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.

Cracked trial or guilty plea where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off

5.–(1) Where in a cracked trial or guilty plea the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 4(1) as appropriate to the class of offence with which the assisted person is charged, the total fee payable to the litigator will be–

(a) the basic fee, calculated in accordance with the table following sub-paragraph (2) of this paragraph;

(b) the defendant uplift, if any, calculated in accordance with the table following paragraph 9; and

(c) the adjustment for transfers and retrials, if any, calculated in accordance with paragraph 10.

(2) For the purposes of sub-paragraph (1), the basic fee appropriate to a cracked trial or a guilty plea is specified in the table following this sub-paragraph, in accordance with the type of case and Class of offence with which the assisted person is charged.

Trial where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off

6.–(1) Where in a trial the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 4(2) as appropriate to the offence for which the assisted person is tried and the length of trial, the total fee payable to the litigator will be–

(a) the basic fee, calculated in accordance with the table following sub-paragraph (2) of this paragraph;

(b) the length of trial proxy, if any, calculated in accordance with the table following sub-paragraph (3);

(c) the defendant uplift, if any, calculated in accordance with the table following paragraph 9; and

(d) the adjustment for transfers and retrials, if any, calculated in accordance with paragraph 10.

(2) For the purposes of sub-paragraph (1), the basic fee appropriate to a trial is specified in the table following this sub-paragraph, in accordance with the offence for which the assisted person is tried.

(3) For the purposes of sub-paragraph (1), the length of trial proxy is specified in the table below, in accordance with the offence for which the assisted person is tried and the length of trial.

Cracked trials and guilty pleas where the number of pages of prosecution evidence exceeds the PPE Cut-off

7.–(1) Where in a cracked trial or guilty plea the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the tables following paragraph 4(1) as appropriate to the offence with which the assisted person is charged, the total fee payable to the litigator will be–

(a) the final fee, calculated in accordance with sub-paragraph (2) of this paragraph;

(b) the defendant uplift, if any, calculated in accordance with the table following paragraph 9; and

(c) the adjustment for transfers and retrials, if any, calculated in accordance with paragraph 10.

(2) For the purposes of sub-paragraph (1), the final fee payable to a litigator in a cracked trial or guilty plea will be calculated in accordance with the following formula–

• F = I + (D x i)

(3) In the formula in sub-paragraph (2)–

• F is the amount of the final fee;

• I is the initial fee specified in the tables following this paragraph, as appropriate to the type of case, the offence with which the assisted person is charged and the number of pages of prosecution evidence;

• D is the difference between–

(a) the number of pages of prosecution evidence in the case; and

(b) the lower number in the PPE range as specified in the tables following this paragraph, as appropriate to the type of case, the offence with which the assisted person is charged and the number of pages of prosecution evidence in the case;

i is the incremental fee per page of prosecution evidence specified in the tables following this paragraph, as appropriate to the type of case, the offence with which the assisted person is charged and the number of pages of prosecution evidence in the case.

Trials where the number of pages of prosecution evidence exceeds the PPE Cut-off

8.–(1) Where in a trial the number of pages of prosecution evidence exceeds the PPE Cut-off figure specified in the table following paragraph 4(2) as appropriate to the offence for which the assisted person is tried and the length of trial, the total fee payable to the litigator will be–

(a) the final fee, calculated in accordance with sub-paragraph (2) of this paragraph;

(b) the defendant uplift, if any, calculated in accordance with the table following paragraph 9; and

(c) the adjustment for transfers and retrials, if any, calculated in accordance with paragraph 10.

(2) For the purposes of sub-paragraph (1), the final fee will be calculated in accordance with the following formula–

F = I + (D x i)

(3) In the formula in sub-paragraph (2)–

F is the amount of the final fee;

I is the initial fee specified in the table following this paragraph, as appropriate to the offence for which the assisted person is tried and the number of pages of prosecution evidence;

D is the difference between–

(a) the number of pages of prosecution evidence in the case; and

(b) the lower number in the PPE range as specified in the table following this paragraph, as appropriate to the offence for which the assisted person is tried and the number of pages of prosecution evidence in the case;

i is the incremental fee per page of prosecution evidence specified in the table following this paragraph, as appropriate to the offence for which the assisted person is tried and the number of pages of prosecution evidence in the case.

Defendant uplifts

9.–(1) The defendant uplift payable to a litigator will be calculated in accordance with the table following sub-paragraph (3).

(2) Only one defendant uplift will be payable in each case.

(3) In the table following this paragraph, the total fee means–

(a) in a cracked trial or guilty plea where the number of pages of prosecution evidence does not exceed the PPE Cut-off specified in the table following paragraph 4(1), the basic fee specified in the table following paragraph 5(2);

(b) in a trial where the number of pages of prosecution evidence does not exceed the PPE Cut-off specified in the table following paragraph 4(2), the basic fee specified in the table following paragraph 6(2) plus the length of trial proxy specified in the table following paragraph 6(3);

(c) in a cracked trial or guilty plea where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 4(1), the final fee, as calculated in accordance with paragraph 7(2); and

(d) in a trial where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 4(2), the final fee, as calculated in accordance with paragraph 8(2).

Retrials and Transfers

10.–(1) Where following a trial an order is made for a retrial and the same litigator acts for the assisted person at both trials that litigator will receive–

(a) in respect of the first trial, a fee calculated in accordance with the provisions of this Schedule; and

(b) in respect of the retrial, 25% of the fee, as appropriate to the circumstances and timing of the retrial, in accordance with the provisions of this Schedule.

(2) Where–

(a) a case is transferred to a new litigator; or

(b) a retrial is ordered and a new litigator acts for the assisted person at the retrial;

the original litigator and the new litigator must receive a percentage of the total fee, in accordance with the table following sub-paragraph (6), as appropriate to the circumstances and timing of the retrial, transfer or withdrawal of the representation order.

(3) Where a representation order is withdrawn before the case ends, a litigator must receive a percentage of the total fee, in accordance with the table following sub-paragraph (6), as appropriate to the circumstances and timing of a transfer.

(4) In the table following this paragraph, the total fee means–

(a) in a cracked trial or guilty plea where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 4(1), the basic fee as set out in the table following paragraph 5(2);

(b) in a trial where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 4(2), the basic fee specified in the table following paragraph 6(2) plus the length of trial proxy specified in the table following paragraph 6(3);

(c) in a cracked trial or guilty plea where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 4(1), the final fee, as calculated in accordance with paragraph 7(2); and

(d) in a trial where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 4(2), the final fee, as calculated in accordance with paragraph 8(2).

(5) Where a case becomes a Very High Cost Case after a representation order has been granted and is transferred from the litigator named on the representation order to a new litigator–

(a) the original litigator will be remunerated in accordance with the table following this paragraph; and

(b) the new litigator will be remunerated in accordance with the individual contract which applies to the case.

(6) Where a case becomes a Very High Cost Case after a representation order has been granted and the representation order is withdrawn before the end of the case, the litigator will be remunerated in accordance with the table following this paragraph as appropriate to the circumstances and timing of the withdrawal.

PART 3 Fixed Fees

General provisions

11. Except as provided under this Part, remuneration for all work undertaken by a litigator is included within the fee set out in Part 2 of this Schedule as appropriate to–

(a) the offence for which the assisted person is charged or tried;

(b) whether the case is a cracked trial, guilty plea or trial; and

(c) the number of pages of prosecution evidence.

Fees for appeals and committals for sentence hearings

12. The fee payable to a litigator instructed in–

(a) an appeal against conviction from a magistrates´ court;

(b) an appeal against sentence from a magistrates´ court;

(c) a sentencing hearing following a committal for sentence to the Crown Court.

is that set out in the table following paragraph 14.

Fees for contempt proceedings

13. .–This paragraph applies to proceedings referred to in section 12(2)(f) of the Act in the Crown Court.

(2) Where, in proceedings to which this paragraph applies, the contempt is alleged to have been committed by a person other than a defendant in a case to which this Schedule applies, remuneration for litigators must be at the rate set out in the table following paragraph 14.

(3) Where, in proceedings to which this paragraph applies, the contempt is alleged to have been committed by the defendant in a case to which this Schedule applies, all work undertaken by the litigator is included within–

(a) the fee payable under Part 2 of this Schedule, or

(b) in proceedings under paragraph 12 or 14, the fixed fee set out in the table following paragraph 14.

Fees for alleged breaches of a Crown Court order

14.–(1) This paragraph applies to proceedings in the Crown Court against one assisted person arising out of a single alleged breach of an order of the Crown Court.

(2) Where the litigator instructed in proceedings to which this paragraph applies was also instructed in the proceedings in which the Crown Court order was made, all work undertaken by the litigator is included within–

(a) the fee payable under Part 2 of this Schedule, for the original case; or

(b) in proceedings under paragraph 12, the fixed fee set out in the table following this paragraph for the original case.

(3) Where the litigator instructed in proceedings to which this paragraph applies was not instructed in the proceedings in which the Crown Court order was made, the fee payable to the litigator in respect of the proceedings to which this paragraph applies is that set out in the table following this sub-paragraph.

Fees for special preparation

15.–(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a fee is payable under part 2, any or all of the prosecution evidence, as defined in paragraph 1(2), is served in electronic form only, and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under Part 2.

(2) Where this paragraph applies, a special preparation fee may be paid, in addition to the fee payable under Part 2.

(3) The amount of the special preparation fee must be calculated from the number of hours which the appropriate officer considers reasonable to view the prosecution evidence, and using the rates specified in the table following paragraph 22.

(4) A litigator claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim.

(5) In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case.

Discontinuance or dismissal of sent or transferred proceedings

16.–(1) This paragraph applies to proceedings which are–

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

(b) transferred to the Crown Court under–

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

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

(2) Where proceedings to which this paragraph applies are discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985 (discontinuance of proceedings after accused has been sent for trial) at any time before the prosecution serves its evidence in accordance with the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(13) the litigator must be paid 50 percent of the Basic fee for a guilty plea, as specified in the table following paragraph 5, as appropriate to the offence for which the assisted person is charged.

(3) Where proceedings to which this paragraph applies are discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985 (discontinuance of proceedings after accused has been sent for trial) at any time after the prosecution serves its evidence in accordance with the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005, the litigator must be paid a fee calculated in accordance with paragraph 5, or, where appropriate, paragraph 7, as appropriate for representing an assisted person in a guilty plea.

(4) Where an application for dismissal is made under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1988, section 6 of the Criminal Justice Act 1987 or paragraph 5 of Schedule 6 to the Criminal Justice Act 1991, and –

(a) the charge, or charges are dismissed and the assisted person is discharged; or

(b) the charge, or charges, of an offence triable only on indictment are dismissed 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 litigator instructed in the proceedings must be paid a fee calculated in accordance with paragraph 5, or where appropriate, paragraph 7, as appropriate for representing an assisted person in a guilty plea.

(5) Sub-paragraph (6) 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.

(6) Where, at a hearing to which this 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,

the litigator must be paid a fee calculated in accordance with paragraph 5 or where appropriate paragraph 7, as appropriate for representing an assisted person in a guilty plea.

Defendant uplifts

17.–(1) Where a litigator represents more than one assisted person in proceedings referred to in paragraph 16(2), (3), (4) or (5), a defendant uplift will be payable.

(2) The defendant uplift will be calculated in accordance with the table following this paragraph.

(3) In the table following this paragraph, the total fee means–

(a) the fee specified in sub-paragraph (2) where that sub-paragraph applies; or

(b) the Basic fee (B) specified in the table following paragraph 5, or, where appropriate, the initial fee specified in paragraph 7, where paragraph 16(3), (4) or (5) applies, as appropriate for the circumstances set out in that sub-paragraph.

Warrant for arrest

18.–(1) This paragraph applies where–

(a) the assisted person fails to attend a hearing;

(b) at that hearing the court issues a warrant for the arrest of the assisted person, pursuant to section 7(1) of the Bail Act 1976(14) ("the warrant");

(c) the case does not proceed in the absence of the assisted person.

(2) Where in a case on indictment the warrant is not executed within three months of the date on which it was issued, the fee payable to the litigator is–

(a) where the warrant is issued at or before the plea and case management hearing, the fee payable for a guilty plea in accordance with paragraph 5, or where appropriate, paragraph 7;

(b) where the warrant is issued after the plea and case management hearing but before the trial, the fee payable for a cracked trial in accordance with paragraph 5 or where appropriate paragraph 7, as appropriate to the class of offence with which the assisted person is charged;

(c) where the warrant is issued during the trial, and the trial is aborted as a result, the fee payable for a trial as if the trial had ended on the day the warrant was issued.

(3) Where the warrant is issued during the course of proceedings referred to in paragraph 12 or 14 the fee payable to the litigator is the fee set out in the table following paragraph 14, as appropriate to the type of proceedings.

(4) Sub-paragraph (5) applies where–

(a) a fee has been paid, or is payable, to the litigator in accordance with sub-paragraph (2);

(b) the warrant is executed within 15 months of the date on which it was issued;

(c) the case proceeds after the warrant has been executed; and

(d) the litigator submits a claim for fees for the determination of his overall remuneration in the case, in accordance with article 6.

(5) Where this sub-paragraph applies–

(a) the appropriate officer must deduct the amount paid or payable in accordance with sub-paragraph (2) from the amount payable to the litigator on the final determination of fees in the case;

(b) if the fee paid or payable in accordance with sub-paragraph (2) is greater than the amount payable to the litigator on the final determination of fees in the case, the appropriate officer may recover the amount of the difference by way of repayment by the litigator.

PART 4 Miscellaneous

Additional charges

19.–(1) Where an assisted person is charged with more than one offence on one indictment, the fee payable to the litigator under this Schedule will be based on whichever of those offences the litigator selects.

(2) Where a litigator selects one offence, in preference to another offence, under sub-paragraph (1) that selection does not affect his right to claim any of the fees provided for in Part 3 of this Schedule to which he would otherwise have been entitled.

Assisted person unfit to plead or stand trial

20. Where in any case a hearing is held to determine the question of whether the assisted person is unfit to plead or to stand trial (a "fitness hearing")–

(a) if a trial on indictment is held, or continues, at any time thereafter, the length of the fitness hearing is included in determining the length of the trial for the calculation of the fee in accordance with Part 2;

(b) if a trial on indictment is not held, or does not continue, thereafter by reason of the assisted person being found unfit to plead or to stand trial, the litigator must be paid–

(i) a fee calculated in accordance with paragraph 6 or where appropriate paragraph 8, as appropriate to the combined length of–

(aa) the fitness hearing; and

(bb) any hearing under section 4A of the Criminal Procedure (Insanity) Act 1964(15) (finding that the accused did the act or made the omission charged against him); or

(ii) a fee calculated in accordance with paragraph 5, or where appropriate paragraph 7, as appropriate, for representing an assisted person in a cracked trial,

whichever the litigator elects; and

(c) if at any time the assisted person pleads guilty to the indictable offence, the litigator must be paid either–

(i) a fee calculated in accordance with paragraph 6 or, where appropriate, paragraph 8, as appropriate to the length of the fitness hearing; or

(ii) a fee calculated in accordance with paragraph 5 or, where appropriate, paragraph 7, as appropriate for representing an assisted person in a guilty plea,

whichever the litigator elects.

Fees for confiscation proceedings

21.–(1) This paragraph applies to–

(a) proceedings under Part 2 of the Proceeds of Crime Act 2002(16) (confiscation: England and Wales);

(b) proceedings under section 2 of the Drug Trafficking Act 1994(17) (confiscation orders) and

(c) proceedings under section 71 of the Criminal Justice Act 1988(18) (confiscation orders).

(2) Where this paragraph applies, the appropriate officer may allow work done in the following classes by a litigator–

(a) preparation, including taking instructions, interviewing witnesses, ascertaining the prosecution case, preparing and perusing documents, dealing with letters and telephone calls, instructing an advocate and expert witnesses, conferences, consultations and work done in connection with advice on appeal;

(b) attending at court where an advocate is instructed, including conferences with the advocate at court;

(c) travelling and waiting;

(d) writing routine letters and dealing with routine telephone calls.

(3) The appropriate officer must consider the claim, any further particulars, information or documents submitted by the litigator under article 6 and any other relevant information and must allow such work as appears to him to have been reasonably done in the proceedings.

(4) Subject to sub-paragraph (3), the appropriate officer must allow fees under this paragraph in accordance with paragraph 22.

(5) The appropriate officer must allow fees in accordance with paragraphs 22 - 24 as appropriate to such of the following grades of fee earner as he considers reasonable–

(a) senior solicitor;

(b) solicitor, legal executive or fee earner of equivalent experience; or

(c) trainee or fee earner of equivalent experience.

Prescribed fee rates

22. Subject to paragraphs 23 and 24, for proceedings in the Crown Court to which paragraph 21 applies the appropriate officer must allow fees for work under paragraph 21(2) at the following prescribed rates–

Allowing fees at less than the prescribed rates

23. In respect of any item of work, the appropriate officer may allow fees at less than the relevant prescribed rate specified in paragraph 22 where it appears to him reasonable to do so having regard to the competence and despatch with which the work was done.

Allowing fees at more than the prescribed rates

24.–(1) Upon a determination the appropriate officer may, subject to the provisions of this paragraph, allow fees at more than the relevant prescribed rate specified in paragraph 22 for preparation, attendance at court where more than one representative is instructed, routine letters written and routine telephone calls, in respect of offences in Class A, B, C, D, G, I, J or K in the Table of Offences.

(2) The appropriate officer may allow fees at more than the prescribed rate where it appears to him, taking into account all the relevant circumstances of the case, that–

(a) the work was done with exceptional competence, skill or expertise;

(b) the work was done with exceptional despatch; or

(c) the case involved exceptional complexity or other exceptional circumstances.

(3) Paragraph 3 of Schedule 1 applies to litigators in respect of proceedings in the Crown Court as it applies to advocates.

(4) Where the appropriate officer considers that any item or class of work should be allowed at more than the prescribed rate, he must apply to that item or class of work a percentage enhancement in accordance with the following provisions of this paragraph.

(5) In determining the percentage by which fees should be enhanced above the prescribed rate the appropriate officer must have regard to–

(a) the degree of responsibility accepted by the fee earner;

(b) the care, speed and economy with which the case was prepared; and

(c) the novelty, weight and complexity of the case.

(6) The percentage above the relevant prescribed rate by which fees for work may be enhanced must not exceed 100 per cent.

(7) The appropriate officer may have regard to the generality of proceedings to which this Order applies in determining what is exceptional within the meaning of this paragraph.".

27. Omit Schedule 3.

28. In paragraph 14(3) of Schedule 4, omit ", paragraph 14(5) of Schedule 2".

Explanatory Note

(This note is not part of the Order)

This Order amends the Criminal Defence Service (Funding) Order 2007 ("the 2007 Order"), which makes provision for the funding and remuneration of services provided as part of the Criminal Defence Service. This Order omits the payment provisions for solicitors (and other appropriately qualified persons) for proceedings in the Crown Court, and replaces them with a new fee scheme.

It makes minor amendments to the Advocates´ Graduated Fee Scheme, contained in Schedule 1 of the 2007 Order, to clarify the provisions on discontinuance and dismissal and trials lasting over 40 days.

It also removes references to Very High Cost Case from 14th January 2008, which on or after that date will be remunerated in accordance with contractual arrangements entered into with the Legal Services Commission.

A full impact assessment of the effect of this instrument on the costs of business and the voluntary sector is available from www.legalservices.gov.uk or from Criminal Legal Aid Strategy Directorate, Ministry of Justice, Selborne House, 54 Victoria Street, London SW1 6QW.