Citation and commencement

1. These Regulations may be cited as the Criminal Legal Aid (Remuneration) Regulations 2013 and shall come into force on 1st April 2013.

Interpretation

2.-(1) In these Regulations-

"the Act" means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

"advocate" means a barrister, a solicitor advocate or a solicitor who is exercising their automatic rights of audience in the Crown Court;

"appropriate officer" means-

and, in any case, includes an officer designated by the person who is the appropriate officer by virtue of paragraphs (a) to (g) to act on his behalf for the purposes of these Regulations;

"assisted person" means an individual in whose favour a section 16 determination has been made;

"fee earner" means a litigator, or person employed by a litigator, who undertakes work on a case;

"instructed advocate" means-

"leading instructed advocate" means the first leading barrister or solicitor advocate instructed in the case who has primary responsibility for those aspects of a case undertaken by a leading advocate;

"led instructed advocate" means the first led barrister or solicitor advocate instructed in the case who has primary responsibility for those aspects of the case undertaken by a led advocate;

"litigator" means the person referred to in the representation order as representing an assisted person, being a solicitor, firm of solicitors or other appropriately qualified person.

"related proceedings" means-

"representation order" means a document which records a section 16 determination;

"representative" means a litigator or an advocate including, where appropriate, an instructed advocate;

"section 16 determination" means a determination made under section 16 of the Act that an individual qualifies for representation for the purposes of criminal proceedings;

"senior solicitor" means a solicitor who, in the judgement of the appropriate officer, has the skill, knowledge and experience to deal with the most difficult and complex cases;

"solicitor advocate" means a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society;

"solicitor, legal executive or fee earner of equivalent experience" means a solicitor, Fellow of the Institute of Legal Executives or equivalent senior fee earner who, in the judgement of the appropriate officer, has good knowledge and experience of the conduct of criminal cases;

"trainee solicitor or fee earner of equivalent experience" means a trainee solicitor or other fee earner who is not a Fellow of the Institute of Legal Executives, who, in the judgement of the appropriate officer, carries out the routine work on a case;

"Very High Cost Case" means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds that-

(2) The fees and rates set out in the Schedules to these Regulations are exclusive of value added tax.

(3) A function of the Lord Chancellor or Director under these Regulations may be exercised by, or by an employee of, a person authorised for that purpose by the Lord Chancellor or Director respectively(4).

Scope

3.-(1) Regulations 5(2), 10 and 14(1) apply to proceedings in magistrates' courts and to proceedings in the Crown Court.

(2) Regulation 8 and Schedule 4 apply to proceedings in magistrates' courts, to proceedings in the Crown Court and to proceedings in the High Court.

(3) Regulations 16 and 31 and Schedule 5 apply to proceedings in magistrates' courts, to proceedings in the Crown Court and to proceedings in the Court of Appeal.

(4) Regulations 4, 5(1) and (3) to (8), 13, 14(2) to (9), 15, 17 to 24 and 28 to 30 and Schedules 1 and 2 apply to proceedings in the Crown Court only.

(5) Regulations 9, 11 and 25 to 27, apply to proceedings in the Crown Court and to proceedings in the Court of Appeal.

(6) Regulation 6 and Schedule 3 apply to proceedings in the Court of Appeal only.

(7) Regulation 7 applies to proceedings in the Supreme Court only.

(8) With the exception of regulation 12 and paragraphs 13(8) and (9) of Schedule 2, these Regulations do not apply to Very High Cost Cases.

(9) For the purpose of these Regulations, any reference to the Court of Appeal includes as appropriate a reference to-

(a)the criminal division of the Court of Appeal;

(b)the civil division of the Court of Appeal;

(c)the Courts-Martial Appeal Court; and

(d)a Divisional Court of the High Court.

Claims for fees by advocates -� Crown Court

4.-(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to these Regulations.

(2) A claim for fees under this regulation and Schedule 1 must be made by each instructed advocate.

(3) Subject to regulation 31, a claim by an instructed advocate for fees in respect of work done pursuant to a section 16 determination must not be entertained unless the instructed advocate submits it within three months of the conclusion of the proceedings to which it relates.

(4) An instructed advocate must submit a claim for fees to the appropriate officer in such form and manner as the appropriate officer may direct.

(5) An instructed advocate must supply such further information and documents as the appropriate officer may require.

(6) Where a confiscation hearing under Part 2 of the Proceeds of Crime Act 2002(5) (confiscation: England and Wales), section 2 of the Drug Trafficking Act 1994(6) (confiscation orders) or section 71 of the Criminal Justice Act 1988(7) (confiscation orders) is to be held more than 28 days after-

(a)the conclusion of the trial to which the section 16 determination relates; or

(b)the entering of a guilty plea,

an instructed advocate may submit any claim for fees in respect of the trial or guilty plea as soon as the trial has concluded or the guilty plea has been entered.

(7) Where the section 16 determination provides for representation by-

(a)a single advocate other than a QC; or

(b)two or more advocates other than QC,

and a QC agrees to appear as the single advocate or as a leading junior, that QC must be treated for all the purposes of these Regulations as having been instructed in relation to that determination, and the remuneration of that QC must be determined as if the advocate were not a QC.

Claims for fees and disbursements by litigators -� Crown Court

5.-(1) Claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 2 to these Regulations.

(2) Claims for disbursements by litigators in proceedings in the Crown Court or in proceedings in a magistrates' court which are subsequently committed or sent for trial to the Crown Court must be made and determined in accordance with the provisions of regulations 14 to 17.

(3) Subject to regulation 31, a claim by a litigator for fees in respect of work done pursuant to a section 16 determination must not be entertained unless the litigator submits it within three months of the conclusion of the proceedings to which it relates.

(4) Subject to paragraph (5), a claim by a litigator for fees in proceedings in the Crown Court must be submitted to the appropriate officer in such form and manner as the appropriate officer may direct and must be accompanied by the representation order and any receipts or other documents in support of any disbursement claimed.

(5) A claim under paragraph 20 or 26 of Schedule 2 to these Regulations must-

(a)summarise the items of work done by a fee earner in respect of which fees are claimed according to the classes specified in paragraph 26(2) of Schedule 2;

(b)state, where appropriate, the dates on which the items of work were done, the time taken, the sums claimed and whether the work was done for more than one assisted person;

(c)specify, where appropriate, the level of fee earner who undertook each of the items of work claimed; and

(d)give particulars of any work done in relation to more than one indictment or a retrial.

(6) Where the litigator claims that paragraph 29 of Schedule 2 applies in relation to an item of work, the litigator must give full particulars in support of the claim.

(7) The litigator must specify any special circumstances which the litigator considers should be drawn to the attention of the appropriate officer.

(8) The litigator must supply such further information and documents as the appropriate officer may require.

Proceedings in the Court of Appeal

6. Claims for fees by representatives in proceedings in the Court of Appeal must be made and determined in accordance with the provisions of Schedule 3 to these Regulations.

Proceedings in the Supreme Court

7.-(1) In proceedings in the Supreme Court, the fees payable to a representative in respect of advice and assistance or representation made available to an individual in accordance with sections 15 or 16 of the Act must be determined by such officer as may be prescribed by order of the Supreme Court.

(2) Subject to paragraph (1), these Regulations do not apply to proceedings in the Supreme Court.

Claims for fees for certain categories of work to which the Standard Crime Contract applies

8.-(1) This regulation applies to-

(a)advice and assistance provided pursuant to a determination made under section 13 or section 15 of the Act;

(b)representation in proceedings in a magistrates' court pursuant to a section 16 determination;

(c)representation pursuant to a section 16 determination in proceedings prescribed as criminal proceedings under section 14(h) of the Act; and

(d)representation in appeals by way of case stated to the High Court.

(2) Claims for fees in cases to which this regulation applies must-

(a)be made and determined in accordance with the 2010 Standard Crime Contract; and

(b)be paid in accordance with the rates set out in Schedule 4.

(3) In this regulation and in Schedule 4, "2010 Standard Crime Contract" means the contract so named between the Lord Chancellor and a person with whom the Lord Chancellor has made an arrangement under section 2(1) of the Act for the provision of advice, assistance and representation made available under sections 13, 15 and 16 of the Act(8).

Payments from other sources

9. Where representation is provided in respect of any proceedings, the representative, whether acting pursuant to a section 16 determination or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made-

(a)by the Lord Chancellor; or

(b)in respect of any expenses or fees incurred in-

(i)preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii)obtaining any transcripts or recordings,

where an application under regulation 13 for an authority to incur such fees or expenses has been refused by a committee appointed under arrangements made by the Lord Chancellor to deal with, amongst other things, appeals of, or review of, assessment of costs.

Cases committed or sent for trial to the Crown Court

10.-(1) Where a case is committed or sent for trial or transferred to the Crown Court, 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.

(2) Paragraph (1) does not apply where the case is remitted to a magistrates' court.

Proceedings for contempt

11. Where representation is provided in proceedings referred to in section 14(g) of the Act (proceedings for contempt in the face of a court), the Lord Chancellor may only pay remuneration for services in accordance with Schedules 1, 2 and 3.

Notification of Very High Cost Cases

12.-(1) A litigator who has conduct of a case which is, or is likely to be classified as, a Very High Cost Case, must notify the Lord Chancellor in writing as soon as practicable.

(2) Where a litigator fails to comply with this regulation without good reason, and as a result there is a loss to public funds, the Lord Chancellor may refuse payment of the litigator's costs up to the extent of such loss.

(3) The Lord Chancellor must not refuse payment under paragraph (2) unless the litigator has been given a reasonable opportunity to show why the payment should not be refused.

Authorisation of expenditure

13.-(1) Where it appears to a litigator necessary for the proper conduct of proceedings in the Crown Court for costs to be incurred in relation to representation by taking any of the following steps-

(a)obtaining a written report or opinion of one or more experts;

(b)employing a person to provide a written report or opinion (otherwise than as an expert);

(c)obtaining any transcripts or recordings; or

(d)performing an act which is either unusual in its nature or involves unusually large expenditure,

the litigator may apply to the Lord Chancellor for prior authority to do so.

(2) Where the Lord Chancellor authorises the taking of any step referred to in paragraph (1), the Lord Chancellor shall also authorise the maximum to be paid in respect of that step.

(3) A representative assigned to an assisted person in any proceedings in the Crown Court may apply to the Lord Chancellor for prior authority for the incurring of travelling and accommodation expenses in order to attend at the trial or other main hearing in those proceedings.

Interim payment of disbursements

14.-(1) A litigator may submit a claim to the appropriate officer for payment of a disbursement for which the litigator has incurred liability in proceedings in the Crown Court, or in proceedings in a magistrates' court which are subsequently committed or sent for trial or transferred to the Crown Court, in accordance with the provisions of this regulation.

(2) A claim for payment under paragraph (1) may be made where-

(a)a litigator has obtained prior authority to incur expenditure of £100 or more under regulation 13; and

(b)the litigator has incurred such a liability.

(3) Without prejudice to regulation 17(4) and (5) a claim for payment under paragraph (1) must not exceed the maximum amount authorised under the prior authority.

(4) A claim for payment under paragraph (1) may be made at any time before the litigator submits a claim for fees under regulation 5.

(5) A claim for payment under paragraph (1) must be submitted to the appropriate officer in such form and manner as the appropriate officer may direct and must be accompanied by the authority to incur expenditure and any invoices or other documents in support of the claim.

(6) Subject to regulation 16, the appropriate officer must allow the disbursement subject to the limit in paragraph (3) if it appears to have been reasonably incurred in accordance with the prior authority.

(7) The appropriate officer must notify the litigator and, where the disbursement claimed includes the fees or charges of any person, may notify that person of the appropriate officer's decision.

(8) Where the appropriate officer allows the disbursement, the appropriate officer must notify the litigator and, where the disbursement includes the fees or charges of any person, may notify that person, of the amount payable, and must authorise payment to the litigator accordingly.

(9) Regulations 28 to 30 do not apply to a payment under this regulation.

Interim disbursements and final determination of fees

15.-(1) On a final determination of fees, regulations 5(2) and 17 apply notwithstanding that a payment has been made under regulation 14.

(2) Where the amount found to be due under regulation 17 in respect of a disbursement is less than the amount paid under regulation 14 ("the interim payment"), the appropriate officer must deduct the difference from the sum otherwise payable to the litigator on the determination of fees, and where the amount due under regulation 17 exceeds the interim payment, the appropriate officer must add the difference to the amount otherwise payable to the litigator.

Expert services

16.-(1) Subject to paragraph (2), the Lord Chancellor may provide for the payment of expert services only at the fixed fees or at rates not exceeding the rates set out in Schedule 5.

(2) The appropriate officer may, in relation to a specific claim, increase the fixed fees or rates set out in Schedule 5 if that officer considers it reasonable to do so in exceptional circumstances.

(3) For the purposes of paragraph (2), exceptional circumstances are where the expert's evidence is key to the client's case and either-

(a)the complexity of the material is such that an expert with a high level of seniority is required; or

(b)the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.

Determination of litigators' disbursements

17.-(1) Subject to paragraphs (2) to (5), the appropriate officer must allow such disbursements claimed under regulation 5(2) as appear to the appropriate officer to have been reasonably incurred.

(2) If the disbursements claimed are abnormally large by reason of the distance of the court or the assisted person's residence or both from the litigator's place of business, the appropriate officer may limit reimbursement of the disbursements to what otherwise would, having regard to all the circumstances, be a reasonable amount.

(3) No question as to the propriety of any step or act in relation to which prior authority has been obtained under regulation 13 may be raised on any determination of disbursements, unless the litigator knew or ought reasonably to have known that the purpose for which the authority was given had failed or had become irrelevant or unnecessary before the disbursements were incurred.

(4) Where disbursements are reasonably incurred in accordance with and subject to the limit imposed by a prior authority given under regulation 13, no question may be raised on any determination of fees as to the amount of the payment to be allowed for the step or act in relation to which the authority was given.

(5) Where disbursements are incurred in taking any steps or doing any act for which authority may be given under regulation 13, without such authority having been given or in excess of any fee so authorised, payment in respect of those disbursements may nevertheless be allowed on a determination of disbursements payable under regulation 5.

(6) Paragraph (7) applies where the Lord Chancellor receives a request for funding of an expert service of a type not listed in Schedule 5.

(7) In considering the rate at which to fund the expert service the Lord Chancellor-

(a)must have regard to the rates set out in Schedule 5; and

(b)may require more than one quotation for provision of the service to be submitted to the Lord Chancellor.

Interim payments in cases awaiting determination of fees

18.-(1) The appropriate officer must authorise an interim payment in respect of a claim for fees in proceedings in the Crown Court in accordance with this regulation.

(2) Entitlement to a payment arises in respect of a claim for fees by an instructed advocate, where-

(a)the graduated fee claimed in accordance with Schedule 1 is £4,000 or more (exclusive of value added tax); and

(b)the claim for fees is for less than the amount mentioned in sub-paragraph (a) but is related to any claim for fees falling under sub-paragraph (a).

(3) For the purposes of this regulation, the following claims for fees are related to each other-

(a)the claims of instructed advocates acting in the same proceedings for a defendant; and

(b)the claims of any instructed advocate acting for any assisted person in related proceedings.

(4) Entitlement to a payment under paragraph (1) does not arise until three months have elapsed from the earlier of-

(a)the date on which the claim for fees is received by the appropriate officer for determination, except that where there are related claims for fees, the date on which the last claim is received by the appropriate officer; or

(b)three months after the conclusion of the last of any related proceedings.

(5) An instructed advocate may submit a claim for an interim payment under this regulation where-

(a)no payment has been made under paragraph (1); and

(b)six months have elapsed from the conclusion of the proceedings against the assisted person.

(6) Subject to regulation 31, payment must not be made under this regulation unless the instructed advocate has submitted a claim for fees in accordance with regulation 4(3).

Amount of interim payments in cases awaiting determination of fees

19.-(1) Where entitlement to an interim payment arises under regulation 18, the amount payable is 40% of the total claim for fees, less any sum already paid.

(2) Regulations 28 to 30 do not apply to an interim payment under this regulation.

Staged payments in long Crown Court proceedings

20.-(1) An instructed advocate may submit a claim to the appropriate officer for a staged payment of the instructed advocate's fees in relation to proceedings in the Crown Court.

(2) Where a claim is submitted in accordance with this regulation, a staged payment must be allowed where the appropriate officer is satisfied-

(a)that the claim relates to fees for a period of preparation of 100 hours or more, for which the instructed advocate will, subject to final determination of the fees payable, be entitled to be paid in accordance with Schedule 1; and

(b)that the period from committal, or sending for trial or transfer (or from the date of the section 16 determination, if later) to the conclusion of the Crown Court proceedings is likely to exceed 12 months, having regard, amongst other matters, to the number of defendants, the anticipated pleas and the weight and complexity of the case.

(3) In this regulation, "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).

(4) The amount allowed for preparation falling within paragraph (3) must be determined by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the fees payable, has been reasonably done, multiplied by the hourly rate for special preparation as set out in the table following paragraph 24 of Schedule 1, as appropriate to the category of advocate.

(5) A claim for staged payment of fees under this regulation must be made to the appropriate officer in such form and manner as the appropriate officer may direct, including such case plan as the appropriate officer may require for the purposes of paragraph (2)(a).

(6) An instructed advocate may claim further staged payments in accordance with this regulation in respect of further periods of preparation exceeding 100 hours which were not included in an earlier claim.

(7) Regulations 28 to 30 do not apply to a payment under this regulation.

Hardship payments

21.-(1) Subject to paragraphs (5) and (6), the appropriate officer may allow a hardship payment to a representative in the circumstances set out in paragraph (2).

(2) Those circumstances are that the representative-

(a)represents the assisted person in proceedings in the Crown Court;

(b)applies for such payment, in such form and manner as the appropriate officer may direct, not less than six months after the representative was first instructed in those proceedings, or in related proceedings if the representative was instructed in those proceedings earlier than in the proceedings to which the application relates;

(c)is unlikely to receive final payment in respect of the proceedings, as determined under Schedule 1 or 2, within the three months following the application for the hardship payment; and

(d)satisfies the appropriate officer that, by reason of the circumstance in sub-paragraph (c), the representative is likely to suffer financial hardship.

(3) Every application for a hardship payment by an advocate must be accompanied by such information and documents as the appropriate officer may require as evidence of-

(a)the work done by the advocate in relation to the proceedings up to the date of the application; and

(b)the likelihood of financial hardship.

(4) 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 7 of Schedule 1;

(b)the length of trial, where appropriate;

(c)the number of pages of prosecution evidence, determined 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.

(5) The amount of any hardship payment is at the discretion of the appropriate officer, but must not exceed such sum as would be reasonable remuneration for the work done by the representative in the proceedings up to the date of the application.

(6) A hardship payment must not be made if it appears to the appropriate officer that the sum which would be reasonable remuneration for the representative, or the sum required to relieve the representative's financial hardship, is less than £5,000 (excluding value added tax).

(7) Where the appropriate officer allows a hardship payment under paragraph (1), the appropriate officer must authorise payment accordingly.

(8) Where the application for a hardship payment is made by an advocate other than an instructed advocate, and the appropriate officer allows a hardship payment under paragraph (1)-

(a)payment must be made to the leading instructed advocate or the led instructed advocate, as appropriate; and

(b)the appropriate officer must notify the advocate who made the application that payment has been made to the instructed advocate.

Computation of final claim where an interim payment has been made

22.-(1) At the conclusion of a case in which one or more payments have been made to an instructed advocate or a litigator under regulations 18 to 21, the instructed advocate or litigator must submit a claim under regulation 4 or 5 for the determination of the overall remuneration, whether or not such a claim will result in any payment additional to those already made.

(2) In the determination of the amount payable to an instructed advocate or litigator under regulation 4 or 5-

(a)the appropriate officer must deduct the amount of any payment made under regulations 18 to 21 in respect of the same case from the amount that would otherwise be payable; and

(b)if the amount of the interim payment is greater than the amount that would otherwise be payable, the appropriate officer may recover the amount of the difference, either by way of repayment by the instructed advocate or litigator or by way of deduction from any other amount that may be due to the instructed advocate or litigator.

Payment of fees to advocates -� Crown Court

23.-(1) Having determined the fees payable to each instructed advocate, in accordance with Schedule 1, the appropriate officer must notify each instructed advocate of the fees payable and authorise payment accordingly.

(2) Where, as a result of any redetermination or appeal made or brought pursuant to regulations 28 to 30, the fees payable under paragraph (1) are altered-

(a)if they are increased, the appropriate officer must authorise payment of the increase; or

(b)if they are decreased, the instructed advocate must repay the amount of such decrease.

(3) Where the payment of any fees of an instructed advocate is ordered under regulation 29(12) or regulation 30(8), the appropriate officer must authorise payment.

Payment of fees to litigators -� Crown Court

24.-(1) Having determined the fees payable to a litigator in accordance with Schedule 2, the appropriate officer must authorise payment accordingly.

(2) 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 regulation 5(1), the appropriate officer must notify the litigator of the amount the appropriate officer has determined to be payable.

(3) Where, as a result of any redetermination or appeal made or brought pursuant to regulations 28 to 30, the fees payable under paragraph (1) are altered-

(a)if they are increased, the appropriate officer must authorise payment of the increase; or

(b)if they are decreased, the litigator must repay the amount of such decrease.

(4) Where the payment of any fees of the litigator is ordered under regulation 29(12) or regulation 30(8), the appropriate officer must authorise payment.

Recovery of overpayments

25.-(1) This regulation applies where a representative is entitled to be paid a certain sum ("the amount due") by virtue of the provisions of Schedule 1, 2 or 3 and, for whatever reason, the representative is paid an amount greater than that sum.

(2) Where this regulation applies, the appropriate officer may-

(a)require immediate repayment of the amount in excess of the amount due ("the excess amount"); or

(b)deduct the excess amount from any other sum which is or becomes payable to the representative by virtue of the provisions of Schedule 1, 2 or 3,

and where sub-paragraph (a) applies the representative must repay the excess amount to the appropriate officer.

(3) The appropriate officer may proceed under paragraph (2)(b) without first proceeding under paragraph (2)(a).

(4) Paragraph (2) applies notwithstanding that the representative to whom the excess amount was paid is exercising, or may exercise, a right under regulations 28 to 30.

Adverse observations

26.-(1) Where in any proceedings to which Schedule 1, 2 or 3 applies, the court makes adverse observations concerning a representative's conduct of the proceedings, the appropriate officer may reduce any fee which would otherwise be payable in accordance with Schedule 1, 2 or 3 by such proportion as the appropriate officer considers reasonable.

(2) Before reducing the fee payable to a representative in accordance with the provisions of paragraph (1), the appropriate officer must give the representative the opportunity to make representations about whether it is appropriate to reduce the fee and the extent to which the fee should be reduced.

Wasted costs orders

27.-(1) Subject to paragraph (2), where the court has disallowed the whole or any part of any wasted costs under section 19A of the Prosecution of Offences Act 1985(9) (costs against legal representatives etc), the appropriate officer, in determining fees in respect of work done by the representative against whom the wasted costs order was made, may deduct the amount in the wasted costs order from the amount otherwise payable in accordance with these Regulations.

(2) Where the appropriate officer, in accordance with this regulation, is minded to disallow any amount of a claim for work done to which the wasted costs order relates, the appropriate officer must disallow that amount or the amount of the wasted costs order, whichever is the greater.

Redetermination of fees by appropriate officer

28.-(1) Where-

(a)an advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow any of the following fees, or with the number of hours allowed in the calculation of such a fee, namely-

(i)a special preparation fee under paragraph 17 of Schedule 1; or

(ii)a wasted preparation fee under paragraph 18 of Schedule 1; or

(b)an instructed advocate in proceedings in the Crown Court is dissatisfied with-

(i)the decision not to allow an hourly fee in respect of attendance at conferences or views at the scene of the alleged offence under paragraph 19 of Schedule 1, or with the number of hours allowed in the calculation of such a fee;

(ii)the calculation by the appropriate officer of the fee payable to the instructed advocate in accordance with Schedule 1; or

(iii)the decision of the appropriate officer under paragraph 3(3) of Schedule 1 (reclassification of an offence not specifically listed in the relevant Table of Offences and so deemed to fall within Class H); or

(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),

the advocate, instructed advocate or litigator, as the case may be, may apply to the appropriate officer to redetermine those fees, to review that decision or to reclassify the offence, as appropriate.

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

(3) Subject to regulation 31, an application under paragraph (1), or paragraph 11(1) of Schedule 3, must be made-

(a)within 21 days of the receipt of the fees payable under regulation 23, regulation 24 or paragraph 10 of Schedule 3, as appropriate;

(b)by giving notice in writing to the appropriate officer, specifying the matters in respect of which the application is made and the grounds of objection; and

(c)in such form and manner as the appropriate officer may direct.

(4) The notice of application must be accompanied by the information and documents supplied under regulation 4, regulation 5 or Schedule 3, as appropriate.

(5) The notice of application must state whether the applicant wishes to appear or to be represented and, if the applicant so wishes, the appropriate officer must notify the applicant of the hearing date and time.

(6) The applicant must supply such further information and documents as the appropriate officer may require.

(7) The appropriate officer must, in the light of the objections made by the applicant or on behalf of the applicant-

(a)redetermine the fees, whether by way of confirmation, or increase or decrease in the amount previously determined;

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

(c)reclassify the offence,

as the case may be, and must notify the applicant of his decision.

(8) Where the applicant so requests, the appropriate officer must give reasons in writing for the appropriate officer's decision.

(9) Subject to regulation 31, any request under paragraph (8) must be made within 21 days of receiving notification of the appropriate officer's decision under paragraph (7).

Appeals to a Costs Judge

29.-(1) Where the appropriate officer has given his reasons for his decision under regulation 28(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.

(2) Subject to regulation 31, an appeal under paragraph (1) or paragraph 11(2) of Schedule 3 must be instituted within 21 days of the receipt of the appropriate officer's reasons, by giving notice in writing to the Senior Costs Judge.

(3) The appellant must send a copy of any notice of appeal given under paragraph (2) to the appropriate officer.

(4) The notice of appeal must be accompanied by-

(a)a copy of any written representations given under regulation 28(3);

(b)the appropriate officer's reasons for the appropriate officer's decision given under regulation 28(8); and

(c)the information and documents supplied to the appropriate officer under regulation 28.

(5) The notice of appeal must-

(a)be in such form as the Senior Costs Judge may direct;

(b)specify separately each item appealed against, showing (where appropriate) the amount claimed for the item, the amount determined and the grounds of the objection to the determination; and

(c)state whether the appellant wishes to appear or to be represented or whether the appellant will accept a decision given in the appellant's absence.

(6) The Senior Costs Judge may, and if so directed by the Lord Chancellor either generally or in a particular case must, send to the Lord Chancellor a copy of the notice of appeal together with copies of such other documents as the Lord Chancellor may require.

(7) With a view to ensuring that the public interest is taken into account, the Lord Chancellor may arrange for written or oral representations to be made on the Lord Chancellor's behalf and, if the Lord Chancellor intends to do so, the Lord Chancellor must inform the Senior Costs Judge and the appellant.

(8) Any written representations made on behalf of the Lord Chancellor under paragraph (7) must be sent to the Senior Costs Judge and the appellant and, in the case of oral representations, the Senior Costs Judge and the appellant must be informed of the grounds on which such representations will be made.

(9) The appellant must be permitted a reasonable opportunity to make representations in reply.

(10) The Costs Judge must inform the appellant (or the person representing him) and the Lord Chancellor, where representations have been or are to be made on the Lord Chancellor's behalf, of the date of any hearing and, subject to the provisions of this regulation, may give directions as to the conduct of the appeal.

(11) The Costs Judge may consult the trial judge or the appropriate officer and may require the appellant to provide any further information which the Costs Judge requires for the purpose of the appeal and, unless the Costs Judge otherwise directs, no further evidence may be received on the hearing of the appeal and no ground of objection may be raised which was not raised under regulation 28.

(12) The Costs Judge has the same powers as the appropriate officer under these Regulations and, in the exercise of such powers, may alter the redetermination of the appropriate officer in respect of any sum allowed, whether by increasing or decreasing it, as the Costs Judge thinks fit.

(13) The Costs Judge must communicate his decision and the reasons for it in writing to the appellant, the Lord Chancellor and the appropriate officer.

(14) Where the Costs Judge increases the sums redetermined under regulation 28, the Costs Judge may allow the appellant a sum in respect of part or all of any reasonable costs incurred by the appellant in connection with the appeal (including any fee payable in respect of an appeal).

Appeals to the High Court

30.-(1) A representative who is dissatisfied with the decision of a Costs Judge on an appeal under regulation 29 may apply to a Costs Judge to certify a point of principle of general importance.

(2) Subject to regulation 31, an application under paragraph (1) or paragraph 11(3) of Schedule 3 must be made within 21 days of receiving notification of a Costs Judge's decision under regulation 29(13).

(3) Where a Costs Judge certifies a point of principle of general importance the appellant may appeal to the High Court against the decision of a Costs Judge on an appeal under regulation 29, and the Lord Chancellor must be a respondent to such an appeal.

(4) Subject to regulation 31, an appeal under paragraph (3) must be instituted within 21 days of receiving notification of a Costs Judge's certificate under paragraph (1).

(5) Where the Lord Chancellor is dissatisfied with the decision of a Costs Judge on an appeal under regulation 29, the Lord Chancellor may, if no appeal has been made by an appellant under paragraph (3), appeal to the High Court against that decision, and the appellant must be a respondent to the appeal.

(6) Subject to regulation 31, an appeal under paragraph (5) must be instituted within 21 days of receiving notification of the Costs Judge's decision under regulation 29(13).

(7) An appeal under paragraph (3) or (5) must-

(a)be brought in the Queen's Bench Division;

(b)subject to paragraph (4), follow the procedure set out in Part 52 of the Civil Procedure Rules 1998(10); and

(c)be heard and determined by a single judge whose decision will be final.

(8) The judge has the same powers as the appropriate officer and a Costs Judge under these Regulations and may reverse, affirm or amend the decision appealed against or make such other order as the judge thinks fit.

Time limits

31.-(1) Subject to paragraph (2), the time limit within which any act is required or authorised to be done under these Regulations may, for good reason, be extended-

(a)in the case of acts required or authorised to be done under regulations 29 or 30, by a Costs Judge or the High Court as the case may be; and

(b)in the case of acts required or authorised to be done by a representative under any other regulation, by the appropriate officer.

(2) Where a representative without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the appropriate officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and must consider whether it is reasonable in the circumstances to reduce the fees payable to the representative under regulations 4, 5 or 6, provided that the fees must not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the fees should not be reduced.

(3) A representative may appeal to a Costs Judge against a decision made under this regulation by an appropriate officer and such an appeal must be instituted within 21 days of the decision being given by giving notice in writing to the Senior Costs Judge specifying the grounds of appeal.

Regulation 4

SCHEDULE 1Advocates' Graduated Fee Scheme

PART 1Definitions and Scope

Interpretation

1.-(1) In this Schedule-

"case" means proceedings in the Crown Court against any one assisted person-

and a case falling within paragraph (c) must be treated as a separate case from the proceedings in which the order was made;

"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;

"standard appearance" means an appearance by the trial advocate or substitute advocate in any of the following hearings which do not form part of the main hearing-

provided that a fee is not payable elsewhere under this Schedule in respect of the hearing;

"substitute advocate" means an advocate who is not an instructed advocate or the trial advocate but who undertakes work on the case; and

"trial advocate" means an advocate instructed pursuant to a section 16 determination to represent the assisted person at the main hearing in any case, including a QC or a leading junior advocate so instructed after the hearing at which pleas are taken.

(2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3) The number of pages of prosecution evidence 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.

(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(5) A documentary or pictorial exhibit which-

(a)has been served by the prosecution in electronic form; and

(b)has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances.

(6) 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-paragraphs (2) to (5) or as nearly in accordance with those sub-paragraphs as possible as the nature of the case permits.

(7) A reference to the Table of Offences in this Schedule is to the Table of Offences in Part 7 and a reference to a Class of Offence in this Schedule is to the Class in which that offence is listed in the Table of Offences.

Application

2.-(1) Subject to sub-paragraphs (2) to (11), this Schedule applies to-

(a)every case on indictment; and

(b)the following proceedings in the Crown Court-

(i)an appeal against conviction or sentence;

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

(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).

(2) Sub-paragraphs (3) and (4) apply where, following a trial, an order is made for a new trial and the same trial advocate appears at both trials where-

(a)the defendant is an assisted person at both trials; or

(b)the defendant is an assisted person at the new trial only; or

(c)the new trial is a cracked trial or guilty plea.

(3) Subject to sub-paragraph (4), in respect of a new trial, or if the trial advocate so elects, in respect of the first trial, the graduated fee payable to the trial advocate must be calculated in accordance with Part 2 or Part 3, as appropriate, except that the fee must be reduced by-

(a)30%, where the new trial started within one month of the conclusion of the first trial;

(b)20%, where the new trial did not start within one month of the conclusion of the first trial;

(c)40%, where the new trial becomes a cracked trial or guilty plea within one month of the conclusion of the first trial; or

(d)25% where the new trial becomes a cracked trial or guilty plea more than one month after the conclusion of the first trial.

(4) Where-

(a)in relation to the first trial, the case was committed or sent for trial to the Crown Court on the election of a defendant where the magistrates' court had determined the case to be suitable for summary trial; and

(b)the new trial becomes a cracked trial or guilty plea,

the fee payable to the trial advocate must be-

(i)the graduated fee calculated in accordance with Part 2, in respect of the first trial; and

(ii)the fixed fee set out in paragraph 10 in respect of the new trial.

(5) Sub-paragraphs (6) and (7) apply in the circumstances set out in sub-paragraph (2) but where a different trial advocate appears for the assisted person at each trial.

(6) Subject to sub-paragraph (7), in respect of each trial, the graduated fee payable to the trial advocate must be calculated in accordance with Part 2 or Part 3 as appropriate.

(7) Where-

(a)in relation to the first trial, the case was committed or sent for trial to the Crown Court on the election of a defendant where the magistrates' court had determined the case to be suitable for summary trial; and

(b)the new trial becomes a cracked trial or guilty plea,

the fee payable to the trial advocate at the first trial must be the graduated fee, calculated in accordance with Part 2 and the fee payable to the trial advocate at the new trial must be the fixed fee set out in paragraph 10.

(8) Where following a case on indictment a Newton hearing takes place-

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

(b)the length of the trial is to 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 do not apply; and

(d)no fee is payable under paragraph 15 in respect of the Newton hearing.

(9) Sub-paragraph (10) applies where proceedings are-

(a)sent for trial to the Crown Court; or

(b)transferred to the Crown Court under-

(i)section 4 of the Criminal Justice Act 1987(11) (transfer of serious fraud cases); or

(ii)section 53 of the Criminal Justice Act 1991(12) (transfer of certain cases involving children).

(10) Where, at any time after proceedings are sent or transferred to the Crown Court as referred to in sub-paragraph (9), they are-

(a)discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985(13) (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(14) (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 paragraph 22 apply.

(11) 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 (10),

must be treated as a guilty plea.

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 are deemed to fall within Class H;

(b)conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977(15) (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(16) (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 advocate making the claim under regulation 4 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 includes 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 trial advocate must elect whether that hearing falls within the same Class as the indictable offence to which it relates or within Class D; and

(g)where in a case on indictment a restriction order is made under section 41 of the Mental Health Act 1983(17) (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 an advocate 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, the advocate may apply to the appropriate officer when lodging the claim for fees to reclassify the offence.

(3) The appropriate officer must, in light of the objections made by the advocate-

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

(b)reclassify the offence,

and must notify the advocate of the decision.

PART 2Graduated Fees for Trial

Calculation of Graduated Fees

4. The amount of the graduated fee for a single trial advocate representing one assisted person being tried on one indictment in the Crown Court in a trial lasting one to 40 days must be calculated in accordance with the following formula-

Table of fees

5. For the purposes of paragraph 4 the basic fee (B), the daily attendance fee (D), the evidence uplift (E) and the witness uplift (W) appropriate to any offence are those specified in the table following this paragraph in accordance with the Class within which that offence falls.

PART 3Graduated Fees for Guilty Pleas and Cracked Trials

Scope of Part 3

6. Subject to paragraph 22, this Part does not apply to a case committed or sent for trial to the Crown Court on the election of a defendant where the magistrates' court has determined the case to be suitable for summary trial.

Calculation of graduated fees in guilty pleas and cracked trials

7.-(1) The amount of the graduated fee for a single trial advocate representing one assisted person in a guilty plea or cracked trial is-

(a)where the case is a guilty plea or a trial which cracks in the first third-

(i)the basic fee specified in Table A following paragraph 8 as appropriate to the offence with which the assisted person is charged, and the category of trial advocate; and

(ii)the evidence uplift, as appropriate to the number of pages of prosecution evidence, calculated in accordance with that table; and

(b)where the case is a trial which cracks in the second or last third-

(i)the basic fee specified in Table B following paragraph 8 as appropriate to the offence with which the assisted person is charged and the category of trial advocate; and

(ii)the evidence uplift, as appropriate to the number of pages of prosecution evidence, calculated in accordance with that table.

(2) Where-

(a)the trial of a case does not commence on the date first fixed; or

(b)the case is not taken and disposed of from the first warned list in which it is entered,

the basic fee and evidence uplift for the offence are those specified for the last third in Table B following paragraph 8.

(3) In this paragraph, and in the tables following paragraph 8, references to the first, second and last third are references to the first, second and last third-

(a)where a case is first listed for trial on a fixed date, of the period of time beginning with the day after the date on which the case is so listed and ending with the day before the date so fixed;

(b)where the case is first placed in a warned list, of the period of time beginning with the day after the date on which the case is so placed and ending with the day before the date of the start of that warned list,

and where the number of days in this period of time cannot be divided by three equally, any days remaining after such division must be added to the last third.

(4) Where a graduated fee is calculated in accordance with this Part for the purposes of paragraph 2(3), the fee must be calculated as if the trial had cracked in the last third.

Tables of fees

8. Subject to paragraph 7, the basic fee and evidence uplift appropriate to any offence are specified in the tables following this paragraph in accordance with the Class within which that offence falls, the category of trial advocate and whether the case is a guilty plea, a trial which cracks in the first third or a trial which cracks in the second or last third.

PART 4Fixed Fee for Guilty Pleas and Cracked Trials

Scope of Part 4

9. This Part applies to a case committed or sent for trial to the Crown Court on the election of a defendant where the magistrates' court has determined the case to be suitable for summary trial.

Fixed fee for guilty pleas or cracked trials

10. The fee payable to an advocate in relation to a guilty plea or cracked trial to which this Part applies is £194 per proceedings.

PART 5Fixed Fees

General provisions

11.-(1) All work undertaken by an advocate in a case to which Part 4 applies is included within the fee set out in paragraph 10 except for attendance at a confiscation hearing to which paragraph 14 applies.

(2) Except as provided under this Part, all work undertaken by an advocate in a case to which Part 3 applies is included within the basic fee (B) specified in the table following paragraph 5, or that following paragraph 8, as appropriate to-

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

(b)the category of advocate; and

(c)whether the case is a cracked trial, guilty plea or trial.

Fees for plea and case management hearings and standard appearances

12.-(1) The fee payable in respect of-

(a)an appearance by the trial advocate or substitute advocate at the first plea and case management hearing or pre-trial review; and

(b)up to four standard appearances by the trial advocate or substitute advocate,

is included within the basic fee (B) specified in the table following paragraph 5, or that following paragraph 8, as appropriate to the offence for which the assisted person is tried and the category of trial advocate.

(2) The fee payable in respect of an appearance by the trial advocate or substitute advocate at a plea and case management hearing or standard appearance not included in sub-paragraph (1) is specified in the table following paragraph 24 as appropriate to the category of trial advocate or substitute advocate.

(3) The fee payable for preparing and filing the plea and case management questionnaire where no oral hearing takes place is specified in the table following paragraph 24 as appropriate to the category of trial advocate or substitute advocate.

(4) This paragraph does not apply to a standard appearance which is or forms part of the main hearing in a case or to a hearing for which a fee is payable elsewhere under this Schedule.

Fees for abuse of process, disclosure, admissibility and withdrawal of plea hearings

13.-(1) This paragraph applies to-

(a)the hearing of an application to stay the case on indictment or any count on the ground that the proceedings constitute an abuse of the process of the court;

(b)any hearing relating to the question of whether any material should be disclosed by the prosecution to the defence or the defence to the prosecution (whether or not any claim to public interest immunity is made);

(c)the hearing of an application under section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965(18) (issue of witness summons on application to Crown Court) for disclosure of material held by third parties;

(d)any hearing relating to the question of the admissibility as evidence of any material; and

(e)the hearing of an application to withdraw a plea of guilty where the application is-

(i)made by an advocate other than the advocate who appeared at the hearing at which the plea of guilty was entered; and

(ii)unsuccessful.

(2) Where a hearing to which this paragraph applies is held on any day of the main hearing of a case on indictment, no separate fee is payable in respect of attendance at the hearing, but the hearing is included in the length of the main hearing for the purpose of calculating the fees payable.

(3) Where a hearing to which this paragraph applies is held prior to the first or only day of the main hearing, it is not included in the length of the main hearing for the purpose of calculating the fees payable and the trial advocate or substitute advocate must be remunerated for attendance at such a hearing-

(a)in respect of any day where the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the table following paragraph 24 as appropriate to the category of trial advocate or substitute advocate; or

(b)in respect of any day where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in the table following paragraph 24 as appropriate to the category of trial advocate or substitute advocate.

Fees for confiscation hearings

14.-(1) This paragraph applies to-

(a)a hearing under Part 2 of the Proceeds of Crime Act 2002(19) (confiscation: England and Wales);

(b)a hearing under section 2 of the Drug Trafficking Act 1994(20) (confiscation orders); and

(c)a hearing under section 71 of the Criminal Justice Act 1988(21) (confiscation orders).

(2) A hearing to which this paragraph applies is not included in the length of the main hearing or of any sentencing hearing for the purpose of calculating the fees payable, and the trial advocate or substitute advocate must be remunerated in respect of such a hearing-

(a)where the number of pages of evidence is fewer than 51, for attendance-

(i)in respect of any day when the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the first section of the table following this sub-paragraph; or

(ii)in respect of any day when the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in the first section of that table,

as appropriate to the category of trial advocate or substitute advocate;

(b)where the number of pages of evidence is between 51 and 1000-

(i)at the rates for the relevant number of pages set out in the second section of the table following this sub-paragraph; and

(ii)where the hearing lasts for more than one day, for attendance on subsequent days or half-days at the daily rate or half-daily rate set out in the first section of that table,

as appropriate to the category of trial advocate or substitute advocate; or

(c)where the number of pages of evidence exceeds 1000-

(i)at the rates for 751 to 1000 pages set out in the second section of the table following this sub-paragraph;

(ii)with such fee as the appropriate officer considers reasonable for preparation in respect of the pages in excess of 1000, at the hourly rates for preparation set out in the third section of that table; and

(iii)where the hearing lasts for more than one day, for attendance on subsequent days or half-days at the daily rate or half-daily rate set out in the first section of that table,

as appropriate to the category of trial advocate or substitute advocate.

(3) In sub-paragraph (2) "evidence" means-

(a)the statement of information served under section 16 of the Proceeds of Crime Act 2002 and relied on by the prosecution for the purposes of a hearing under Part 2 of that Act, or a similar statement served and so relied on for the purposes of a hearing under section 2 of the Drug Trafficking Act 1994 or under section 71 of the Criminal Justice Act 1988 and, in each case, any attached annexes and exhibits;

(b)any other document which-

(i)is served as a statement or an exhibit for the purposes of the trial;

(ii)is specifically referred to in, but not served with, a statement mentioned in paragraph (a); and

(iii)the prosecution state that they intend to rely on in the hearing; and

(c)any written report of an expert obtained with the prior authority of the Lord Chancellor under regulation 13 or allowed by the appropriate officer under these Regulations, and any attached annexes and exhibits, other than documents contained in such annexes or exhibits which have also been served under paragraph (a) or (b) or which consist of financial records or similar data.

Fees for sentencing hearings

15.-(1) This paragraph applies to 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(22) (deferment of sentence).

(2) The fee payable to an advocate for appearing at a hearing to which this paragraph applies is that set out in the table following paragraph 24 as appropriate to the category of trial advocate or substitute advocate and the circumstances of the hearing.

Fees for ineffective trials

16. The fee set out in the table following paragraph 24 as appropriate to the category of trial advocate is payable in respect of each day on which the case was listed for trial but did not proceed on the day for which it was listed, for whatever reason.

Fees for special preparation

17.-(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable under Part 2 or Part 3-

(a)it has been necessary for an advocate to do work by way of preparation substantially in excess of the amount normally done for cases of the same type because the case involves a very unusual or novel point of law or factual issue;

(b)the number of pages of prosecution evidence, as defined in paragraph 1(2), exceeds 10,000 and the appropriate officer considers it reasonable to make a payment in excess of the graduated fee payable under this Schedule; or

(c)a documentary or pictorial exhibit is served by the prosecution in electronic form where-

(i)the exhibit has never existed in paper form; and

(ii)the appropriate officer-

(aa)does not consider it appropriate to include the exhibit in the pages of prosecution evidence; and

(bb)considers it reasonable to make a payment in respect of the exhibit in excess of the graduated fee.

(2) Where this paragraph applies, a special preparation fee may be paid, in addition to the graduated fee payable under Part 2 or Part 3.

(3) The amount of the special preparation fee must be calculated-

(a)where sub-paragraph (1)(a) applies, from the number of hours preparation in excess of the amount the appropriate officer considers reasonable for cases of the same type;

(b)where sub-paragraph (1)(b) applies, from the number of hours which the appropriate officer considers reasonable to read the excess pages; and

(c)where sub-paragraph (1)(c) applies, from the number of hours which the appropriate officer considers reasonable to view the prosecution evidence,

and in each case using the hourly fee rates set out in the table following paragraph 24 as appropriate to the category of trial advocate.

(4) Any claim for a special preparation fee under this paragraph must be made by an instructed advocate, whether or not the instructed advocate did the work claimed for.

(5) An instructed advocate claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim.

(6) In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case, including, where special preparation work has been undertaken by more than one advocate, the benefit of such work to the trial advocate.

Fees for wasted preparation

18.-(1) A wasted preparation fee may be claimed where a trial advocate in any case to which this paragraph applies is prevented from representing the assisted person in the main hearing by any of the following circumstances-

(a)the trial advocate is instructed to appear in other proceedings at the same time as the main hearing in the case and has been unable to secure a change of date for either the main hearing or the other proceedings;

(b)the date fixed for the main hearing is changed by the court despite the trial advocate's objection;

(c)the trial advocate has withdrawn from the case with the leave of the court because of the trial advocate's professional code of conduct or to avoid embarrassment in the exercise of the trial advocate's profession;

(d)the trial advocate has been dismissed by the assisted person or the litigator; or

(e)the trial advocate is obliged to attend at any place by reason of a judicial office held by the trial advocate or other public duty.

(2) This paragraph applies to every case on indictment to which this Schedule applies provided that-

(a)the case goes to trial, and the trial lasts for five days or more; or

(b)the case is a cracked trial, and the number of pages of prosecution evidence exceeds 150.

(3) The amount of the wasted preparation fee must be calculated from the number of hours of preparation reasonably carried out by the trial advocate, using the hourly fee rates set out in the table following paragraph 24 as appropriate to the category of trial advocate, but no such fee is payable unless the number of hours of preparation is eight or more.

(4) Any claim for a wasted preparation fee under this paragraph must be made by an instructed advocate, whether or not the instructed advocate did the work claimed for.

(5) An instructed advocate claiming a wasted preparation fee must supply such information and documents as may be required by the appropriate officer as proof of the circumstances in which the instructed advocate was prevented from representing the assisted person and of the number of hours of preparation.

Fees for conferences and views

19.-(1) This paragraph applies to the following types of work-

(a)attendance by the trial advocate at pre-trial conferences with prospective or actual expert witnesses not held at court;

(b)attendance by the trial advocate at views at the scene of the alleged offence;

(c)attendance by the trial advocate at pre-trial conferences with the assisted person not held at court;

(d)reasonable travelling time by the trial advocate for the purpose of attending a view at the scene of the alleged offence; or

(e)reasonable travelling time by the trial advocate for the purpose of attending a pre-trial conference with the assisted person or prospective or actual expert witness, where the appropriate officer is satisfied that the assisted person or prospective or actual expert witness was unable or could not reasonably have been expected to attend a conference at the trial advocate's chambers or office.

(2) The fees payable in respect of attendance at the first three pre-trial conferences or views, as set out in sub-paragraph (1)(a) to (c), are included in the basic fee (B) specified in the table following paragraph 5, or that following paragraph 8, as appropriate to the offence for which the assisted person is tried, the category of trial advocate and whether the case is a guilty plea, cracked trial or trial, provided that the trial advocate satisfies the appropriate officer that the work was reasonably necessary.

(3) The fee specified in the table following paragraph 24 as appropriate to the category of trial advocate is payable in the following circumstances, provided that the trial advocate satisfies the appropriate officer that the work was reasonably necessary-

(a)for trials lasting not less than 21 and not more than 25 days, and cracked trials where it was accepted by the court at the plea and case management hearing that the trial would last not less than 21 days and not more than 25 days, one further pre-trial conference or view not exceeding two hours;

(b)for trials lasting not less than 26 and not more than 35 days, and cracked trials where it was accepted by the court at the plea and case management hearing that the trial would last not less than 26 days and not more than 35 days, two further pre-trial conferences or views each not exceeding two hours; and

(c)for trials lasting not less than 36 days, and cracked trials where it was accepted by the court at the plea and case management hearing that the trial would last not less than 36 days and not more than 40 days, three further pre-trial conferences or views each not exceeding two hours.

(4) Travel expenses must be paid for all conferences and views set out in sub-paragraph (1)(a) to (c), provided that the trial advocate satisfies the appropriate officer that they were reasonably incurred.

(5) Travelling time must be paid for all conferences and views set out in sub-paragraph (1)(a) to (c), provided that the trial advocate satisfies the appropriate officer that it was reasonable.

Fees for appeals, committals for sentence and breach hearings

20.-(1) Subject to sub-paragraphs (4) and (5) and paragraph 26 the fee payable to a trial advocate in any of the hearings referred to in paragraph 2(1)(b) is the fixed fee specified in the table following paragraph 24.

(2) Where a hearing referred to in paragraph 2(1)(b) is listed but cannot proceed because of the failure of the assisted person or a witness to attend, the unavailability of a pre-sentence report, or other good reason, the fee payable to the advocate is the fixed fee specified in the table following paragraph 24.

(3) Where-

(a)a bail application;

(b)a mention hearing; or

(c)any other application,

takes place in the course of a hearing referred to in paragraph 2(1)(b), the fee payable to the advocate is the fixed fee specified in the table following paragraph 24.

(4) Where it appears to the appropriate officer that the fixed fee allowed under sub-paragraph (1) would be inappropriate taking into account all of the relevant circumstances of the case the appropriate officer may instead allow fees of such amounts as appear to the appropriate officer to be reasonable remuneration for the relevant work in accordance with sub-paragraph (5).

(5) The appropriate officer may allow any of the following classes of fees to an advocate in respect of work allowed by the appropriate officer under this paragraph-

(a)a fee for preparation including, where appropriate, the first day of the hearing including, where they took place on that day-

(i)short conferences;

(ii)consultations;

(iii)applications and appearances (including bail applications);

(iv)views at the scene of the alleged offence; and

(v)any other preparation;

(b)a refresher fee for any day or part of a day for which a hearing continued, including, where they took place on that day-

(i)short conferences;

(ii)consultations;

(iii)applications and appearances (including bail applications);

(iv)views at the scene of the alleged offence; and

(v)any other preparation; and

(c)subsidiary fees for-

(i)attendance at conferences, consultations and views at the scene of the alleged offence not covered by paragraph (a) or (b);

(ii)written advice on evidence, plea, appeal, case stated or other written work; and

(iii)attendance at applications and appearances (including bail applications and adjournments for sentence) not covered by paragraph (a) or (b).

Fees for contempt proceedings

21.-(1) Subject to sub-paragraph (2), remuneration for advocates in proceedings referred to in section 14(g) 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 14(g) of the Act, remuneration must be at the rates specified in the table following this sub-paragraph, as appropriate to the category of advocate.

Discontinuance or dismissal of sent or transferred proceedings

22.-(1) This paragraph applies to proceedings which are-

(a)sent for trial to the Crown Court; 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 referred to in sub-paragraph (1) 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(23) the advocate must be paid 50% of the basic fee (B) for a guilty plea, as specified in the table following paragraph 8 as appropriate to the offence for which the assisted person is charged and the category of advocate.

(3) Where proceedings referred to in sub-paragraph (1) 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 advocate must be paid a graduated fee calculated in accordance with paragraph 7, as appropriate for representing an assisted person in a guilty plea.

(4) Sub-paragraph (5) 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.

(5) 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 case is remitted to the magistrates' court in accordance with paragraph 10(3)(a), 13(2) or 15(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,

the advocate instructed in the proceedings must be paid a graduated fee calculated in accordance with paragraph 7, as appropriate for representing an assisted person in a guilty plea.

(6) Where an application for dismissal is made under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998, section 6 of the Criminal Justice Act 1987 or paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal), the advocate must be remunerated for attendance at the hearing of the application for dismissal-

(a)in respect of any day where the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the table following paragraph 24 as appropriate to the category of advocate; or

(b)in respect of any day where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in that table as appropriate to the category of advocate,

provided that a fee is not payable elsewhere under this Schedule in respect of any day of the hearing.

(7) Where an application for dismissal is made under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998, 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 case is remitted to the magistrates' court in accordance with paragraph 10(3)(a), 13(2) or 15(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,

in respect of the first day of the hearing of the application to dismiss, the advocate instructed in the proceedings must be paid a graduated fee calculated in accordance with paragraph 7, as appropriate for representing an assisted person in a guilty plea.

(8) Where an advocate represents more than one assisted person in proceedings referred to in sub-paragraph (1), the advocate must be paid a fixed fee of 20% of-

(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 8 where sub-paragraph (3), (4) or (5) applies, as appropriate for the circumstances set out in the relevant sub-paragraph,

in respect of each additional assisted person the advocate represents.

Noting brief fees

23. The fee payable to an advocate retained solely for the purpose of making a note of any hearing must be the daily fee set out in the table following paragraph 24.

Fixed fees

24. The table following this paragraph sets out the fixed fees payable in relation to the category of work specified in the first column of the table.

PART 6Miscellaneous

Identity of instructed advocate

25.-(1) Where an instructed advocate is appointed before the plea and case management hearing, the instructed advocate must notify the Court in writing as soon as the appointment is made and, where appropriate, must confirm whether the instructed advocate is the leading instructed advocate or the led instructed advocate.

(2) Where the section 16 determination provides for representation by a single advocate and no instructed advocate has been notified to the Court in accordance with sub-paragraph (1)-

(a)the barrister or solicitor advocate who attends the plea and case management hearing is deemed to be the instructed advocate; and

(b)the Court must make a written record of this fact.

(3) Where the section 16 determination provides for representation by a single advocate and no barrister or solicitor advocate attends the plea and case management hearing-

(a)the barrister or solicitor advocate who attends the next hearing in the case is deemed to be the instructed advocate; and

(b)the Court must make a written record of this fact.

(4) Where the section 16 determination provides for representation by more than one advocate, and no leading instructed advocate has been notified to the Court in accordance with sub-paragraph (1), the leading advocate who attends-

(a)the plea and case management hearing; or

(b)where no leading advocate attends the plea and case management hearing, the next hearing in the case attended by a leading advocate,

is deemed to be the leading instructed advocate, and the Court must make a written record of this fact.

(5) Where the section 16 determination provides for representation by more than one advocate, and no led instructed advocate has been notified to the Court in accordance with sub-paragraph (1), the led advocate who attends-

(a)the plea and case management hearing; or

(b)where no led advocate attends the plea and case management hearing, the next hearing in the case attended by a led advocate,

is deemed to be the led instructed advocate, and the Court must make a written record of this fact.

(6) Where a section 16 determination is amended after the plea and case management hearing to provide for representation by more than one advocate-

(a)the additional instructed advocate must notify the Court in writing of the additional instructed advocate's appointment within 7 days of the date on which the section 16 determination is amended; and

(b)each instructed advocate must notify the Court whether that instructed advocate is the leading instructed advocate or the led instructed advocate.

(7) Where no additional instructed advocate has been notified to the Court in accordance with sub-paragraph (6)(a), the advocate who attends the next hearing in the case is deemed to be an instructed advocate and the Court must record in writing whether that instructed advocate is the leading instructed advocate or the led instructed advocate, as appropriate to the circumstances of the case.

(8) Where-

(a)a case ceases to be a Very High Cost Case (in relation to fees claimed by advocates); and

(b)none of sub-paragraphs (1) to (7) applies,

the instructed advocate must notify the Court in writing of the instructed advocate's appointment within 7 days of the case ceasing to be a Very High Cost Case.

(9) The Court must attach-

(a)any notice received under sub-paragraph (1), (6) or (8); and

(b)any record made by it under sub-paragraph (2), (3), (4), (5) or (7),

to the representation order.

(10) An instructed advocate must remain as instructed advocate at all times, except where-

(a)a date for trial is fixed at or before the plea and case management hearing and the instructed advocate is unable to conduct the trial due to the instructed advocate's other pre-existing commitments;

(b)the instructed advocate is dismissed by the assisted person or the litigator; or

(c)the instructed advocate is required to withdraw because of his professional code of conduct.

(11) Where, in accordance with sub-paragraph (10), an instructed advocate withdraws, the instructed advocate must-

(a)immediately notify the court of the withdrawal-

(i)in writing; or

(ii)where the withdrawal takes place at a plea and case management hearing, orally; and

(b)within 7 days of the date of the withdrawal, notify the court in writing of the identity of a replacement instructed advocate, who must fulfil all the functions of an instructed advocate in accordance with these Regulations.

(12) This paragraph does not apply to a claim for fees under paragraph 32, 33 or 34.

Payment of fees to instructed advocate

26.-(1) In accordance with regulation 23 the appropriate officer must notify each instructed advocate of the total fees payable and authorise payment to the instructed advocate accordingly.

(2) Payment of the fees in accordance with sub-paragraph (1) must be made to each instructed advocate.

(3) Where the section 16 determination provides for representation by a single advocate, the instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who has undertaken work on the case.

(4) Where there are two instructed advocates for an assisted person, payment must be made to each instructed advocate individually, and-

(a)the leading instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who have undertaken work on the case of a type for which a leading advocate is responsible; and

(b)the led instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who have undertaken work on the case of a type for which a led advocate is responsible.

(5) This paragraph does not apply to a claim for fees under paragraph 32, 33 or 34.

Additional charges and additional cases

27.-(1) Where an assisted person is charged with more than one offence on one indictment, the fee payable to the trial advocate under this Schedule must be based on whichever of those offences the trial advocate selects.

(2) Where two or more cases to which this Schedule applies involving the same trial advocate are heard concurrently (whether involving the same or different assisted persons)-

(a)the trial advocate must select one case ("the principal case"), which must be treated for the purposes of remuneration in accordance with this Schedule;

(b)in respect of the main hearing in each of the other cases the trial advocate must be paid a fixed fee of 20% of-

(i)the basic fee (B) specified in the table following paragraph 5 or that following paragraph 8, as appropriate, for the principal case, where that is a case falling within paragraph 2(1)(a); or

(ii)the fixed fee for the principal case, where that is a case falling within paragraph 2(1)(b) or paragraph 10.

(3) Nothing in sub-paragraphs (4) to (6) permits a fixed fee under Part 5, other than one to which paragraph 14 applies, to be paid in a case to which Part 4 applies.

(4) Where a trial advocate or substitute advocate appears at a hearing specified in paragraph 12, 13, 14, 15 or 16, forming part of two or more cases involving different assisted persons, the trial advocate or substitute advocate must be paid-

(a)in respect of the first such case, the fixed fee for that hearing specified in the table following paragraph 24; and

(b)in respect of each of the other cases, 20% of that fee.

(5) Subject to sub-paragraphs (1) to (4), where a trial advocate or substitute advocate appears at a hearing forming part of two or more cases, the trial advocate or substitute advocate must be paid the fixed fee for that hearing specified in the table following paragraph 24 in respect of one such case, without any increase in respect of the other cases.

(6) Where a trial advocate selects-

(a)one offence, in preference to another offence, under sub-paragraph (1); or

(b)one case as the principal case, in preference to another case, under sub-paragraph (2),

that selection does not affect the trial advocate's right to claim any of the fees set out in the table following paragraph 24 to which the trial advocate would otherwise have been entitled.

Multiple advocates

28. Where a section 16 determination provides for representation by three advocates in a case the provisions of this Schedule apply, and the fees payable to the led juniors in accordance with Part 2 or Part 3 are payable to each led junior who is instructed in the case.

Non-local appearances

29. Where an advocate is instructed to appear in a court which is not within 40 kilometres of the advocate's office or chambers, the appropriate officer may allow an amount for travelling and other expenses incidental to that appearance, provided that the amount must not be greater than the amount, if any, which would be payable to a trial advocate from the nearest local Bar or the nearest advocate's office (whichever is the nearer) unless the advocate instructed to appear has obtained prior approval under regulation 13 for the incurring of such expenses or can justify the attendance having regard to all the relevant circumstances of the case.

Trials lasting over 40 days

30. Where a trial exceeds 40 days, the trial advocate must be paid a fee as set out in the table following this paragraph, as appropriate to the category of trial advocate and the Class of Offence, for each day by which the trial exceeds 40 days on which the trial advocate attends at court.

Assisted person unfit to plead or stand trial

31. 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 graduated fee in accordance with Part 2 or Part 3;

(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 trial advocate must be paid-

(i)a graduated fee calculated in accordance with paragraph 4 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(24) (finding that the accused did the act or made the omission charged against him); or

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

whichever the trial advocate elects; and

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

(i)a graduated fee calculated in accordance with paragraph 4 as appropriate to the length of the fitness hearing; or

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

whichever the trial advocate elects.

Cross examination of witness

32.-(1) Where in any case on indictment an advocate is retained solely for the purpose of cross-examining a witness under section 38 of the Youth Justice and Criminal Evidence Act 1999(25) (defence representation for purposes of cross-examination), the advocate must be paid a graduated fee calculated in accordance with paragraph 4.

(2) For the purposes of this paragraph the daily attendance fee (D) is as set out in the table following paragraph 5 as appropriate to the number of days of attendance at court by the advocate.

Provision of written or oral advice

33.-(1) Where in any case on indictment an advocate is assigned pursuant to a section 16 determination solely for the purpose of providing written or oral advice, the advocate must be paid for the reasonable number of hours of preparation for that advice using the hourly fee rates for special preparation set out in the table following paragraph 24 as appropriate to the category of trial advocate.

(2) An advocate claiming a fee for advice under this paragraph may apply to the appropriate officer to redetermine the fee under regulation 28 and the advocate must supply such information and documents as may be required by the appropriate officer as proof of the number of hours of preparation.

Mitigation of sentence

34.-(1) Where in any case on indictment an advocate is assigned pursuant to a section 16 determination to appear at a sentencing hearing solely for the purpose of applying to the court to mitigate the assisted person's sentence, the advocate must be paid in respect of that appearance the fee specified in the table following paragraph 24 together with a fee calculated from the reasonable number of hours of preparation for that appearance using the hourly fee rates for special preparation set out in the table following paragraph 24 as appropriate to the category of trial advocate.

(2) An advocate claiming an hourly preparation fee under this paragraph may apply to the appropriate officer to redetermine such hourly fee under regulation 28 and the advocate must supply such information and documents as may be required by the appropriate officer as proof of the number of hours of preparation.

PART 7Table of Offences

Regulation 5

SCHEDULE 2Litigators' Graduated Fee Scheme

PART 1Definitions and Scope

Interpretation

1.-(1) In this Schedule-

"case" means proceedings in the Crown Court against any one assisted person-

and a case falling within paragraph (c) must be treated as a separate case from the proceedings in which the order was made;

"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 paragraph 5(1) and (2).

(2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3) The number of pages of prosecution evidence 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.

(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(5) A documentary or pictorial exhibit which-

(a)has been served by the prosecution in electronic form; and

(b)has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances.

(6) 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-paragraphs (2) to (5) or as nearly in accordance with those sub-paragraphs as possible as the nature of the case permits.

(7) A reference to the Table of Offences in this Schedule is to the Table of Offences in Part 7 of Schedule 1 and a reference to a Class of Offence in this Schedule is to the Class in which that offence is listed in the Table of Offences.

Application

2.-(1) Subject to sub-paragraphs (2) to (7), 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)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(26) (deferment of sentence);

(d)any other post-sentence hearing.

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

(a)sent for trial to the Crown Court; or

(b)transferred to the Crown Court under-

(i)section 4 of the Criminal Justice Act 1987(27) (transfer of serious fraud cases); or

(ii)section 53 of the Criminal Justice Act 1991(28) (transfer of certain cases involving children).

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

(a)discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985(29) (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(30) (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 21 and 22 apply.

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

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

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

(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),

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 (in relation to fees claimed by litigators) lasts over 200 days, it must be treated as if it had lasted 200 days.

(7) For the purposes of this Schedule, where the number of pages of prosecution evidence in a case which is not a Very High Cost Case (in relation to fees claimed by litigators) exceeds-

(a)the PPE Cut-off figure specified in the table following paragraph 5(2) as appropriate to the offence for which the assisted person is to be tried and the length of trial; and

(b)10,000,

the case must be treated as though it had 10,000 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 are deemed to fall within Class H;

(b)conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977(31) (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(32) (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 regulation 5 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 includes 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(33) (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, the litigator may apply to the appropriate officer, when lodging the 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 the decision.

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

Scope

4. Subject to paragraph 21, this Part does not apply to a guilty plea or cracked trial in a case committed or sent for trial to the Crown Court on the election of a defendant where the magistrates' court has determined the case to be suitable for summary trial.

Pages of Prosecution Evidence

5.-(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.