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17.31All representation orders granted for criminal cases in the magistrates’ court and the Crown Court will include the provision of advocacy services. This will include representation at all hearings in the case including bail proceedings in the Crown Court.
17.32Representation orders in both the magistrates’ court and the Crown Court are granted subject to a means test. There is a merits test unless the case is tried in the Crown Court on indictment. For a full discussion of these tests see chapter 12.
17.33Advocacy under a representation order may be carried out either by a solicitor or by counsel, subject to the requirement for higher rights for advocacy in the Crown Court and above.
Magistrates’ court
17.34A representation order for a magistrates’ court case will generally only cover advocacy provided by a solicitor.
1See Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 16. Payment for advocacy services provided by a solicitor will be claimed within the magistrates’ court standard fee regime.
17.35Advocacy is claimed at the hourly rate prescribed in the Remuneration Regulations, in the same way as all other types of work provided under the representation order.
17.36Travelling and waiting time can only be claimed if neither the court nor your office is in a ‘designated area’.. The designated areas
2Specification para 1.2. are:
•Greater Manchester, London, West Midlands and Merseyside Criminal Justice Areas; and
•the local authority areas of:
•Brighton and Hove;
•Bristol;
•Cardiff;
•Derby and Erewash;
•Kingston upon Hull;
•Leeds and Bradford;
•Leicester;
•Nottingham;
•Portsmouth;
•Newcastle-upon-Tyne and Sunderland (including Gateshead, North and South Tyneside);
•Sheffield;
•Southampton.
Note that you are still required to record the waiting time (but not travel), even if you cannot claim for it.
3Specification para 10.87.17.37The total core costs will then be compared against fee limits for the particular category of case and this will determine whether the standard fee or a non-standard fee is payable.
17.38For details of the fee structure under representation orders in the magistrates’ court, see chapter 12.
Counsel in the magistrates’ court
17.39Although the representation order will usually only provide for advocacy by a solicitor,
4See Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 16. this does not mean that counsel cannot be instructed in the magistrates’ court. It simply means that counsel is usually unassigned and cannot claim their costs from the court or the LAA. Therefore you are responsible for agreeing a fee with counsel and paying that fee promptly out of your costs. If you fail to pay within 30 days, counsel can apply to the LAA for payment and that payment will be deducted from your monthly payment.
5Specification paras 10.50, 10.54 and 10.55.17.40Unassigned counsel are treated like solicitor agents. From the point of view of the LAA, their work is treated as your work. Their time should be recorded on your bill as if you had done the work, and counts towards the calculation of the appropriate fee.
6Specification para 10.48. As for solicitors, counsel’s travel and waiting time can only be claimed for cases in ‘undesignated areas’,
7Specification para 10.83.17.41You must provide counsel with the UFN and a copy of the representation order when briefing them.
8Specification para 10.43.Assigned counsel
17.42In more serious cases, you can apply to the court for counsel (or an independent solicitor advocate) to be assigned.
17.43The regulations say that counsel may be assigned in any case where the charge is an indictable offence (that is, an offence capable of being tried on indictment, including either way offences, not just indictable only offences) or where the case is an extradition matter.
9Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 16.17.44Indictable only cases involving adults will be sent directly to the Crown Court, so in practice counsel can be assigned in adult either way cases, youth cases where the charge, whether summary or indictable, has not been sent, and extraditions.
17.45In order to have counsel assigned, you must persuade the court that, because of circumstances which make the case unusually grave or difficult, representation by solicitor and advocate would be desirable.
17.46In extradition proceedings, you can apply for more than one advocate, or for a QC, to be assigned where you can persuade the court that the defendant cannot be adequately represented except by QC or more than one advocate.
10Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 regs 16 and 17.17.47Where counsel is assigned, they are entitled to be paid directly by the LAA at the rates prescribed in the Remuneration Regulations, though you should submit their bill with your own – see chapter 14.
Crown Court
17.48Advocacy in the Crown Court must generally be conducted by counsel or a solicitor with higher rights of audience. You must consult the client about the choice of advocate and the alternatives available
11Standard Crime Contract 2017 Standard Terms para 37.3. and keep a record of the discussion.
12Standard Crime Contract 2017 Standard Terms para 7.5.17.49Crown Court representation orders automatically allow the instruction of a single junior advocate. Even if counsel was not assigned under the order in the magistrates’ court, once the case goes to the Crown Court the order is deemed to include representation by one junior advocate (that is, any advocate other than a QC).
13Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18.17.50In more serious and complex cases, an application may be made to the court to amend the order to allow for the instruction of QC or more than one advocate. The court can order representation by:
•QC alone;
•two advocates:
•QC with junior;
•QC with noting junior;
•two juniors;
•junior and noting junior; or
•where three advocates are justified, any of the above plus an additional junior or noting junior.
14Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18. 17.51In order to persuade the court to make an order for senior or more than one advocate, you must demonstrate that the relevant test is met:
•For QC alone:
15Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18(2). •the case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a QC; and
•either:
•the prosecution has instructed QC or senior Treasury counsel; orthe case for the defence is exceptional compared with the generality of cases involving similar offences.
•For two junior advocates:
16Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18(3). •the case involves substantial novel or complex issues of law or fact which could not be adequately presented by a single advocate; and
•either:
•the prosecution have instructed two or more advocates;the case for the defence is exceptional compared with the generality of cases involving similar offences;the number of prosecution witnesses exceeds 80; orthe number of pages of prosecution evidence exceeds 1,000.
•For QC plus junior or noting junior:
17Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18(4). •the case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a QC assisted by a junior advocate; and
•either:
•the prosecution has instructed QC or senior Treasury counsel and two or more advocates have been instructed by the prosecution; the number of prosecution witnesses exceeds 80; the number of pages of prosecution evidence exceeds 1,000; orthe case for the defence is exceptional compared with the generality of cases involving similar offences.
•For three advocates:
18Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 18(5) and (6). •the case is being prosecuted by the Serious Fraud Office;
•the court considers three advocates are required; and
•the conditions for two juniors or QC plus junior are satisfied (as appropriate).
Only defined judges may make the relevant decisions.
19Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 19.17.52The payment of advocates’ fees in the Crown Court is governed by the Advocates Graduated Fee Scheme. This is a similar regime to the Litigator Graduated Fee Scheme that determines payments to solicitors in Crown Court cases. The rules and fees applicable to the Advocates Graduated Fee Scheme are set out in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013. This scheme applies to all advocates in the Crown Court, whether they are counsel or solicitor advocates.
20As we went to press, the Ministry of Justice was consulting on changes to Advocates Graduated Fee Scheme.17.53Each case will have a trial advocate, who is the advocate responsible for claiming fees on behalf of all advocates instructed in the case.
17.54The scheme provides for a basic fee based on the classification of the offence to which is added uplifts for pages of evidence, length of trial, number of witnesses and additional fees for features such as conferences. There is a higher basic fee for a trial and a lower for a guilty plea case. The basic fee includes payment for attendance at a pre-trial preparation hearing and four other hearings during the case; additional fees can be claimed for other hearings.
17.55The full details are set out in Schedule 1 to the Remuneration Regulations and are subject to review for implementation in April 2017.