Costs with a representation order
3.16In the magistrates’ courts the fees payable, as set out below, also apply to prescribed civil proceedings under the Criminal Legal Aid (General) Regulations 2013
1SI No 9. reg 9 (see codes CP20–24 and SCC B10.35). For Crown Court fees in prescribed proceedings reference should be made to chapter 10.
3.17The calculation of fees includes magistrates court work and work advising on appeal and related bail proceedings at any level of court so that, for instance, time spent handling bail appeals to the Crown Court are included within the core costs of the a case (SCC B10.35 and 10.72). It also includes any incidental and ancillary work (SCC B10.96).
3.18No claim may be made for the time involved in cases sent to the Crown Court for trial, unless part of the case remains in the magistrates’ court or a case is remitted by the Crown Court (SCC B10.35 and 10.75).
Claims
3.19Payment for claims made for each case for which a representation order exists depends on the area in which the solicitor’s office named in the representation order is situated and the court issuing the order (SCC B10.78). Designated area fees (SCC A1.13) apply if the office or the court is situated in the ‘designated areas’, which include the criminal justice areas of:
•Greater Manchester;
•London;
•Merseyside;
•West Midlands;
as well as the local or unitary authority areas of:
•Brighton and Hove;
•Bristol;
•Cardiff;
•Derby and Erewash;
•Kingston-upon-Hull;
•Leeds and Bradford;
•Leicester;
•Nottingham;
•Portsmouth and Gosport;
•Newcastle and Sunderland (including Gateshead, North Tyneside, Blythe Valley and South Tyneside);
•Sheffield; and
•Southampton.
3.20Guidance on completing a claim on Form CRM6 is at appendix C. References in the guidance, at the date of publication, are at places substantially out of date.
Claim codes
3.21
Code | Criminal proceedings |
PROE | Representation order – lower standard fee |
PROF | Representation order – higher standard fee |
PROG | Representation order – non-standard fee |
PROJ | Second claim for deferred sentence |
PROK | Designated area fee – representation order – lower standard fee |
PROL | Designated area fee – representation order – higher standard fee |
PROM | Designated area fee – representation order – non-standard fee |
PROV | Fee for breach of Part 1 injunctions under Anti-social Behaviour, Crime and Policing Act 2014 |
Outcome codes
3.22
Code | Criminal proceedings |
CP01 | Arrest warrant issued/adjourned indefinitely |
CP02 | Change of solicitor |
CP03 | Representation order withdrawn |
CP04 | Trial: acquitted |
CP05 | Trial: mixed verdicts |
CP06 | Trial: convicted |
CP07 | Discontinued (before any pleas entered) |
CP08 | Discontinued (after pleas entered) |
CO09 | Guilty plea to all charges put – not listed for trial |
CP10 | Guilty plea to all charges put after case listed for trial |
CP11 | Guilty plea to substitute charges put – after case listed for trial |
CP12 | Mix of guilty plea(s) and discontinuance – not listed for trial |
CP13 | Mix of guilty plea(s) and discontinuance – listed for trial |
CP14 | Committal: election [now redundant] |
CP15 | Committal/transfer: direction |
CP16 | Committal: discharged |
CP17 | Extradition |
CP18 | Case remitted from Crown to magistrates’ court for sentencing |
CP19 | Deferred sentence |
CP20 | Granted anti-social behaviour order/sexual offences order/other order |
CP21 | Part-granted anti-social behaviour order/sexual offences order/other order |
CP22 | Refused anti-social behaviour order/sexual offences order/other order |
CP23 | Varied anti-social behaviour order/sexual offences order/other order |
CP24 | Discharged anti-social behaviour order/sexual offences order/other order |
CP25 | [Redundant] |
CP26 | [Redundant] |
Notes1. Explanations for these codes appear in appendix C.2. In the magistrates’ court the normal rules apply to proceedings for contempt either because they are part of criminal proceedings or because they are prescribed proceedings. For contempt in the face of the court, the court itself may unusually grant legal aid without any means test (CBAM 6.14).
Payment
3.23The number of cases must first be identified and any excluded case dealt with at hourly rates on Form CRM7.
Excluded cases
3.24In all these cases, use Form CRM7 and claim the value of the full hourly rates. Cases fall outside standard fees:
•if any part of a claim is enhanced (SCC B10.73);
•if an advocate is assigned (SCC B10.74 and 10.77); the rates payable direct to assigned counsel appear at appendix P;
•if the proceedings are extradition proceedings;
•if the representation order is withdrawn before the case can be classified for standard fees.
Form CRM7 is also used when the fees exceed the higher fee limit. The codes to describe on form CRM7 the work undertaken appear at appendix C.
Non-excluded cases
3.25All other cases must be categorised. For each case, the core costs of the case must be calculated and the figure compared with the fee limit in the relevant category. If the value does not exceed the lower fee limit (LFL) the lower standard fee (LSF) is payable. If the value exceeds the LFL, but not the higher fee limit (HFL), the higher standard fee (HSF) is payable. If the value exceeds the HFL a full claim may be submitted on Form CRM7 (SCC B10.89). No claim can ever be made for the amount of the fee limit.
3.26If a second claim falls to be made for a case then (except for the conclusion of deferred sentence proceedings) credit must be given for the value of the claim already made (SCC B10.58).
3.27In order to calculate payment the following must first be determined:
1)How many cases?
2)What is the correct category of the case?
3)What are the core costs of each case?
1. How many cases?
3.28(a)The number of defendants is irrelevant. There can only be one claim for all the defendants for whom you act in a single claim though this increases the core costs (SCC B10.59 and 10.63).
Figure 3.1 Costs with a representation order – summary
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Notes
[1] Use appropriate fee table depending on location of solicitor and court.
[2] Travel and waiting cannot be claimed if the solicitor or court is in a designated area.
(b)The number of representation orders is irrelevant.
(c)There is one case (SCC A1.13, B10.68 and 10.97) if:
(i)the charges were preferred at the same time;
(ii)the charges are founded on the same facts (warrants/re-arrest/alternative charges); or
(iii)the charges are, or form part of, a series, ie where there is a sufficient nexus of fact or law. The indictment and joinder rules should be applied. Where SCC B10.60 refers to a single claim for all cases joined, this means cases to which the joinder rules would apply and not cases that are merely being joined for sentence.
(d)Cases do not form part of a series merely because they all involve dishonesty and/or all conclude on the same day (CRIMLA 40). Escape from lawful custody may be a separate case (CRIMLA 57).
(e)Cases that are joined for trial are likely to be a series of offences; but the fact that cases are otherwise joined for sentence does not make them part of a series. Cases that would be heard on separate indictments at the Crown Court are more likely not to form part of a series (CRIMLA 50). Where there are a number of allegations of driving disqualified it is likely to be one case if they come together but every situation turns on its own facts (CRIMLA 63).
(f)Bail Act offences, breach proceedings, and proceedings for failure to take part in a drug assessment under Drugs Act 2005 s12 cannot be a separate case if they are at any point heard at the same time as substantive proceedings (SCC B10.69–10.70). The existence of such matters may affect the category, which must also be identified. In this context breach means breach of a sentence of the court. If the allegation amounts to a criminal offence, such as breach of a criminal behaviour order, the normal rules apply.
(g)Stand-alone Bail Act, breach proceedings or proceedings for failing to take part in a drugs assessment will represent a separate case.
2. What is the correct category of the case?
2SCC B10.91.3.29
Category 1B Summary only offences (save where shown) | Category 1A Either way offences | Category 2 Either way and summary only |
1.1 Guilty pleas | 1.1.1 Guilty pleas including guilty pleas in proceedings for low-value shoplifting as defined in section 22A(3) of the Magistrates’ Court Act 1980 (low-value shoplifting) | 2.1 Contested trials |
1.2 Uncontested proceedings arising out of a breach of an order of a magistrates’ court (including proceedings in a magistrates’ court relating to a breach of a Crown Court community order or suspended sentence) | 1.2.1 Proceedings which are discontinued or withdrawn or where the prosecution offer no evidence | 2.2 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 |
1.3 Proceedings which are discontinued or withdrawn or where the prosecution offers no evidence | 1.3.1 Indictable only cases heard in the Youth Court | 2.3 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 |
1.4 Proceedings relating to summary offences which result in a bind over | | 2.4 Contested proceedings relating to a breach of an order of a magistrates’ court (including proceedings relating to a breach of a Crown Court community order or suspended sentence) |
1.5 Proceedings arising out of a deferment of sentence (including any subsequent sentence hearing) under section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 | | 2.5 Proceedings where mixed pleas are entered |
1.6 Proceedings prescribed under reg 9 of the Criminal Legal Aid (General) Regulations 2013, except where the case was listed and fully prepared for a contested hearing to decide whether an order should be made | | 2.6 Proceedings prescribed under reg 9 of the Criminal Legal Aid (General) Regulations 2013, where the case was listed and fully prepared for a contested hearing to decide whether an order should be made |
1.7 Proceedings relating to either way offences which must be tried in a magistrates’ court in accordance with section 22 of the Magistrates’ Courts Act 1980 | | |
Notes on categories
1.A case which is committed for sentence is in category 1A. Newton hearings and hearings to show special reasons to avoid disqualifica-tion or endorsement are all guilty pleas and so in category 1A or 1B in the magistrates’ court (CRIMLA 46 and 48).
2.A case is listed for trial when a not guilty plea is entered and the case is adjourned (CRIMLA 41).
3.Whether a case is fully prepared for trial will depend on the individual circumstances of the case. Regard will be had to the -existence of a proof and evidence of consideration of issues relating to disclosure and relevant witnesses (CRIMLA 41).
4.Discontinuance should only be claimed in category 1A or 1B if a better claim cannot properly be made in category 2. It is not necessary that notification be received on the day of trial if the case was fully prepared (CRIMLA 41).
5.Two claims are made when a sentence is deferred; the second is always in category 1B (SCC B10.65). There are as many cases at the end of the deferred sentence as there were at the beginning (CRIMLA 70).
6.A mixed plea can be claimed whether or not there is any preparation.
7.Either way offences in the Youth Court which, if not grave crimes, can only be tried summarily should be claimed in category 1B.
Special rules on categories
1.If a case would have been in category 2 but a warrant is issued for the defendant, that defendant’s categorisation is changed to cate-gory 1A or 1B as appropriate (SCC B10.95). This may be reversed on the arrest of the client with a supplementary bill (SCC B10.66, although for the process involved see CBAM 9.5) giving credit for what has already been paid.
2.If a case would have been in category 2 but there is a change of firm assigned, the former firm must claim in category 1A or 1B. If a solicitor merely moves from one firm to another, or the change is caused by matters such as a merger or because the old firm has lost its contract, only one claim, in the appropriate category, may be made (SCC B10.93–10.94).
3.If part of a claim is in category 1A or 1B and part in category 2 (eg two defendants tried but one absconds), the solicitor may choose whichever category produces a larger fee (SCC B10.92).
3.30Indictable only and either way proceedings that are sent: If a case is sent to the Crown Court no claim may be made in the magistrates’ court. The work will be claimed as part of the Crown Court bill (SCC B10.35 and 10.75).
3.31This will not apply to any part of the proceedings that are not sent, for which a claim may be made in the appropriate category. Nor does it apply to proceedings that are remitted to the magistrates’ court under Crime and Disorder Act 1998 Sch 3 including ancillary bail applications, such as where a youth is remitted for sentence or the indictable only matter is withdrawn and the defendant is able to ask for summary trial on an either way matter.
3. What are the core costs of each case?
3.32Reference should be made to chapter 1. The core costs include the value of the work actually and reasonably done by way of (SCC B10.80):
•routine letters and telephone calls;
•advocacy;
•attending assigned advocate at court;
•preparation and attendances, including all post-charge work up to 10 days before first hearing, if CRM forms are submitted within five days, and a representation order is granted to the firm making the claim (SCC B10.39). This can include a maximum of 30 minutes to assist in ten completion of legal aid application forms (SCC B10.38);
•work done by an agent for the fee earner or by unassigned counsel.
3.33Unassigned counsel’s preparation and advocacy: Unassigned counsel are paid the fee agreed with the solicitor (SCC B10.45–10.47 and 10.49) but the fee payable to the solicitor cannot increase because unassigned counsel has been instructed (the maximum fee principle) (SCC B10.48).
3.34At each stage the claim should include the work undertaken by agents. The figure that is calculated as part of core costs is the hourly rate appropriate for the agent (SCC A5.5).
3.35The value of the time involved in a bail appeal to the Crown Court during magistrates’ court proceedings forms part of the core costs as does the value of time spent on advising on appeal. Advocacy includes advocacy at bail applications made in the magistrates’ court or an appeal during magistrates’ court proceedings to the Crown Court (SCC B10.35).
The work is valued at the following rates for cases beginning on or after 1 April 2016.
Work | Hourly rate |
Preparation (including taking instructions, interviewing witnesses, ascertaining the prosecution case, advising on plea and mode of trial, preparing and perusing documents, dealing with letters and telephone calls which are not routine, preparing for advocacy, instructing counsel and expert witnesses, conference consultations, views and work done in connection with advice on appeal or case stated) | £45.35 |
Advocacy (including applications for bail and other applications to the court) | £56.89 |
Attendance at court where assigned (including conferences with advocate at court) | £31.03 |
Routine letters written and telephone calls – per item | £3.56 |
Travelling and waiting hourly rate (only claimable where the undesignated area fees apply) | £24.00 |
These rates are exclusive of VAT.
Standard fee tables
3.36The standard fee tables for cases beginning on or after 1 April 2016 are set out below.
Designated areas
| LSF | LFL | HSF | HFL |
Category 1A | £248.71 | £272.34 | £471.81 | £471.85 |
Category 1B | £202.20 | £272.34 | £435.64 | £471.85 |
Category 2 | £345.34 | £467.84 | £723.35 | £779.64 |
Undesignated areas
| LSF | LFL | HSF | HFL |
Category 1A | £194.68 | £272.34 | £412.30 | £471.85 |
Category 1B | £158.27 | £272.34 | £380.70 | £471.85 |
Category 2 | £279.45 | £467.84 | £640.94 | £779.64 |
Notes1. All figures are exclusive of VAT.2. A claim is made for a LSF or a HSF or on Form CRM7.3. No claim may be made for a fee limit (LFL or HFL). These limits merely identify which fee is payable.4. Form CRM7 is used if the core costs exceed the value of the higher fee limit in the relevant category. The codes to describe the work undertaken appear at appendix C.5. The table for designated areas applies if the solicitors’ office or the court in which the defendant appears is in such an area (see para 3.20 above).
Additional payments
Travel and waiting
3.37When both court and firm are located outside the ‘designated’ areas, travel and waiting actually and reasonably undertaken are valued at £24.00 per hour exclusive of VAT. If a firm or the court is in a ‘designated’ area no travel and waiting may be claimed, even on a Form CRM7 claim (SCC B10.81, 10.84, 10.86).
3.38Even if no claim may be made for waiting time it must be -recorded (SCC B10.88).
Enhancement
3.39Enhancement is available in the magistrates’ court (SCC B10.100–10.104) and the principles are set out in chapter 1. Few cases of serious or complex fraud will now be dealt with at this level, making 100 per cent the normal uplift.
3.40If any single item in a bill enhances, the whole bill is excluded from standard fees, and this may be advantageous if a heavy loss would otherwise be made. Reasons must always be given for enhancement (SCC B10.73(b)).
Disbursements
3.41Disbursements (SCC B10.84, 10.85) reasonably incurred and reasonable in amount are recoverable including travel costs. The payment of disbursements is considered in chapter 8.
Counsel
3.42In most cases counsel is unassigned and their preparation, attendance and advocacy time counts towards the calculation of the solicitor’s core costs. Their travel time may be claimed by the solicitor in undesignated areas provided that it is no greater than the claim from the solicitor’s office. It is the solicitor’s responsibility to agree and pay a specific fee for each piece of work undertaken which is the amount received by counsel. Thus, unassigned counsel’s fee is always fixed but the solicitor’s fee will vary depending on the core costs and hourly rate payable. The solicitor cannot recover more by using unassigned counsel than had the work been done in-house or by agents (the maximum fee principle). It is important that papers are prepared in such a way as to show that the same time would have been taken had a solicitor been undertaking the advocacy (SCC B10.45–10.54).
Assigned counsel
3CBAM 6.8.13–6.8.20.3.43Counsel may however be assigned under Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013
4SI No 614. reg 16. In that case the LAA is responsible for payment of counsel’s fees which should be submitted (on form CRM8) by the solicitor with their own form CRM7 (standard fees not being available when counsel is assigned).
5SCC B10.77.3.44The fees are prescribed by the Remuneration Regulations 2013 and SCC B10.105–10.108. The fee table appears at appendix P.
3.45Where hourly rates apply they cannot fall below the minimum amount specified. In normal situations the Regulations prescribe a maximum rate, with pro rata allowances for parts of a day. The costs are assessed on the basis of the work reasonably done and the weight of the seriousness, importance and complexity of the case. However, there is no limitation the fee if:
…taking into account all the relevant circumstances …, the exceptional circumstances of the case mean that the rates set out would not provide reasonable remuneration for some or all of the work allowed.
This exception is often deemed to apply by comparing the case with the generality of cases falling in the same category.
Attendance upon assigned counsel
3.46When counsel is assigned, it may be reasonable to attend upon them both in conference and at court. The attendance must be reasonable and this is more likely to be the case when the case is serious or client has a disability, is young, or has limited English. The solicitor may also be paid for preparing instructions to counsel.
6CBAM 6.8.34–6.8.36.