LEGAL SERVICES COMMISSION, ENGLAND AND WALES Citation and commencement 1 This Order may be cited as the Criminal Defence Service (Funding) Order 2001 and shall come into force on 2nd April 2001. Interpretation 2 In this Order: “ the Act ” means the Access to Justice Act 1999; “advocate” means a barrister, or a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society; “appropriate category”, in relation to a Very High Cost Case, means the category to which the case is assigned in accordance with article 14; “appropriate officer” means: in the case of proceedings in the criminal division of the Court of Appeal, the registrar of criminal appeals (“the registrar”); in the case of proceedings in the High Court, a Costs Judge; in the case of proceedings in the Crown Court, an officer appointed by the Lord Chancellor; in respect of advice or assistance as to an appeal from the Crown Court to the Court of Appeal, (except in the case of an appeal under section 9(11) of the Criminal Justice Act 1987 ) where, on the advice of any representative assigned, notice of appeal is given, or application for leave to appeal is made, whether or not such appeal is later abandoned, the registrar; in respect of advice or assistance as to an appeal to the Courts-Martial Appeal Court, the registrar; in respect of advice or assistance as to an appeal from the Court of Appeal to the House of Lords, where the appeal is not lodged with the House of Lords, the registrar; and in any other case, the Commission and, in any case, includes an officer designated by the appropriate officer to act on his behalf in that regard; “ CDS Regulations ” means regulations made under Part I of the Act relating to the Criminal Defence Service; “the Commission” means the Legal Services Commission established under section 1 of the Act; “the Contract” means the General Criminal Contract, published by the Commission in February 2001; “Costs Committee” means a committee appointed under arrangements made by the Commission to deal with, inter alia, applications for appeal against, or review of, assessments of costs; “funded services” means services which are provided directly for a client and funded for that client as part of the Criminal Defence Service under sections 12 to 18 of the Act; “a representation order” means a document granting a right to representation; “a representative” means a solicitor or a barrister; “ VAT ” means Value Added Tax; and “a Very High Cost Case” is a case with regard to which: if the case proceeds to trial, that trial would be likely to last for 25 days or longer; or the defence costs with regard to any one defendant (or group of defendants represented by the same firm of solicitors) are likely to amount to £150,000 or greater (such sum to include the solicitor’s fees and disbursements, counsel’s fees, and VAT) and any question as to whether a case fulfills the criteria in (a) or (b) above shall be decided by an officer appointed by the Lord Chancellor in a case which falls within article 6, and by the Commission in a case which falls within article 9. Funding of services—Lord Chancellor 3 1 Except as provided in paragraph (2), the duty of the Commission under section 14(1) of the Act shall, until 4th April 2005, have effect as a duty of the Lord Chancellor in relation to representation in: a criminal proceedings in the House of Lords; b proceedings in the criminal division of the Court of Appeal; and c proceedings in the Crown Court. 2 Paragraph (1) does not apply to: a any proceedings in the Crown Court which are prescribed under section 12(2)(g) of the Act; b any Very High Cost Case which is the subject of an individual contract for the provision of funded services; or c any proceedings in which representation is provided by a person employed by the Commission for that purpose. 4 Other than where the case is remitted back to the magistrates' court, where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998 , any fees in relation to work carried out in the magistrates' court shall be assessed and paid together with the Crown Court fees for that case. 5 Remuneration in respect of the proceedings mentioned in article 3(1) shall be in accordance with the provisions of Schedules 1 to 4. 6 Where representation is funded by the Lord Chancellor in a Very High Cost Case, remuneration shall be at rates no higher than those set out for the appropriate category and the appropriate level of fee earner in Schedule 5. Funding of services—Legal Services Commission 7 The Commission may only fund services as part of the Criminal Defence Service under section 13(2)(b) or 14(2)(b) of the Act where representation is provided in proceedings referred to in section 12(2)(f) of the Act (proceedings for contempt in the face of a court). 8 Except as provided in article 9, where the Commission funds services as part of the Criminal Defence Service under section 13(2)(a) or 14(2)(a) of the Act, remuneration shall be at rates no higher than those set out in Part E of the Specification to the Contract. 9 Where services are provided in a Very High Cost Case which is the subject of an individual contract for the provision of funded services, remuneration for that case shall be at rates no higher than those set out for the appropriate category. Proceedings for contempt 10 1 Subject to article 11, remuneration in proceedings referred to in section 12(2)(f) of the Act shall be at the rate of £72.75 per day. 2 Where representation in such proceedings is provided by two legal representatives, remuneration shall be at the rate of £46.50 per day for the representative appearing as an advocate, and £26.25 per day for the other representative. 11 1 A representative may, when he claims remuneration for work done in respect of proceedings referred to in section 12(2)(f) of the Act, claim that there are exceptional circumstances which justify remuneration greater than the standard fee specified in article 10. 2 If the appropriate officer decides that there are such exceptional circumstances, he may allow the representative such fee as appears to him to be reasonable (having regard to the standard fee) for such work as appears to him to have been reasonably done. 3 If the appropriate officer decides that there are no such exceptional circumstances, the standard fee shall apply. 4 The fee allowed to a representative (other than an advocate) under this article shall not exceed the rates set out in Schedule 2 as appropriate to the type of work, the court in which the proceedings took place, the grade and the situation of the office of the fee-earner who did the work. 5 In the application of paragraph (4), the rates appropriate to the Crown Court shall apply to proceedings in all courts other than the magistrates' courts. 6 Where a court grants representation to a person for the purposes of proceedings for contempt, it may assign to him, for the purposes of those proceedings, any representative who is within the precincts of the court. 7 Where the fee-earner who did the work was not assigned by the court under sub-paragraph (6), the fee allowed for his work shall not exceed the rate set out in Schedule 2 as appropriate to the lowest grade of fee-earner which the appropriate officer considers would have been competent to do the work. 8 The total of the fees allowed to an advocate under this article in respect of proceedings covered by any one representation order shall not exceed the amounts set out in Schedule 3 as appropriate to a single junior counsel instructed in an appeal to the Crown Court against conviction. 12 The provisions of Schedule 1 shall apply with the necessary modifications to the remuneration payable to any representative under articles 10 and 11. 13 Where a representation order has been made in respect of any proceedings, the representative shall 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 the Commission; 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 CDS Regulations for an authority to incur such fees or expenses has been refused by the Costs Committee. Very High Cost Cases—assignment of cases to categories and solicitors to levels 14 1 The Commission or, as the case may be, the appropriate officer shall assign each case which is a Very High Cost Case to one of the four categories referred to in Schedule 5, according to its complexity, importance and subject matter. 2 The Commission or, as the case may be, the appropriate officer shall assign each solicitor or other fee earner (other than a barrister acting as an advocate) providing funded services in relation to a case which is a Very High Cost Case to one of the three levels referred to in Schedule 5. Irvine of Lairg, C. Dated 8th March 2001