The Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No. 2) Regulations 1996

Citation and commencement

1.  These Regulations may be cited as the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No. 2) Regulations 1996 and shall come into force on 1st January 1997.

Interpretation

2.  In these Regulations a reference to a regulation or Schedule by number alone means the regulation or Schedule so numbered in the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989(1).

Transitional provisions

3.—(1) Subject to paragraph (2), these Regulations shall apply to work done under a legal aid order made on or after 1st January 1997.

(2) Regulations 4F to 4J, as inserted by these Regulations, shall apply to all proceedings where a claim would become eligible for payment in accordance with the terms of any of those regulations on or after 1st January 1997.

Amendments to the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989

4.  In the Arrangement of Regulations:

(a) after the reference to regulation 4E, there shall be inserted the following: —

“4F.   Staged payments in long Crown Court cases

4G.   Interim payments for attendance at trial and refreshers

4H.   Advance payments for early preparation in Crown Court cases

4I.   Hardship payments

4J.   Computation of final claim”;

(b) after the reference to Schedule 2, there shall be inserted the following: —

“3.   Fees for advocacy in the Crown Court”.

5.  In regulation 2(1) the following definition shall be inserted after the definition of “legal executive”: —

““pleas and directions hearing” means any hearing which is fixed for the purpose of arraigning any person, unless it has been arranged that if that person pleads not guilty to one or more counts his trial shall follow immediately;”.

6.  In regulation 3(3), for “counsel or the solicitor” there shall be substituted “any legal representative”.

7.  After regulation 4E there shall be inserted the following regulations: —

“Staged payments in long Crown Court cases

4F.— (1) A legal representative may submit a claim to the appropriate authority for a staged payment of his fees in relation to criminal proceedings in the Crown Court.

(2) Where a claim is submitted in accordance with the provisions of this regulation, a staged payment shall be allowed where the appropriate authority is satisfied —

(a) that the claim relates to fees for a period of preparation of 100 hours or more, for which the legal representative will, subject to final determination of the costs payable, be entitled to be paid in accordance with these Regulations, and

(b) that the period from committal or transfer for trial (or from the date of the legal aid order, if this is later) to the conclusion of the Crown Court proceedings will be 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) all work falling within the definition of “preparation” in paragraph 1(1) of Schedule 3;

(b) attendance at pre-trial reviews and other hearings (other than a pleas and directions hearing) prior to the main hearing;

(c) preparation of applications, statements or notices for the purposes of section 6 or 9(5) of the Criminal Justice Act 1987(2), and

(d) all preparation within the meaning of regulation 6(1)(a) not falling within the preceding sub-paragraphs,

and is limited to preparation done before the commencement of the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 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 to be allowed for preparation falling within paragraph (3)(a), (b) or (c) shall be computed by reference to the number of hours of preparation which it appears to the appropriate authority, without prejudice to final determination of the costs payable, has been reasonably done multiplied by the relevant hourly rate namely —

(a) in the case of an authorised advocate who is a Queen’s Counsel, the hourly rate for subsidiary fees for Queen’s Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(b) in the case of an authorised advocate instructed as leading junior counsel pursuant to an order made under regulation 48 of the General Regulations, 75 per cent. of the hourly rate for subsidiary fees for Queen’s Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(c) in the case of any other authorised advocate, the hourly rate for subsidiary fees for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II.

(5) The amount to be allowed for preparation falling within paragraph (3)(d) shall be computed by reference to the number of hours of preparation which it appears to the appropriate authority, without prejudice to the final determination of the costs payable, has been reasonably done multiplied by the relevant hourly rate prescribed in Schedule 1 Part I, paragraph 1(1)(b) applicable to the class of work and the grade and office location of the fee-earner.

(6) A claim shall be submitted in such form and manner as the appropriate authority may direct, including such case plan as the appropriate authority may require for the purposes of paragraph (2)(a).

(7) A legal representative 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.

(8) Regulations 14 to 16 (redetermination etc.) shall not apply to a payment under this regulation.

Interim payment for attendance at trial and refreshers

4G.— (1) A legal representative may submit a claim to the appropriate authority for an interim payment in respect of attendance at court or refreshers where a Crown Court trial lasts for a qualifying period.

(2) Where a claim is submitted in accordance with the provisions of this regulation, an interim payment shall, without prejudice to the final determination of the costs payable, be allowed —

(a) to an authorised litigator, where he or a fee-earner representing him has attended at court on each day of the qualifying period;

(b) to an authorised advocate, where he has done work falling within paragraph 6(2)(b) or (c) of Schedule 3 on each day of the qualifying period.

(3) The qualifying period for the purposes of this regulation shall be 20 days (which need not be continuous), and a day will qualify as part of that period if the hearing begins at any time on that day.

(4) The amount payable in respect of each day which qualifies as part of the qualifying period shall be

(a) in the case of an authorised litigator —

(i) where the hearing begins before and ends after the luncheon adjournment, five times the hourly rate for an articled clerk or fee-earner of equivalent experience attending court where more than one legal representative is assigned as prescribed in Schedule 1 Part I, paragraph l(l)(b);

(ii) where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, two and a half times the hourly rate referred to in (i) above;

(b) in the case of an authorised advocate who is a Queen’s Counsel, the maximum amount of the full day refresher fee for Queen’s Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(c) in the case of an authorised advocate instructed as leading junior counsel pursuant to an order made under regulation 48 of the General Regulations, 75 per cent. of the maximum amount of the full day refresher fee for Queen’s Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(d) in the case of an authorised advocate retained solely for the purpose of making a note of any hearing, one-half of the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II;

(e) in the case of any other authorised advocate, the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II.

(5) A claim for an interim payment may be made in respect of a qualifying period and shall be submitted in such form and manner as the appropriate authority may direct.

(6) Further interim payments under this regulation may be claimed if the trial lasts for further qualifying periods.

(7) Regulations 14 to 16 (redetermination etc.) shall not apply to a payment under this regulation.

Advance payments for early preparation in Crown Court cases

4H.— (1) An advance payment under this regulation shall be payable in respect of every case in the Crown Court in which:

(a) a pleas and directions hearing is held;

(b) on or before the date of the pleas and directions hearing, a legal aid order has been made providing for an authorised advocate to represent the legally assisted person at the trial and a person (referred to in this regulation as “the advocate”) has been instructed for that purpose, and

(c) the advocate satisfies the appropriate authority that he has, in his capacity as an advocate, and at least 5 days before the date of the pleas and directions hearing, done work of all the types listed in paragraphs (a) to (d) of the definition of “preparation” in paragraph 1(1) of Schedule 3 (whether or not he also does work of those types afterwards),

unless at the pleas and directions hearing the legally assisted person pleads guilty to all counts or the prosecution declares an intention not to proceed to trial.

(2) Subject to paragraph (3), the amount of the advance payment under this regulation in respect of any such case shall be

(a) £250 where the advocate is a Queen’s Counsel;

(b) £170 where the advocate is not a Queen’s Counsel, but appears as leader to another advocate;

(c) £100 for any other advocate.

(3) Where the same advocate is instructed in two or more cases which are to be heard concurrently the advance payment shall be the amount specified in paragraph (2) in respect of the first case and one-fifth of that amount in respect of each of the other cases.

(4) In this regulation, a “case” means proceedings against any one legally assisted person on one or more counts of a single indictment.

Hardship payments

4I.— (1) The appropriate authority may allow a hardship payment to a legal representative in the circumstances set out in paragraph (2), subject to the other provisions of this regulation.

(2) Those circumstances are:

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

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

(c) the legal representative is not, at the date of the application, entitled to any payment under regulation 4C (interim payments in cases awaiting determination), 4F (staged payments) or 4G (interim payments);

(d) the legal representative is unlikely to receive final payment in respect of the proceedings, as determined under regulation 6 or regulation 9, within the three months following the application for the hardship payment, and

(e) the legal representative satisfies the appropriate authority that, by reason of the circumstance in paragraph (d), he is likely to suffer financial hardship.

(3) Every application for a hardship payment shall be accompanied by such information and documents as the appropriate authority may require as evidence of

(a) the work done by the legal representative in relation to the proceedings up to the date of the application, and

(b) the likelihood of financial hardship.

(4) The amount of any hardship payment shall be in the discretion of the appropriate authority, but shall not exceed such sum as would be reasonable remuneration for the work done by the legal representative in relation to the proceedings up to the date of the application.

(5) No hardship payment shall be made if it appears to the appropriate authority that the sum which would be reasonable remuneration for the legal representative, or the sum required to relieve his financial hardship, is less than £5,000 (excluding any value added tax).

(6) Any hardship payment shall be set off against the remuneration finally payable to the legal representative under regulation 6 or regulation 9.

(7) The question of whether proceedings are related to each other for the purposes of this regulation shall be determined in accordance with regulation 4C(7).

Computation of final claim

4J.— (1) At the conclusion of a case in which one or more payments have been made to a legal representative under regulation 4F, 4G, 4H or 4I, he shall submit a claim under regulation 5 or regulation 8 for the determination of his 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 a legal representative under regulation 6 or regulation 9, the appropriate authority shall deduct the amount of any advance payment made under regulation 4F, 4G, 4H or 4I in respect of the same case from the amount that would otherwise be payable; and if the amount of the advance payment is greater than the amount that would otherwise be payable, the appropriate authority shall be entitled to recover the amount of the difference, either by way of repayment by the advocate or by way of deduction from any other amount that may be due to him.”.

8.  Regulation 6 shall be amended as follows: —

(a) at the beginning of paragraph (2A) there shall be inserted the words “Subject to paragraph (2C),”;

(b) the following paragraph shall be inserted after paragraph (2B): —

“(2C) In any proceedings in the Crown Court: —

(a) in respect of the classes of work specified in paragraph 6(2) of Schedule 3 (whether or not the proceedings are ones to which that Schedule applies), the appropriate authority shall proceed in accordance with the provisions of regulation 9 as if the fee-earner who did the work had been a barrister;

(b) in respect of all other classes of work, the provisions of this regulation (excluding paragraph (2C)(a)) shall apply.”;

(c) in paragraph (3), after “(2B)” there shall be inserted “, (2C)”;

(d) in paragraph (6), after “Schedule 1” there shall be inserted “or a graduated or fixed fee is payable under Schedule 3”, and after “those Parts” there shall be inserted “or that Schedule”.

9.  Regulation 7A shall be amended by the addition of the following paragraph after paragraph (5): —

“(6) In this regulation, except in the phrase “solicitor’s fees”: —

(a) references to a solicitor shall be construed as extending to any authorised litigator as defined by section 119(1) of the Courts and Legal Services Act l990(3);

(b) references to counsel shall be construed as extending to any authorised advocate as defined by section 119(1) of the Courts and Legal Services Act 1990.”.

10.  Regulation 9 shall be amended as follows: —

(a) the following paragraphs shall be substituted for paragraphs (2) and (3): —

“(2) In any proceedings specified in paragraph 2 or 3 of Schedule 3, the appropriate authority shall allow a graduated or fixed fee calculated in accordance with that Schedule in respect of all such work allowed by it as falls into the classes specified in paragraph 6(2) of that Schedule.

(2A) Where in any proceedings specified in paragraph 2 of Schedule 3, the trial judge makes adverse observations concerning the advocate’s conduct of the case, the appropriate authority may reduce any fee which would otherwise be payable in accordance with that Schedule by such proportion as it shall see fit, having first given the advocate the opportunity to make representations about the extent to which the fee should be reduced.

(3) Where it appears to the appropriate authority that the fixed fee allowed by Schedule 3 in respect of any proceedings specified in paragraph 3 of that Schedule would be inappropriate taking into account all the relevant circumstances of the case, it may instead allow fees in accordance with paragraphs (4) and (5) of this regulation.”;

(b) in paragraphs (4) and (5), for “standard fee” there shall be substituted “graduated or fixed fee”.

11.  Regulation 14 shall be amended as follows: —

(a) in paragraph (1)(a), for the words “under regulation 9(2)” there shall be substituted “or graduated or fixed fees allowed under Schedule 3”, and the final “or” shall be omitted;

(b) in paragraph (1)(b), for “counsel” there shall be substituted “an authorised advocate in proceedings in the Crown Court”, and for the words from “to allow” to the end there shall be substituted “that Schedule 3 does or does not apply to those proceedings or with the calculation of the remuneration payable under that Schedule, or”;

(c) after paragraph (1)(b) there shall be inserted the following: —

“(c) an authorised advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow a special preparation fee under paragraph 17 of Schedule 3, or with the number of hours allowed in the calculation of the special preparation fee,”.

12.  Part I of Schedule 1 shall be amended as follows: —

(a) in paragraphs 1(1)(a) and (b) and 1A, for each occurrence of the words “Attendance at court where counsel assigned” there shall be substituted “Attendance at court where more than one legal representative assigned”;

(b) in paragraph 1(1)(b), after “Advocacy” there shall be inserted “(other than in the Crown Court)”.

13.  Part II of Schedule 1 shall be amended as follows: —

(a) paragraph 4(2)(b) shall be omitted;

(b) in paragraph 4(2)(c), for “counsel” there shall be substituted “more than one legal representative”;

(c) in the Table immediately following paragraph 4(3), the entries relating to “advocacy in respect of bail applications” shall be omitted, and for “counsel” there shall be substituted “more than one legal representative”;

(d) in paragraph 4(7), the words from “and, where a fee-earner” to the end of the sub-paragraph shall be omitted;

(e) paragraph 4(8)(b) shall be omitted.

14.  Part I of Schedule 2 shall be omitted.

15.  Part II of Schedule 2 shall be amended as follows: —

(a) the following shall be substituted for paragraph 5: —

“5.   Paragraph 24 of Schedule 3 shall apply where counsel’s fees are determined in accordance with this Part of this Schedule as it applies where a graduated or fixed fee is allowed in accordance with Schedule 3.”;

(b) in Table 1 (following paragraph 5), in the second entry in the right-hand column, for “£98” there shall be substituted “£110”.

16.  After Schedule 2 there shall be added the new Schedule 3 set out in the Schedule to these Regulations.

Mackay of Clashfern, C.

Dated 11th October 1996

We consent

Patrick McLoughlin

Roger Knapman

Two of the Lords Commissioners of Her Majesty’s Treasury

Dated 15th October 1996