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Scope
12.158Work in the appeals and reviews class covers representation in the High Court on an appeal by way of case stated, advice on an application to the Criminal Cases Review Commission, and advice on appeals to the Court of Appeal.
Case stated
12.159Where the client seeks an appeal to the High Court by way of case stated, the appeal is funded by representation order. The original order in the magistrates’ court (or as the case may be, the Crown Court) covers advice on appeal,
1Standard Crime Contract 2017 Specification para 11.3. including the application to the magistrates’ court to state a case.
2Standard Crime Contract 2017 Specification paras 11.44–11.61.12.160Once the case is lodged at the High Court, an application for representation in the appeal should be made to the High Court.
3Standard Crime Contract 2017 Specification para 11.48; the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 SI No 614 reg 7. It is an application for a criminal representation order. There is no means test, and the merits test is deemed to be met.
4Criminal Legal Aid (General) Regulations 2013 reg 21. If the appeal is unsuccessful a recovery of defence costs order can be considered by the court.
5See the Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 SI No 511.12.161Where disbursements are needed, you can make an application to the LAA for prior authority.
6Standard Crime Contract 2017 Specification para 11.57. Counsel may be instructed under the order.
7Standard Crime Contract 2017 Specification para 11.54.Advice and assistance in the appeals class
12.162Advice and assistance may be granted to assist a client with an application to the Criminal Cases Review Commission, or to appeal against conviction and/or sentence.
12.163The representation order in the magistrates’ or Crown Court includes the provision of advice on appeal,
8Standard Crime Contract 2017 Specification para 11.3. up to the point where an appeal is lodged, and therefore where you represented a client in the magistrates’ or Crown Court under legal aid, the advice on appeal should be given under the order. It would not be appropriate to grant advice and assistance for that.
12.164Similarly, where a representation order is available from the Court of Appeal,
9Under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 8. advice and assistance should not be used as an alternative to, or to supplement, the Court of Appeal’s powers to grant a representation order where only counsel has been authorised.
10Standard Crime Contract 2017 Specification para 11.7.12.165Therefore, the primary use of advice and assistance is in cases where the client was not represented, or was represented and seeks a second opinion on the appeal. This would apply whether the client is entitled to go direct to the Court of Appeal or would make an application to the Criminal Cases Review Commission (CCRC).
12.166The general rules on advice and assistance (see the investigations class, above) will apply. The work is means tested
11Standard Crime Contract 2017 Specification para 11.9. and subject to the sufficient benefit test.
12Standard Crime Contract 2017 Specification para 11.8. Costs are limited to £273.75 (£456.25 in the case of a CCRC application) but may be extended on application to the LAA.
13Standard Crime Contract 2017 Specification para 11.42 and Criminal Legal Aid (Remuneration) Regulations 2013 Sch 4.12.167When you are dealing with a CCRC case, the LAA recognises that substantial work may be required, particularly where you are not the solicitor who acted at the trial. This may include obtaining the prosecution and defence files, considering transcripts,
14Standard Crime Contract 2017 Specification para 11.23. commissioning further expert evidence and conducting further investigations. However, you should screen the case at as early a stage as possible, and where there is no reasonable prospect it will meet the CCRC’s criteria, refuse to carry out further work.
15Standard Crime Contract 2017 Specification para 11.22.Representation orders in the Court of Appeal
12.168The Court of Appeal has the power to grant a representation order, but not until leave to appeal has been granted, or until the application to appeal has been submitted.
16The earlier Criminal Defence Service (General) (No 2) Regulations 2001 reg 10(5) was so interpreted in Revenue and Customs Prosecution Office v The Stokoe Partnership [2007] EWHC 1588 (Admin): now the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 8.12.169The court can grant a representation order to an advocate alone,
17Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18. and indeed this is usual practice. Applications for litigators will usually only be granted to undertake some specific step in the proceedings, such as to interview a witness, rather than for the appeal as a whole.
12.170Court of Appeal representation orders are subject to the interests of justice test. There is no means test, but Recovery of Defence Costs Orders may be made.