The Criminal Defence Service (Funding) (Amendment) Order 2011

• Citation: S.I. 2011/2065
• Sections: 33

Section 1 Citation, commencement, application and interpretation

(1) This Order may be cited as the Criminal Defence Service (Funding) (Amendment) Order 2011 and comes into force on 3rd October 2011.

(2) In this Order—

(a) “representation order” means a document granting a right to representation;

(b) “the 2007 Order ” means the Criminal Defence Service (Funding) Order 2007 .

(3) In this Order, unless the context requires otherwise, a reference to an article or schedule by number alone is a reference to the article or schedule so numbered in the 2007 Order.

(4) This Order applies to proceedings in which a representation order is granted on or after 3 rd October 2011.

Section 2 Amendments to the 2007 Order

The 2007 Order is amended as follows.

Section 3 Amendments to the 2007 Order

In article 2, omit the definitions of “Very High Cost Case contract” and “Very High Cost Case (Crime) Panel”.

Section 4 Amendments to the 2007 Order

In article 3—

(a) before paragraph (2), insert—

(1A) Article 4A applies to proceedings in magistrates’ courts only.

(b) in paragraph (2)—

(i) after “12A” insert “and 15A”; and

(ii) omit “and paragraph 12B of Schedule 2 to this Order and the related entry in the table following paragraph 14 of that Schedule”;

(c) in paragraph (6A), omit “except as provided in paragraph 25 of Schedule 2”.

Section 5 Amendments to the 2007 Order

After article 4 insert—

Funding of services in the magistrates’ court

(4A) Where a representation order is granted for proceedings in the magistrates’ court—

(a) any contract for the provision of representation must provide for the payment by the Commission at the fees and hourly rates set out in Schedule 5; and

(b) claims for the payment of expert services must be determined in accordance with article 15A.

Section 6 Amendments to the 2007 Order

In article 14, at the beginning of paragraph (6), insert “Subject to article 15A,”.

Section 7 Amendments to the 2007 Order

After article 15 insert—

Expert services

(15A)

(1) Subject to paragraph (2), the Commission may provide for the payment of expert services only at the fixed fees or at rates not exceeding the rates set out in Schedule 6.

(2) The appropriate officer may, in relation to a specific claim, increase the fixed fees or rates set out in Schedule 6 if that officer considers it reasonable to do so in exceptional circumstances as defined in paragraph (3).

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

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

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

Section 8 Amendments to the 2007 Order

In article 16, after paragraph (5) insert—

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

(7) In considering the rate at which to fund the expert service the Commission—

(a) must have regard to the rates set out in Schedule 6; and

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

Section 9 Amendments to the 2007 Order

In paragraph 1 of Schedule 1—

(a) in sub-paragraph (1) in the definition of “standard appearance”, after (g) insert—

(h) a sentencing hearing other than one falling within paragraph 2(1)(b)(ii) or paragraph 12(1);

(b) in sub-paragraph (2), after “but” insert “except as mentioned in sub-paragraph (2A)”; and

(c) after sub-paragraph (2) insert—

(2A) A document which has existed in paper form and which the prosecution has converted into digital form to enable service by means of electronic communication is included within the number of pages of prosecution evidence for the purposes of this Schedule.

Section 10 Amendments to the 2007 Order

In paragraph 2 of Schedule 1—

(a) in sub-paragraph (3), for “Sub-paragraph (4) applies” substitute “Sub-paragraphs (4) and (4A) apply”;

(b) at the beginning of sub-paragraph (4), insert “Subject to sub-paragraph (4A),”;

(c) after sub-paragraph (4) insert—

(4A) Where—

(a) in relation to the first trial, the case was committed 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 trial advocate will receive a graduated fee, calculated in accordance with Part 2, in respect of the first trial and the fixed fee set out in paragraph 7B in respect of the new trial.

(4B) Sub-paragraphs (5) and (5A) apply in the circumstances set out in sub-paragraph (3) but where a different trial advocate appears for the assisted person at each trial.

(5) Subject to sub-paragraph (5A), in respect of each trial the trial advocate will receive a graduated fee calculated in accordance with Part 2 or Part 3 as appropriate.

(5A) Where—

(a) in relation to the first trial, the case was committed 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 trial advocate at the first trial will receive a graduated fee, calculated in accordance with Part 2 and the trial advocate at the new trial will receive the fixed fee set out in paragraph 7B.

Section 11 Amendments to the 2007 Order

In Part 3 of Schedule 1, before paragraph 6, insert—

Scope of Part 3

(5A) This Part does not apply to a case committed to the Crown Court on the election of a defendant where the magistrates’ court has determined the case to be suitable for summary trial.

Section 12 Amendments to the 2007 Order

After Part 3 of Schedule 1 insert—

Fixed fee for Guilty Pleas and Cracked Trials

Scope of Part 3A

(7A) This Part applies to a case committed 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

(7B) The fee payable to an advocate in relation to a guilty plea or cracked trial to which this Part applies must be £203 per proceedings.

Section 13 Amendments to the 2007 Order

For paragraph 8 of Schedule 1 substitute—

(8)

(1) All work undertaken by an advocate in a case to which Part 3A applies is included within the fee set out in paragraph 7B except for attendance at a confiscation hearing to which paragraph 11 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 7, 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.

Section 14 Amendments to the 2007 Order

For paragraph 12(1) of Schedule 1 substitute—

(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 (deferment of sentence).

Section 15 Amendments to the 2007 Order

For paragraph 14(1)(c) of Schedule 1 substitute—

(c) any or all of the prosecution evidence as listed in paragraph 1(2)(a) to (d) is served in electronic form only, and does not fall within paragraph 1(2A), and the appropriate officer considers it reasonable to make a payment in excess of the graduated fee payable under this Schedule.

Section 16 Amendments to the 2007 Order

In the table following paragraph 19 of Schedule 1—

(a) in the second column of the entry for “Deferred sentencing hearing” omit “(a)”; and

(b) omit the entry for “Sentencing hearing”.

Section 17 Amendments to the 2007 Order

In paragraph 22 of Schedule 1—

(a) in sub-paragraph (1) omit “graduated”;

(b) in sub-paragraph (2)(b)(ii), after “(2)(1)(b)” insert “or paragraph 7B”;

(c) after sub-paragraph (2) insert—

(2A) Nothing in sub-paragraphs (3) to (5) permits a fixed fee under Part 4, other than one to which paragraph 11 applies, to be paid in a case to which Part 3A applies.

Section 18 Amendments to the 2007 Order

Omit paragraph 24A of Schedule 1.

Section 19 Amendments to the 2007 Order

In paragraph 1 of Schedule 2—

(a) in sub-paragraph (2), after “but” insert “except as mentioned in sub-paragraph (2A)”; and

(b) after sub-paragraph (2) insert—

(2A) A document which has existed in paper form and which the prosecution has converted into digital form to enable service by means of electronic communication is included within the number of pages of prosecution evidence for the purposes of this Schedule.

Section 20 Amendments to the 2007 Order

In Part 2 of Schedule 2—

(a) before paragraph 4, insert—

Scope of Part 2

(3A) This Part does not apply to a guilty plea or cracked trial in a case committed to the Crown Court on the election of a defendant where the magistrates’ court has determined the case to be suitable for summary trial.

(b) in the tables following paragraphs 4(1) and 6(2)—

(i) for the figures listed for payment in relation to class of offence A, substitute the figures listed for payment in relation to class of offence J; and

(ii) for the figures listed for payment in relation to class of offence G, substitute the figures listed for payment in relation to class of offence F;

(c) in the table following paragraph 4(2)—

(i) for the figures listed for payment in relation “PPE Cut off A”, substitute the figures listed for payment in relation to “PPE Cut off J”; and

(ii) for the figures listed for payment in relation to “PPE Cut off G”, substitute the figures listed for payment in relation to “PPE Cut off F”;

(d) for the table following paragraph 5 substitute the table in Part 1 of Schedule 1 to this Order;

(e) in the table following paragraph 6(3)—

(i) for the figures listed for payment in relation “Trial length proxy A”, substitute the figures listed for payment in relation to “Trial length proxy J”; and

(ii) for the figures listed for payment in relation to “Trial length proxy G”, substitute the figures listed for payment in relation to “Trial length proxy F”;

(f) for the tables following paragraph 7, and the headings to those tables, substitute the tables and headings in Part 2 of Schedule 1 to this Order;

(g) in the table following paragraph 8(3)—

(i) omit the rows for class of offence A and class of offence G;

(ii) in the rows for class of offence J, after “J” insert “and A”;

(iii) in the rows for class of offence F, after “F” insert “and G”.

Section 21 Amendments to the 2007 Order

After the table following paragraph 8 of Schedule 2 insert—

Fixed Fee for Guilty Pleas and Cracked Trials

Scope of Part 2A

(8A) This Part applies to a guilty plea or cracked trial in a case committed 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

(8B) The fee payable to a litigator in relation to a guilty plea or cracked trial to which this Part applies must be £362 per proceedings.

Defendant uplifts, Retrials and Transfers

Section 22 Amendments to the 2007 Order

In paragraph 9 of Schedule 2—

(a) after sub-paragraph (3)(d) insert—

(e) where appropriate the fee set out in paragraph 8B.

(b) after sub-paragraph (3) insert—

(4) In a case where the representation of one defendant would attract a fixed fee under Part 2A and the representation of one or more of the other defendants would attract a graduated fee under Part 2, the total fee is the fee falling within whichever of sub-paragraphs (3)(a) to (d) is appropriate.

Section 23 Amendments to the 2007 Order

For paragraph 10 of Schedule 2 substitute—

Retrials and Transfers

(10)

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

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

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

(2) Where—

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

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

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

(3) In sub-paragraph (2), “transfer” includes the grant of a representation order to an individual who, immediately before the grant of the order—

(a) had represented himself; or

(b) had been represented (otherwise than under a representation order) by the litigator named in the order,

and for the purposes of that sub-paragraph the litigator shall be treated as a new litigator.

(4) For the purposes of sub-paragraph (2), a case is not transferred to a new litigator where—

(a) a firm of solicitors is named as litigator in the representation order and the solicitor or other appropriately qualified person with responsibility for the case moves to another firm;

(b) a firm of solicitors is named as litigator in the representation order and the firm changes (whether by merger or acquisition or in some other way), but so that the new firm remains closely related to the firm named in the order; or

(c) a solicitor or other appropriately qualified person is named as litigator in the representation order and responsibility for the case is transferred to another solicitor or appropriately qualified person in the same firm or a closely related firm.

(5) For the purposes of sub-paragraph (2), where a case which has been transferred to a new litigator is transferred again, that new litigator—

(a) shall be treated as the original litigator, where the transfer takes place at any time before the trial or any retrial;

(b) shall be treated as a new litigator, where the transfer takes place during the trial or any retrial; and

(c) shall not receive any fee, where the transfer takes place after the trial or any retrial but before the sentencing hearing.

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

(7) In the table following this paragraph, the total fee means—

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

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

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

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

(e) in a cracked trial or guilty plea in a case to which Part 2A applies, the fixed fee set out in paragraph 8B.

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

(a) the original litigator will be remunerated in accordance with the individual Very High Cost Case contract entered into by that litigator; and

(b) the new litigator will be remunerated in accordance with the individual Very High Cost Case contract entered into by that litigator.

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

(10) Sub-paragraph (11) applies where—

(a) the case is a case to which Part 2A would apply if it resulted in a cracked trial or guilty plea; and

(b) at the time the case is transferred to a new litigator in accordance with sub-paragraph (2) it is not known whether the case would result in a cracked trial or guilty plea or whether it would proceed to trial.

(11) Where this sub-paragraph applies—

(a) for the purpose of a claim by the original litigator at the time of the transfer of the case, “total fee” in the table following this paragraph, means the fixed fee set out in paragraph 8B;

(b) the original litigator may, if the case proceeds to trial, claim the difference between the payment received at the time of transfer of the case and the payment that would have been due at that time if that payment had been based on the case proceeding to trial.

(12) A litigator may not be treated both as an original litigator and as a new litigator in a case.

Section 24 Amendments to the 2007 Order

For paragraph 11 of Schedule 2 substitute—

(11)

(1) All work undertaken by a litigator in a case to which Part 2A applies is included within the fee set out in paragraph 8B except for a defendant uplift as provided for in paragraph 17.

(2) Except as provided under this Part, remuneration for all work undertaken by a litigator in a case to which Part 2 applies is included within the fee set out in Part 2 of this schedule as appropriate to—

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

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

(c) the number of pages of prosecution evidence.

Section 25 Amendments to the 2007 Order

Omit paragraph 12B of Schedule 2 and the entry for “Committal proceedings” in the table following paragraph 14 of that Schedule.

Section 26 Amendments to the 2007 Order

For paragraph 15(1)(a) of Schedule 2 substitute—

(a) in respect of which a fee is payable under Part 2, where any or all of the prosecution evidence, as listed in paragraph 1(2)(a) to (d) is served in electronic form only and does not fall within paragraph 1(2A);

Section 27 Amendments to the 2007 Order

In paragraph 17 of Schedule 2—

(a) in sub-paragraph (3)(a), after “sub-paragraph (2)” insert “of paragraph 16”.

(b) after sub-paragraph (3)(b) insert—

(c) where appropriate the fee set out in paragraph 8B.

(c) after sub-paragraph (3) insert—

(4) In a case where the representation of one defendant would attract a fixed fee under Part 2A and the representation of one or more of the other defendants would attract a graduated fee under Part 2, the total fee in the table following this paragraph means the fee falling within sub-paragraph (3)(b).

Section 28 Amendments to the 2007 Order

Omit paragraph 25 of Schedule 2 and the tables following that paragraph.

Section 29 Amendments to the 2007 Order

(1) This article applies where a representation order is granted on or after 3rd October 2011 but before 1st April 2012.

(2) In Schedule 1—

(a) in the table following paragraph 5, Table A following paragraph 7 and the table following paragraph 25—

(i) for the figures listed for payment in relation to class of offence A, substitute the figures listed for payment in relation to class of offence J; and

(ii) for the figures listed for payment in relation to class of offence G, substitute the figures listed for payment in relation to class of offence F;

(b) for Table B following paragraph 7, and the heading to that table, substitute the table and heading set out in Schedule 2 to this Order.

Section 30 Amendments to the 2007 Order

(1) This article applies where a representation order is granted on or after 1st April 2012.

(2) In paragraph 7B of Schedule 1, for “£203” substitute “£194”.

(3) In Schedule 1—

(a) for the Table of Fees and Uplifts following paragraph 5, and the heading to that table, substitute the table and heading in Part 1 of Schedule 3 to this Order;

(b) for Tables A and B following paragraph 7, and the headings to those tables, substitute the tables and headings in Part 2 of Schedule 3 to this Order;

(c) for the table following paragraph 11(2)(c), substitute the table in Part 3 of Schedule 3 to this Order;

(d) for the table following paragraph 19, and the heading to that table, substitute the table and heading in Part 4 of Schedule 3 to this Order;

(e) for the table following paragraph 25, and the heading to that table, substitute the table and heading in Part 5 of Schedule 3 to this Order.

Section 31 Amendments to the 2007 Order

After Schedule 4, insert Schedules 5 and 6 set out in Schedule 4 to this Order.

Section 32 Revocation

Article 8 of the Criminal Defence Service (Funding)(Amendment No.2) Order 2010 is revoked and the amendments made by that article to Schedule 1 do not have effect.

Section 1 Interpretation of this Schedule

(1) Words and expressions used in this Schedule have the same meaning as in the 2010 Standard Crime Contract. The fees and rates in this Schedule are exclusive of value added tax.

(2) “2010 Standard Crime Contract” means the contract so named between the Commission and a provider for the provision of funded services, including the contract for signature, the standard terms, the schedule and the specification .

Higher and Lower Standard Fees table

Representation in the magistrates’ court

Hourly Rates (for recording time and to determine whether the Lower or Higher Standard Fee Limit has been reached, and for claiming costs in cases which fall outside the Standard Fee payment scheme).