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The Criminal Defence Service (Funding) (Amendment) Order 2012

S.I. 2012/750 · Made 7 March 2012

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Legal Services Commission, England And Wales

Made 7th March 2012

Laid before Parliament 9th March 2012

Coming into force 1st April 2012

The Lord Chancellor makes this Order in exercise of the powers conferred by sections 14(3) and 25(8A) of the Access to Justice Act 1999f1.

The Lord Chancellor has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act and has had regard to the matters specified in section 25(3) of that Act.

Annotations to the whole text

Footnotes

f1

1999 c.22. The reference in section 6 to the Lord Chancellor was changed to the Secretary of State by S.I.2003/1887 and changed back to the Lord Chancellor by S.I. 2005/3429. Section 25(8A) was inserted by section 153 of the Coroners and Justice Act 2009 (c.25).

Contents

  1. 1Citation, commencement, application and interpretation
  2. 2Amendments to the 2007 Order
  3. 3Amendments to the 2007 Order
  4. 4Amendments to the 2007 Order
  5. 5Amendments to the 2007 Order
  6. 6Amendments to the 2007 Order
  7. 7Amendments to the 2007 Order
  8. 8Amendments to the 2007 Order
  9. 9Amendments to the 2007 Order
  10. 10Amendments to the 2007 Order
  11. 11Amendments to the 2007 Order
  12. 12Amendments to the 2007 Order
  13. 13Amendments to the 2007 Order
  14. 14Amendments to the 2007 Order
  15. 15Amendments to the 2007 Order
  16. 16Amendments to the 2007 Order
  17. Signature
  18. Explanatory note

1Citation, commencement, application and interpretation

(1)

This Order may be cited as the Criminal Defence Service (Funding) (Amendment) Order 2012 and comes into force on 1st April 2012.

(2)

In this Order—

(a)

“the 2007 Order” means the Criminal Defence Service (Funding) Order 2007f1.

(b)

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.

(3)

This Order applies to proceedings in which a representation order is granted on or after 1st April 2012.

2Amendments to the 2007 Order

The 2007 Order is amended as follows.

3Amendments to the 2007 Order

In article 3—

(a)

in paragraph (2), for “12 and 12A and 15A” substitute “6(2), 12, 12A, 14(1) and 15A”; and

(b)

in paragraph (3), for “6, 14 to 24” substitute “6(1) and (3) to (8), 14(2) to (8), 15 to 24”.

4Amendments to the 2007 Order

In article 6(2) and article 14(1), after “Crown Court” insert “or in proceedings in a magistrates’ court which are subsequently committed to the Crown Court”.

5Amendments to the 2007 Order

In paragraph 1(1) of Schedule 1, in the definition of “standard appearance”—

(a)

after sub-paragraphs (f) and (g) delete “or”;

(b)

in sub-paragraph (h), for “or paragraph 12(1)” substitute “, paragraph 12(1) or paragraph 29”; and

(c)

after sub-paragraph (h) insert—

“(i)

a preliminary hearing; or

(j)

a hearing, whether contested or not, relating to breach of bail, failure to surrender to bail or execution of a bench warrant,”.

6Amendments to the 2007 Order

For paragraphs 1(2) and (2A) of Schedule 1 substitute—

“(2)

For the purposes of this Schedule, the number of pages of prosecution evidence served on the court shall be determined in accordance with paragraphs (2A) to (2C).

(2A)

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.

(2B)

Subject to paragraph (2C), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(2C)

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.”.

7Amendments to the 2007 Order

In paragraph 2 of Schedule 1, omit the sub-paragraph (5) immediately following sub-paragraph (5A).

8Amendments to the 2007 Order

In paragraph 14 of Schedule 1, for sub-paragraph (1)(c) substitute—

“(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.”.

9Amendments to the 2007 Order

In the table following paragraph 19 of Schedule 1—

(a)

omit the entry for “Cracked Trial or Guilty plea (at the election of the defendant)” in the table substituted by article 30 and Part 4 of Schedule 3 to the Criminal Defence (Funding) (Amendment) Order 2011; and

(b)

at the end of the table insert—

(i)

in the first column “Hearing for mitigation of sentence”;

(ii)

in the second column “29”;

(iii)

in the third column “260 per day”;

(iv)

in the fourth column “173 per day”; and

(v)

in the fifth column “108 per day”.

10Amendments to the 2007 Order

In the table following paragraph 25 of Schedule 1, as substituted by article 30 of and Part 5 of Schedule 3 to the Criminal Defence (Funding) (Amendment) Order 2011, in row G of the section headed “Junior Acting Alone” for—

(a)

“266” substitute “225”;

(b)

“285” substitute “241”.

11Amendments to the 2007 Order

In paragraph 29(1) of Schedule 1, for “payable under paragraph 12” substitute “specified in the Table following paragraph 19”.

12Amendments to the 2007 Order

For paragraphs 1(2) and (2A) of Schedule 2 substitute—

“(2)

For the purposes of this Schedule, the number of pages of prosecution evidence served on the court shall be determined in accordance with paragraphs (2A) to (2C).

(2A)

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.

(2B)

Subject to paragraph (2C), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(2C)

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.”.

13Amendments to the 2007 Order

In the table following paragraph 10 of Schedule 2,

(a)

in the entry for “Transfer after trial and before sentencing hearing (original litigator)”—

(i)

for the words in the first column substitute “Transfer after trial or guilty plea and before sentencing hearing (original litigator)”; and

(ii)

in the third column, for “Trial” substitute “Trial, Cracked trial or Guilty plea as appropriate”;

(b)

in the entry for “Transfer after trial and before sentencing hearing (new litigator)”, for the words in the first column substitute “Transfer after trial or guilty plea and before sentencing hearing (new litigator)”;

(c)

in the entry for “Transfer after retrial and before sentencing hearing (original litigator)”—

(i)

for the words in the first column substitute “Transfer after retrial or cracked retrial and before sentencing hearing (original litigator)”; and

(ii)

in the third column, for “Trial” substitute “Trial or cracked trial as appropriate”; and

(d)

in the entry for “Transfer after retrial and before sentencing hearing (new litigator)”, for the words in the first column substitute “Transfer after retrial or cracked retrial and before sentencing hearing (new litigator)”.

14Amendments to the 2007 Order

In paragraph 15 of Schedule 2, for sub-paragraph (1)(a) substitute—

“(a)

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 does not consider it appropriate to include the exhibit in the pages of prosecution evidence;”.

15Amendments to the 2007 Order

In Schedule 5, after paragraph 1(2), insert—

“(3)

The reference to “Category 1A” cases is a reference to the following proceedings—

(a)

either way guilty pleas;

(b)

indictable only cases heard in the Youth Court;

(c)

proceedings (other than committal proceedings) relating to either way offences which are discontinued or withdrawn or where the prosecution offer no evidence; and

(d)

proceedings (other than committal proceedings) relating to either way offences which result in a bind over.

(4)

The reference to “Category 1B” cases is a reference to the following proceedings—

(a)

summary only guilty pleas;

(b)

uncontested proceedings arising out of a breach of an order of a magistrates’ courts (including proceedings in a magistrates’ court relating to a breach of a Crown Court community rehabilitation order, community punishment order or suspended sentence);

(c)

proceedings (other than committal proceedings) relating to summary offences which are discontinued or withdrawn or where the prosecution offer no evidence;

(d)

proceedings (other than committal proceedings) relating to summary offences which result in a bind over;

(e)

proceedings arising out of a deferment of sentence (including any subsequent sentence hearing) under section 1 of the Powers of Criminal Courts (Sentencing) Act 2000f1;

(f)

proceedings prescribed under Regulation 3(2) of the Criminal Defence Service (General) (No.2) Regulations 2001f2, except where the case was listed and fully prepared for a contested hearing to decide whether an order should be made; and

(g)

proceedings relating to either way offences which must be tried in a magistrates’ court in accordance with section 22 of the Magistrates’ Courts Act 1980f3.

(5)

The reference to “Category 2” cases is a reference to—

(a)

contested trials;

(b)

proceedings which were listed and fully prepared for trial in a magistrates’ court but are disposed of by a guilty plea on the day of trial before the opening of the prosecution case;

(c)

proceedings which were listed and fully prepared for trial in a magistrates’ court but are discontinued or withdrawn or where the prosecution offers no evidence or which result in a bind over on the day of trial before the opening of the prosecution case;

(d)

contested proceedings relating to a breach of an order of a magistrates’ court (including proceedings relating to a breach of a Crown Court community rehabilitation order, community punishment order or suspended sentence);

(e)

proceedings where mixed pleas are entered; and

(f)

proceedings prescribed under Regulation 3(2) of the Criminal Defence Service (General) (No.2) Regulations 2001 where the case was listed and fully prepared for a contested hearing to decide whether an order should be made.

(6)

The reference to “Category 3” cases is a reference to committal proceedings which are discontinued or withdrawn.”.

16Amendments to the 2007 Order

In the Higher and Lower Standard Fees table in Schedule 5—

(a)

for “Category 1 (either way)”, in both places where it appears, substitute “Category 1A”; and

(b)

for “Category 1 (summary only)”, in both places where it appear, substitute “Category 1B”.

Signature

Signed by authority of the Lord Chancellor

J Djanogly

Parliamentary Under Secretary of State

Ministry of Justice

7th March 2012

Explanatory note

(This note is not part of the Order)

This Order amends the Criminal Defence Service (Funding) Order 2007. It clarifies the fact that disbursements incurred by litigators in a magistrates’ court in a case subsequently committed or sent to the Crown Court are payable in accordance with the terms of the Order. It includes a preliminary hearing and a hearing relating to breach of bail, failure to surrender to bail or execution of a bench warrant within the definition of standard appearance.

The Order clarifies the proportion of the graduated fee that is payable to a litigator in retrials and on transfer to or from another litigator in certain circumstances. It also sets out in detail the cases included in the various categories referred to in the Higher and Lower Fees Table in Schedule 5 (Magistrates’ Courts Rates).

The Order provides that evidence served by the prosecution in electronic form forms part of the pages of prosecution evidence except as specified in the Order.

The Order provides for the payment of a fixed fee to an advocate following the grant of representation after conviction for the purposes of mitigation only.

The Order corrects minor errors in paragraph 2 of Schedule 1 and the table following paragraph 25 of Schedule 1.