proceedings must be paid a graduated fee calculated in accordance with paragraph 6, as appropriate for representing an assisted person in a guilty plea.”;

(e) in paragraph 23, omit sub-paragraphs (2) and (3);

(f) in paragraph 25—

(i) omit “but is not a Very High Cost Case which is the subject of an individual contract for the provision of funded services,”;

(ii) after “40 days” , the second time that it appears, add; and “on which the trial advocate attends at court.”.

26.  For Schedule 2, substitute—

Article 6(1)

“SCHEDULE 2 Litigators’ Graduated Fee Scheme

PART 1 Definition and Scope

Interpretation

1.—(1) In this Schedule—

“case” means proceedings in the Crown Court against any one assisted person—

“cracked trial” means a case on indictment in which—

“guilty plea” means a case on indictment which—

“main hearing” means—

“Newton hearing” means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R v Newton (1982) 77 Cr App R 13;

“PPE Cut-off” means the minimum number of pages of prosecution evidence for use in calculating the fee payable to a litigator under this Schedule, as set out in the tables following paragraphs 4(1) and 4(2).

(2) For the purpose of this Schedule, the number of pages of prosecution evidence served on the court includes all—

(a) witness statements;

(b) documentary and pictorial exhibits;

(c) records of interviews with the assisted person; and

(d) records of interviews with other defendants

which form part of the committal or served prosecution documents or which are included in any notice of additional evidence, but does not include any document provided on CD-ROM or by other means of electronic communication.

(3) In proceedings on indictment in the Crown Court initiated otherwise than by committal for trial, the appropriate officer must determine the number of pages of prosecution evidence in accordance with sub-paragraph (2) or as nearly in accordance with sub-paragraph (2) as possible as the nature of the case permits.

(4) A reference to the Table of Offences in this Schedule is to the Table in Part 6 of Schedule 1 and a reference to a Class of Offence in this Schedule refers to the Class in which that offence is listed in the Table of Offences.

Application

2.—(1) Subject to sub-paragraphs (2) to (3), this Schedule applies to—

(a) every case on indictment;

(b) the following proceedings in the Crown Court—

(i) an appeal against conviction or sentence from the magistrates’ court;

(ii) a sentencing hearing following a committal for sentence to the Crown Court;

(iii) proceedings arising out of an alleged breach of an order of the Crown Court (whether or not this Schedule applies to the proceedings in which the order was made);

(c) those proceedings listed in Regulation 3(2) of the CDS Regulations, in so far as they are Crown Court proceedings;

(d) a sentencing hearing following a case on indictment to which this Schedule applies, where sentence has been deferred under section 1 of the Powers of Criminal Courts (Sentencing) Act 2000(5) (deferment of sentence);

(e) any other post-sentence hearing.

(2) Sub-paragraph (3) applies where proceedings are—

(a) sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998(6) (no committal proceedings for indictable only offences); or

(b) transferred to the Crown Court under—

(i) section 4 of the Criminal Justice Act 1987(7) (transfer of serious fraud cases); or

(ii) section 53 of the Criminal Justice Act 1991(8) (transfer of certain cases involving children).

(3) Where, at any time after proceedings are sent or transferred to the Crown Court under the provisions referred to in sub-paragraph (2), they are—

(a) discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985(9) (discontinuance of proceedings after accused has been sent for trial); or

(b) dismissed pursuant to—

(i) paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (applications for dismissal);

(ii) section 6 of the Criminal Justice Act 1987 (applications for dismissal); or

(iii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal,

the provisions of paragraphs 16 and 17 apply.

(4) Where, following a case on indictment, a Newton hearing takes place—

(a) for the purposes of this Schedule the case will be treated as having gone to trial;

(b) the length of the trial will be taken to be the combined length of the main hearing and the Newton hearing;

(c) the provisions of this Schedule relating to cracked trials and guilty pleas will not apply.

(5) For the purposes of this Schedule, a case on indictment which discontinues at or before the plea and case management hearing otherwise than—

(a) by reason of a plea of guilty being entered, or

(b) in accordance with sub-paragraph (3) of this paragraph,

must be treated as a guilty plea.

(6) For the purposes of this Schedule, where a trial that is not a Very High Cost Case lasts over 200 days, it must be treated as if it had lasted 200 days.

(7) For the purposes of this Schedule, where a case that is not a Very High Cost Case has more than 99,999 pages of prosecution evidence, it must be treated as if it had 99,999 pages of prosecution evidence.

Class of Offences

3.—(1) For the purposes of this Schedule—

(a) every indictable offence falls within the Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed will be deemed to fall within Class H;

(b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977(10) (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981(11) (attempting to commit an offence), fall within the same Class as the substantive offence to which they relate;

(c) where the Table of Offences specifies that the Class within which an offence falls depends on whether the value involved exceeds a stated limit, the value must be presumed not to exceed that limit unless the litigator making the claim under article 6 proves otherwise to the satisfaction of the appropriate officer;

(d) where more than one count of the indictment is for an offence in relation to which the Class depends on the value involved, that value must be taken to be the total value involved in all those offences, but where two or more counts relate to the same property, the value of that property must be taken into account once only;

(e) where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry will include every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences;

(f) where in a case on indictment there is a hearing to determine the question of whether an assisted person is unfit to plead or unfit to stand trial, the litigator must elect whether that hearing falls within the same Class as the indictable offence to which it relates or within Class D;

(g) where in a case on indictment a restriction order is made under section 41 of the Mental Health Act 1983(12) (power of higher courts to restrict discharge from hospital), the offence falls within Class A, regardless of the Class under which the offence would be listed in the Table of Offences, but for this paragraph.

(2) Where a litigator in proceedings in the Crown Court is dissatisfied with the classification within Class H of an indictable offence not listed in the Table of Offences, he may apply to the appropriate officer, when lodging his claim for fees, to reclassify the offence.

(3) The appropriate officer must, in light of the objections made by the litigator—

(a) confirm the classification of the offence within Class H; or

(b) reclassify the offence

and must notify the litigator of his decision.

PART 2 Graduated Fees for Guilty Pleas, Cracked Trials and Trials

Pages of prosecution evidence

4.—(1) For the purposes of this Part, the PPE Cut-off figures in a cracked trial or guilty plea are specified in the table following this sub-paragraph, as appropriate to the offence with which the assisted person is charged.

(2) For the purposes of this Part, the PPE Cut-off figures in a trial are specified in the table following this sub-paragraph, as appropriate to the offence for which the assisted person is tried, and the length of trial.