Anthony Edwards, TV Edwards, London


Fees for Crown Court advocacy

The Criminal Defence Service (Funding Order) 2007 has come into force for all representation orders granted on or after 30 April 2007.



It has particular significance for any solicitor undertaking advocacy in the Crown Court. This is the only area of work where an increase in remuneration has been allowed, and the rates are such that solicitors will wish actively to consider undertaking Crown Court advocacy.



Case not on indictment

For solicitors without higher court rights of audience, there are slightly higher rates of remuneration for appearances which they are able to undertake. They are set out below:



Figures are now prescribed, as shown, for a hearing listed that does not proceed for the absence of a defendant or for reports or for other good reason. Similarly, there are amounts fixed for bail applications and other mentions.



However, the new order retains an exception clause, allowing for more reasonable rates of remuneration.



If the fixed fee for the main hearing is inappropriate, taking into account all the relevant circumstances of the case, the determining officer at the National Taxing Team may instead allow fees in such amounts as appear to him to be reasonable remuneration for the relevant work. There is now no requirement for exceptional circumstances. The method of calculation is provided for by paragraph 17(5).



It should be noted that preliminary hearings under section 51 of the Crime and Disorder Act 1998 may remain outside the graduated fee scheme. The order is unclear, so solicitors should continue to make their claims on red-cornered forms until the matter is resolved. These claims will seldom be worth less than £100, see R v Davies [2007] 1 Costs LR 116.



Cases on indictment

For solicitors with higher court rights of audience, the changes are more substantial. The order makes clear that a graduated fee is always payable unless there is an individual case contract signed in relation to the case. There has been a significant simplification of the fees payable, and the fees for the work more commonly undertaken by solicitor-advocates has been increased.



There is a significantly increased basic fee - this now includes not only the first two days of trial but also a quantity of other work, including the first three conferences and views; all tapes and videos; plea and case management hearings; and up to four standard appearances. Standard appearances are defined as being plea and case management hearings (PCMHs) (except the first one), pre-trial reviews, adjournments, hearings (that cannot proceed because of the failure of the defendant or a witness to attend or the unavailability of a pre-sentence report or for other good reason, custody time-limit applications, bail applications, and hearings for mention.



Critically, a new payment method is introduced in cases affected by the order. Only one payment will be made by the National Taxing Team for all advocacy. There will be a need to identify the 'instructed advocate', who is the person responsible for accounting for the use of that money if other advocates undertake incidental hearings or the main trial. There appear to be significant advantages in solicitors with higher court rights being appointed as the instructed advocate. This should be done by letter as soon after committal transfer or sending as possible. The money received and owing to other advocates may be paid into client account or, for those solicitors without one, into office account, provided they then account to the relevant advocates within 14 days.



Because the basic fee includes payment for a number of standard appearances, there needs to be a protocol as to how the money should be distributed when different advocates attend. The Bar Council has now published such a protocol, which appears to provide a workable scheme. However, when solicitor-advocates are used as agents, any arrangement is capable of agreement. All casework is divided into a series of 11 classes (A-K). A case is either a trial (to include a guilty plea that goes to a Newton hearing), a cracked trial or a guilty plea.



Payments made depend on whether the advocate is leading counsel, a leading junior, a led junior or junior counsel.



For junior advocates, the tables are shown on the opposite page.



There is a basic fee that covers the first two days of the trial, there is a refresher for every day or part thereof after the first two days, and there is an evidence uplift for every page of prosecution evidence.



The definition of a page includes all witness statements, documentary and pictorial exhibits, and records of interview with the defendant, and any other defendant forming part of a committal or prosecution papers. It does not include any documents provided on CD-Rom or by means of electronic communication. Unused material which is not served as formal evidence does not count for this purpose.



Finally, there is a payment for each prosecution witness who provides evidence in the case.



In relation to guilty pleas, the only variables are the basic fee and cumulative payments for a number of pages of prosecution evidence.



However, if a case cracks, it is necessary to calculate at which stage this takes place. This is calculated by identifying the period from when the court fixes a case for trial, or identifies the warned list into which it is to be placed, to the date on which the trial commences. That period is then divided by three and the fees vary depending on whether the crack is in the first, second or third stage.



If a case does not come into the first warned list, it is always treated as being heard in the third stage. A case is only a guilty plea if the matter is disposed of, whether by acquittal or conviction, at or before the PCMH. Indictable-only matters that are arraigned and plead at the PCMH are cracked trials, see R v Johnson [2006] 5 Costs LR 852.



A series of supplementary fees are then payable. They are set out in the table (bottom right). Particular attention should be paid to paragraph 14 in relation to special preparation. This includes cases where there are more than 10,000 pages of evidence and where evidence is served in an electronic form.



Special provision is made for payment for cases sent to the Crown Court continuing beyond the preliminary hearing (paragraph 18).



If they are discontinued prior to service of the prosecution evidence, the fee is half the guilty plea basic fee. If they are discontinued after that point, then the guilty plea basic fee is payable. If at the PCMH or at a hearing after service of the evidence, no evidence is offered or the case is remitted to the magistrates' court, again the guilty plea is payable. If an application to dismiss is made, then daily and half-daily rates apply, but if the application is successful, the first day is paid as a guilty plea.



There is a 20% uplift for each additional defendant. Indeed, that is a general rule so that if there is more than one case listed concurrently, 20% is added.



Trials that are not subject to an individual case contract but which extend 40 days have individual daily rates prescribed.







TABLES



Appeals to the Crown Court against conviction - para.17(1) - £150 per day



Appeals to the Crown Court against sentence - para.17(1) - £125 per day



Proceedings relating to breach of an order of the Crown Court - para.17(1) - £125 per day



Committal for sentence - 17(1) - £150 per day



Adjourned appeals, committals for sentence and breach hearings - para.17(2) - £100 per day



Bail applications, mentions and other applications in appeals, committals for sentence and breach hearings - para.17(3) - £100 per day



TRIALS

Junior alone

CLASS - BASIC(B) - REFRESHER(D) - EVIDENCE (E) - WITNESS (W)

A - £2,547 - £778 - £1.13 - £5.66

B - £1,509 - £542 - £1.13 - £5.66

C - £1,038 - £472 - £1.13 - £5.66

D - £1,300 - £472 - £1.13 - £5.66

E - £755 - £377 - £1.13 - £5.66

F - £802 - £377 - £1.13 - £5.66

G - £1,415 - £472 - £1.13 - £5.66

H - £943 - £472 - £1.13 - £5.66

I - £1,132 - £472 - £1.13 - £5.66

J - £1,887 - £613 - £1.13 - £5.66

K - £1,887 - £613 - £1.13 - £5.66





CRACKS AND GUILTIES

GUILTY PLEA AND CRACKS IN FIRST THIRD

Junior alone - Basic - Pages 1-1,000 - Pages 1,000-10,000



A - £1,312 - £1.08 - £0.54

B - £802 - £0.94 - £0.47

C - £519 - £0.69 - £0.35

D - £802 - £1.37 - £0.68

E - £472 - £0.41 - £0.20

F - £472 - £0.63 - £0.31

G - £755 - £1.18 - £0.59

H - £566 - £0.63 - £0.32

I - £660 - £0.49 - £0.32

J - £1,132 - £1.37 - £0.68

K - £1,132 - £1.18 - £0.59





FEES WHERE CRACK AFTER FIRST THIRD



Junior alone - BASIC - Pages 1-250 - Pages 251-1,000 - 2nd Third 1,001-10,000 - 3rd Third 1,001-10,000



A - £1,981 - £4.63 - £2.15 - £0.71 - £2.15

B - £1,179 - £4.03 - £1.88 - £0.62 - £1.88

C - £755 - £2.99 - £1.39 - £0.46 - £1.39

D - £1,050 - £5.87 - £2.73 - £0.90 - £2.73

E - £660 - £1.75 - £0.82 - £0.27 - £0.82

F - £660 - £2.70 - £1.25 - £0.42 - £1.25

G - £1,132 - £5.08 - £2.37 - £0.78 - £2.37

H - £802 - £2.71 - £1.26 - £0.42 - £1.26

I - £943 - £2.11 - £0.98 - £0.32 - £0.98

J - £1,698 - £5.87 - £2.73 - £0.90 - £2.73

K - £1,604 - £5.08 - £2.37 - £0.78 - £2.37





Category of work - Paragraph providing for fee - Fee for led junior or junior alone



Standard appearance - 9(2) - £100 per day

Paper plea and case management hearing - 9(3) - £30 per case

Abuse of process hearing - 10(1)(a) - Half day £150, Full day £275

Hearings relating to disclosure - 10(1)(b) and (c) - Half day £150, Full day £275

Hearings relating to the admissability of evidence - 10(1)(d) - Half day £150, Full day £275

Hearings on withdrawal of a plea of guilty - 10(1)(e) - Half day £150, Full day £275

Confiscation hearings - 11 - Half day £150, Full day £275

Deferred sentencing hearing - 12(1)(a) - £200 per day

Sentencing hearing - 12(1)(b) - £125 per day

Ineffective trial payment- 13 - £150 per day

Special preparation - 14 - £45 per hour

Wasted preparation - 15 - £45 per hour

Conferences and views - 16 - £45 per hour

Noting brief - 19 - £125 per day

Second and subsequent days of an application to dismiss - 18(6) - Half day £150, Full day £275