Download Legal Aid Fees Regulations for Advocates and Litigators in Crown Court Cases and more Schemes and Mind Maps Law in PDF only on Docsity! Page 1 of 117 Crown Court Fee Guidance Version Issue date Last review date Owned by 1.7A September 2018 September 2018 Service Development, Legal Aid Agency. Page 2 of 117 Version History Version Date Reason 1.0 April 2013 First edition of the combined LGFS and AGFS guidance. 1.1 May 2014 Updated version. 1.2 June 2014 Hyperlinks added to appendix headings. 1.3 August 2014 New LAA telephone number added to contact details. 1.4 August 2015 Updated version. 1.5 May 2016 Updated version, including Better Case Management changes. 1.6 March 2017 Updated version. 1.7 February 2018 Updated to show PPE / special preparation threshold changes. 1.7A September 2018 Updated to reinstate the LGFS PPE threshold of 10,000 pages. This version applies to cases with a representation order dated earlier than 1 April 2018. Page 5 of 117 3.28 Allowing fees at less than the prescribed rates 53 3.29 Allowing fees at more than the prescribed fee rates 53 3.30 Evidence Provision Fee 53 Appendices 554 Appendix A: Out of Time Guidance 55 Appendix B: Claiming Guidance 60 Appendix C: Key Contact List 63 Appendix D: Pages of Prosecution Evidence Guidance 65 Appendix E: Example Work Log 74 Appendix F: Alleged Breach of a Court Order Guidance 75 Appendix G: Examples of Claiming for Dismissal Applications 79 Appendix H: Case Type Scenarios 81 Appendix I: Remuneration for Breach Proceedings for Litigators 84 Appendix J: Costs Judge and Divisional Court Decisions 90 Appendix K: Claiming the Evidence Provision Fee 99 Appendix L: LAC1 Form Guidance 100 Appendix M: Evidence Requirements Note 103 Appendix N: Prescribed Proceedings in the Crown Court 104 Appendix: O: New Trial/ Retrials Guidance. 110 Appendix P: List of Offensive Weapons 112 Appendix Q: Confiscation Proceedings 114 Appendix R: Video recorded cross-examination under Section 28, Youth Justice and 122 Criminal Evidence Act 1999 Glossary 123 Page 6 of 117 Overview The Advocates’ Graduated Fee Scheme (AGFS) and the Litigators’ Graduated Fee Scheme (LGFS) are the legal aid fee schemes for Crown Court cases. The fee scheme policy and rates for the AGFS and LGFS are contained in the Criminal Legal Aid (Remuneration) Regulations 2013 as amended (Remuneration Regulations). The purpose of this document is to provide guidance to complement the Remuneration Regulations and information as to how the Legal Aid Agency (LAA) will process claims for payment. It is for the benefit of legal aid lawyers, legal and billing clerks, LAA caseworkers and participants of the wider criminal justice system who have an interest in the schemes. The guidance reflects all Remuneration Regulation amendments in existence at 31 March 2016. Note that Very High Cost Cases (VHCC) are governed by an individual case contract. The contract will specify whether the VHCC or graduated fee is applicable. The guidance is structured to mirror the format of the Remuneration Regulations and is divided into three sections: - Section 1: Guidance on the Remuneration Regulations which applies to both the AGFS and LGFS - Section 2: Guidance on Schedule 1 of the Remuneration Regulations which applies to the AGFS - Section 3: Guidance on Schedule 2 of the Remuneration Regulations which applies to the LGFS. The relevant Remuneration Regulations reference is included on the right-hand side of the page. Paragraphs within the guidance are referenced as follows: for example, Section 1, heading 3, paragraph 1 is referenced as 1.3.1. References to Costs Judge or High Court costs decisions are located within the paragraph. Where no guidance is required, the paragraph will simply refer to the relevant remuneration regulation. Some Costs Judge decisions referenced were made before the Legal Aid Agency became known as such and, therefore, will refer to the Legal Services Commission (LSC). It should be noted that this guidance is not a source of law and, if any conflict is found between the guidance and the regulations, the regulations must take precedence. As the graduated fee schemes (as contained in the regulations) are comprehensive schemes, a determining officer must apply it in accordance with their explicit words (as held in Costs Judge Decision: R – v – Kemp (1999)). In addition to this guidance, the LAA publishes several online calculators, amended with each change to VAT rates or the scheme itself, to assist providers with establishing the correct graduated fee to claim. The calculators can be accessed at: https://www.gov.uk/government/publications/graduated-fee-calculators. Page 7 of 117 1. General Guidance 1.1 Citation and Commencement 1. The AGFS and LGFS are governed by Criminal Legal Aid (Remuneration) Regulations 2013 (No. 435), as amended1. These regulations were made by the powers conferred by section 2(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The regulations are published on www.legislation.gov.uk. 2. Before LASPO, the Criminal Defence Service (Funding) Order 2007 (as amended) governed all AGFS and LGFS claims, and it continues to be used for claims that have a representation order dated before 1 April 2013. Earlier versions of guidance are available for claims with an earlier representation order date: https://www.gov.uk/government/publications/crown-court-fee-guidance. Regulation 1 1.2 Interpretation 1. Regulation 2 of the Remuneration Regulations contains definitions of the terms specific to the fee schemes. For example, definitions of, ‘Appropriate Officer’, ‘Representation Order’, and ‘Very High Cost Case’. For these definitions, refer directly to the Remuneration Regulations. Regulation 2 1.3 Scope 1. Regulation 3 of the Remuneration Regulations states what is in scope. The regulations contain provision for the remuneration of work in: ▪ Magistrates’ courts ▪ Crown Court ▪ High Court, Court of Appeal, and Supreme Court. 2. VHCCs are not in scope. In the High Court case: Lord Chancellor v. Alexander Johnson (Phillips) (2011) emphasised that the former Funding Order did not apply to VHCCs. It was held that Paragraph 10, Schedule 2, of the Criminal Defence Service (Funding) Order 2007 as amended (now paragraph 13(8) of the Remuneration Regulations) does not apply to VHCC panel members and where it refers to VHCCs in 10(8) (now 13(8)) that provision is for non-panel members whose cases become VHCCs. Regulation 3(1) – (7) Regulation 3(8) and Regulation 13(8), Schedule 2 1.4 Claims for fees by advocates – Crown Court 1. For all cases with a representation order dated 5 May 2015 or after, fees for advocacy in Crown Court proceedings are claimed by, and paid to, the Trial Advocate. The Trial Advocate is the advocate who is instructed pursuant to a representation order and who attends the main hearing. ‘Main hearing’ is one of the following: (a) in relation to a case which goes to trial, the trial; (b) in relation to a guilty plea (within the meaning of Schedule 1 of the Remuneration Regulations), the hearing at which pleas are taken or, where there is more than one such hearing, the last such hearing; (c) in relation to a cracked trial (within the meaning of Schedule 1), the hearing at which— (i) the case becomes a cracked trial by meeting the conditions in the definition of a cracked trial, whether or not any pleas were taken at that hearing; or (ii) a formal verdict of not guilty was entered as a result of the prosecution Regulation 4(3) Regulation 2(1) 1 The amendments to the Criminal Legal Aid (Remuneration) Regulations 2013 are listed here by Statutory Instrument year and number: 2013 –2803, 2014-415, 2014-2422, 2015-325, 2015-882, 2015-1369, 2015-2049, 2016-313. Page 10 of 117 1. Regulation 8 applies to advice and assistance and representation in the police station and the magistrates’ court, appeals by way of case stated to the High Court, and the Crown Court pursuant to a Section 16 determination made under Section 16 of the Act. The fees are set out in Schedule 4 of the Remuneration Regulations and the rules which apply are set out in the2010 Standard Contract. Regulation 8 1.9 Payments from other sources 1. Regulation 9 of the Remuneration Regulations states that for legally aided cases no additional payment can be received from another source except where the LAA has refused an application to incur costs for advice from an expert or other person, further evidence, or to obtain transcripts or recordings. Regulation 9 1.10 Cases sent for trial at the Crown Court 1. Where cases start in the magistrates’ court, but end up in the Crown Court, all work for the case is payable under the Crown Court fee schemes. 2. If the case is remitted back to the magistrates’ court, then the work is payable under the magistrates’ court fee scheme. Regulation 10 1.11 Proceedings for contempt 1. Regulation 11 of the Remuneration Regulations states that the Lord Chancellor may only pay for contempt proceedings in accordance to Schedules 1, 2, and 3. Regulation 11 1.12 Notification of Very High Cost Cases 1. Litigators are under a contractual and regulatory obligation to notify the CCU of the LAA if they are representing a defendant on a case that is likely to last 40 days or more at trial. 2. The CCU must be notified using the VHCC Notification Request Form which may be accessed at: https://www.gov.uk/high-cost-cases-crime. 1.12A Fees in Very High Cost Cases 1. Regulation 12A provides for the fees to be paid according to the terms of the VHCC contract using rates set out in Schedule 6 of the Remuneration Regulations. Regulation 12(1) Regulation 12A 1.13 Authorisation of Expenditure 1. Only litigators may apply for Prior Authority to incur certain expenses, such as reports from experts and transcripts as per regulation 13, and may apply to the Prior Authority Team. 2. Both litigators and advocates may apply to the LAA for permission to incur travelling and accommodation costs, which the LAA has labelled ‘Prior Approval’. 3. Before applying for Prior Approval, advocates must consider paragraph 2.29, Non-Local appearances. Applications for Prior Approval must be made by email and include a full explanation for incurring the costs. For example, if it is on the basis of specialised knowledge or experience, a copy of the indictment and details of the relevant expertise must be supplied. 4. Prior Approval requests should be emailed with the subject heading, ‘Crown Court Travel Prior Approval’, to:
[email protected]. Regulation 13(1) Regulations 13(3) Regulation 13(3) and Paragraph 29, Schedule 1 Page 11 of 117 1.14 Interim payment of disbursements 1. Regulation 14 of the Remuneration Regulations contains the criteria for claiming and authorisation of interim payments for litigators’ disbursements. Regulation 14 2. Litigators may claim interim payments for disbursements of £100 or more before submitting the final bill for the case, where prior authority to incur the expenditure has been granted and the expense has already been incurred. Regulation 14(2) 3. Where a litigator has claimed an interim payment for a disbursement for work incurred by an expert, reasonable travel expenses for the expert shall also be claimed. Travel disbursements and VAT can be claimed in addition to the sum granted for prior authority, provided they are accompanied by valid receipts or tickets. Regulation 14(6) 1.15 Interim disbursements and final determination of fees 1. The processing officer will adjust the final payment to the litigator if an interim payment made during the course of the case is more or less than the assessed cost of the disbursement. Regulation 15(2) 1.16 Expert Services 1. The LAA will pay for experts’ fees but will pay no more than is set out in Schedule 5 of the Remuneration Regulations, unless there are exceptional circumstances. Regulation 16(2) 1.17 Determination of litigators’ disbursements 1. Regulation 17(1) makes provision for a litigator to incur reasonable disbursements. Regulation17 (1) 2. Litigators may claim disbursements for reasonable travel and experts’ fees. If the travel disbursements are extensive because of the distance travelled, the processing officer may reduce the disbursement allowed. Regulation 17(1) and (2) 3. Travel time for litigators is included in the graduated and fixed fees. It is important to note that the litigator instructed should be local to the client. Refer to section 3.9 of the Criminal Bills Assessment Manual. Regulation 17(2) 4. As attendance at court is wrapped up in the graduated fee, litigators shall not claim agency fees as a disbursement. Litigators have the option of apportioning their fee to pay for the agent if they wish2. 5. Where a litigator is claiming an unusual disbursement (e.g. a high value disbursement or a disbursement not usually associated with a type of case), then documentary evidence supporting the need for incurring the cost should be submitted. This documentary evidence may take the form of experts’ breakdown of costs for proposed work, advice from the Trial Advocate, instructed advocate etc. and will be similar to the type of supporting evidence usually required under ex post facto. Regulation 17(1) 6. In house photocopying charges for routine copying are not recoverable since these constitute general office overheads3. Litigators may claim as a disbursement an outside agency's charges for bulk photocopying, i.e. in excess of 500 pages (which is a cumulative figure per case), provided the assessor considers such a course of action reasonable, i.e. where the copies are so exceptionally bulky that it would not be reasonable to expect the litigator’s normal office facilities to cope. The photocopying of fewer than 500 pages would Regulation 17(1) 2 Refer to paragraph 3.6 of the Criminal Bills Assessment Manual for guidance on agent’s fees (the same principles apply for Crown Court work). 3 Refer to paragraph 3.1 Criminal Bills Assessment Manual for administration and overheads not included in the graduated fee. Page 12 of 117 not be considered a reasonable disbursement and would be considered part of general office overheads. 7. Routinely informing experts of when both full and interim payments are made would place a significant administrative burden on the LAA and the time taken to process claims may suffer as a result. Therefore, while the LAA is unable to routinely inform experts, they welcome queries at any time and will inform an expert as to whether a particular disbursement has been paid to a litigator. 8. If an expert is claiming travel and accommodation, their expert receipts should be included in the litigator’s claim for payment. Regulation 14(8) Regulation 17(1) 9. If an expert is having difficulties receiving payment from a litigator, they should inform the LAA and The Law Society and take the appropriate course to recover their money under the terms of their contract. 10. When looking at the reasonableness or otherwise of travel disbursements, the LAA will apply the guidance and principles set out in the Criminal Bills Assessment Manual4. Regulation 17(1) 11. Disbursements, including VAT, over £20 should be justified and, so far as possible, be accompanied by valid receipts or tickets, except for receipts for night subsistence and personal incidence disbursements which should be supplied for any amount5. Litigators should keep copies of all receipts with their paper files as they may need to be called upon. Regulation 17(1) 12. Where travel has been authorised, the LAA will use the following guide rates (excluding VAT) when assessing travel and accommodation expense claims: Regulation 17(1) Expense Rate Standard (motor vehicle) Mileage Rate 45p per mile. Public Transport Mileage Rate Cycling Mileage Rate 25p per mile. 20p per mile. Overnight Hotel (including serviced apartments) – London, Birmingham, Manchester, Leeds, Liverpool or Newcastle-Upon-Tyne city centres £85.25 Overnight Hotel – elsewhere £55.25 Night Subsistence £21 Personal Incidental £5 Overnight (other than at a hotel) £25 13. The standard rate of mileage may only be paid where travel has been authorised and the use of a private motor vehicle was necessary (for example, because no public transport was available), or where a considerable saving of time is made (for example, where the litigator would have been required to stay overnight, or leave and return at unreasonable hours, if public transport was used), or the use of a private motor vehicle was otherwise Regulation 17(1) 4 Refer to paragraph 3.9 of the Criminal Bills Assessment Manual for guidance on travel and waiting disbursements. 5 Refer to paragraph 3.9(19) of the Criminal Bills Assessment Manual for guidance on receipts for disbursements. Page 15 of 117 21. Interim Claims will not be considered as a final claim for the purposes of determining if a claim has been submitted on time or not. 22. Providers will continue to be able to claim hardship payments at any time up until the final bill has been submitted. Any hardship payments made will be offset against any interim payments received and vice versa. 23. Claims for interim disbursements will not be affected by the interim payment process and may be claimed separately through the CCD system. 24. There is no right to request a redetermination for an interim payment. 1.18 Interim payments in cases awaiting determination of fees 1. It is the Trial Advocate who may make a claim for an interim payment in cases awaiting determination of fees (for cases with a representation order dated 5 May 2015 or later). Cases with an earlier representation order date must be claimed by the Instructed Advocate. 2. Where a Trial Advocate has submitted a claim for a graduated fee of £4,000 or more (exclusive of VAT) and has not received payment three months after submitting the claim, and six months have elapsed since the conclusion of the proceedings, the advocate may submit a claim for an interim payment. Regulation 18 (1-5) 1.19 Amount of interim payments in cases awaiting determination of fees 1. Regulation 19 of the Remuneration Regulations permits an interim payment in the amount of 40% of the total claim. Regulation 19 1.20 Staged payments in long Crown Court proceedings 1. Regulation 20 of the Remuneration Regulations describes the criteria for allowing an Instructed Advocate to apply for a staged payment during the course of a case, defines ‘preparation’, and describes how to calculate the staged payment. Regulation 20 2. A staged payment may be claimed where the case involves preparation of 100 hours or more, and the period from sending for trial to the conclusion of the Crown Court proceedings is likely to exceed 12 months. Regulation 20(2) 3. Once the Instructed Advocate has performed 100 hours of preparation and it is known that the case will conclude after 12 months, the advocate may submit their claim for a staged payment to the LAA using the CCD billing system. It should be noted that the claim is for case preparation only. Staged Payments continue to be claimed by, and paid to, the Instructed Advocate (rather than the Trial Advocate) for cases with a representation order dated on or after 5 May 2015. Regulation 20(5) 1.21 Hardship payments 1. Regulation 21 of the Remuneration Regulations contains provision for claiming for a hardship payment for advocates and litigators. Regulation 21 2. A representative can apply for a hardship payment where: ▪ the representative has spent at least 6 months on the case ▪ the case is likely to last at least 12 months ▪ the representative is unlikely to receive a final payment within three months of applying for a hardship payment, ▪ the representative can demonstrate that financial hardship will result. Regulation 21(2) Page 16 of 117 3. The regulations do not allow for predicted future costs of the case to be considered. Regulation 21(5) 4. Litigators will need to manually check that their claim meets the requirement of £5,000 or more exclusive of VAT before they submit an online claim. Litigators may use the calculator on the LAA website for this purpose. The calculators can be accessed here: https://www.gov.uk/government/publications/graduated-fee-calculators Regulation 21(6) 5. Litigators and advocates may make a hardship claim through the CCD billing system, with a copy of the Representation Order, the case details (offence type, PPE and number of defendants), and evidence of financial hardship. Regulation 21(3) and (4) 6. The six-month rule applies to the representative and not to the Representation Order. For example, if a litigator has begun representing a client following a transfer of legal aid from a previous litigator, the period of time for the new litigator (for the purposes of calculating six months) commences on the date of transfer of legal aid, not from the original date of grant. Regulation 21(1) 7. Evidence needs to be provided to prove hardship. Evidence should take the form of bank statements and letters from the bank. Regulation 21 (3) and (4) 8. The representative must use the same court reference number to claim the final fee. If there has been a change in court venue and a different court reference number has been assigned, the representative must inform the LAA. The LAA will regularly review hardship payments to ensure duplicate payments have not been made. 9. Any hardship payments made will be offset against any interim payments received and vice versa. 10. An application for hardship payment may be submitted by any advocate working on a case. For cases with a representation order on or after 5 May 2015, hardship payments are made to the Trial Advocate. If the trial has not started and there is no Trial Advocate, payment will be made to the Instructed Advocate. Regulation 4(4) and 5(4) 1.22 Computation of final claim where an interim payment has been made 1. When determining a final claim from a representative to whom an interim payment has been made, the amount already paid should be deducted before any further payment is made. If the amount already paid is greater than the amount payable on determination of the final claim, the representative should be asked to repay the amount in question. If this is not forthcoming, recovery can be made from any other amounts due to be paid to the representative. 2. For litigators, because of the way CCLF is configured, hardship payments can only be paid under certain scenarios. However, the LAA will reconcile the difference when the final fee is claimed. 3. All advocates have a duty to provide the Trial Advocate with the correct details of any interim payment made. Regulation 22(2) 1.23 Payment of fees to advocates—Crown Court 1. For cases with a representation order dated on or after 5 May 2015, advocacy fees are claimed by, and paid to, the Trial Advocate. For cases with an earlier representation order date, the fees are claimed by, and paid to, the Instructed Advocate. Regulation 23 2. Advocates should receive payment for their AGFS claim in the next available LAA Regulation Page 17 of 117 BACS payment run after their claim has been authorised. 23(1) 1.24 Payment of fees to litigators—Crown Court 1. Regulation 24 of the Remuneration Regulations contains provision for the LAA notifying and paying litigators for fees payable, as well as any increase or decrease in fees as a result of an appeal. Regulation 24 2. LGFS payments are made by the LGFS system and will show up on a separate line on the litigator’s monthly statement. Litigators should receive a payment for all LGFS claims in the next available LAA BACS payment run after their claim has been authorised. Regulation 24(1) 1.25 Recovery of Overpayments 1. Regulation 25 of the Remuneration Regulations makes provision for recovering an overpayment from the representative. 2. The LAA can recover overpayments for whatever reason. In the High Court decision of Lord Chancellor v Eddowes, Perry and Osbourne Ltd (2011), it was held that the LSC is entitled to recoupment when there has been an overpayment “for whatever reason” and this must include overpayment through the LSC’s own error. That decision also confirmed that if the LSC does seek recoupment when it has made an error, the solicitor has a right to seek a redetermination and then appeal following receipt of the written reasons. Regulation 25 Regulation 25(1) 1.26 Adverse observations 1. Where the court makes adverse observations of a representative’s conduct, the LAA may reduce the usual fee payable. Prior to reducing the fee, the LAA must allow the representative a chance to make representations as to whether it is reasonable to reduce the fee. Regulation 26 1.27 Wasted costs orders 1. The Determining Officer has the power to deduct wasted costs from a claim according to the Wasted Costs Order. If the officer has disallowed some of the claim which relates to the Wasted Costs Order then they can reduce the fee by the value of work disallowed or the value of the order, whichever is the greater. Regulation 27(1) and (2) 1.28 Redetermination of fees by appropriate officer 1. Regulation 28 of the Remuneration Regulations contains the rules for applying for and assessing a redetermination. It distinguishes the different criteria for a redetermination of claim made by an advocate, a Trial Advocate, and a litigator. Regulation 28 2. Where a representative is dissatisfied with the calculation of the fees, the representative may seek a redetermination. Regulation 28(1) 3. The representative has 21 days, from the date of the LAA decision, to ask the LAA to review the decision. Representatives should submit their request for a redetermination through the CCD online billing system. Regulation 28(3) 4. A redetermination involves the LAA checking the information, including any additional information supplied by the applicant against actual court case file information or prosecution information. Regulation 28(4) and (6). 5. The LAA will then determine whether any amendments need to be made to the payment and amend the payment accordingly. Regulation 28(7) Page 20 of 117 10. Where there is a preparatory hearing but no jury is sworn thereafter because the client pleads guilty, or the case comes to an end for any reason, the case is either a Cracked Trial where a PTPH or FCMH (at which a ‘not guilty’ plea is entered) has taken place or a Guilty Plea where a guilty plea has been entered at or before a PTPH or FCMH. 11. Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the Determining Officer, as Mitting J did in R v Dean Smith, in the light of the relevant principles explained in the judgment. 12. Further, it was held in Lord Chancellor v. Henery (2011) that in deciding whether a trial has begun the question is whether there has been a trial in any meaningful sense; whether the jury has been sworn is only one of the relevant factors to be considered. The judgment provides the following guiding principles: 96. I would summarise the relevant principles as follows: (1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun. (2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by a defendant, or a decision by the prosecution not to continue (R v Maynard, R v Karra). (3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes (Meek and Taylor v Secretary of State for Constitutional Affairs). (4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty (R v Brook, R v Baker and Fowler, R v Sanghera, Lord Chancellor v Ian Henery Solicitors Ltd [the present appeal]). (5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case, and the leading of evidence (R v Dean Smith, R v Bullingham, R v Wembo). (6) If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense. (7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense. (8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the Page 21 of 117 determining officer, as Mitting J did in R v Dean Smith, in the light of the relevant principles explained in this judgment. 13. To expand on Principle 5, the R v Bullingham 2011 judgment states: i. The LSC’s contention that as no jury was sworn, the trial could not have started, is wrong since it is plain from the authorities that the swearing of the jury is not the conclusive factor in deciding under the scheme when the trial begins. ii. Even if a jury is sworn, the trial will not start unless it begins “in a meaningful sense”, that is to say otherwise than for the mere convenience of the jurors or so that the legal representatives will be paid a trial fee rather than a cracked trial fee. iii. If the jury is sworn and the prosecution opens its case only for the defendant to change his plea, a trial, not a cracked trial fee is payable. Where (as here), no jury is sworn, but the judge directs that there will be a voir dire involving substantial argument which may affect the evidence that the prosecution can use in the case, the trial starts when he gives that direction. 14. The fee is based on the total number of trial days, regardless of whether the court sat for ten minutes or four hours on any given particular day at trial. This includes the sentence hearing, if it is part of the last day of the trial (e.g. the same day as the verdict) but not if the sentence hearing is postponed for reports and occurs on another day. In the latter scenario, the sentencing hearing is remunerated as a fixed fee. Retrials 15. If there is no order by the judge that there will be a new trial and the new trial is deemed to be part of the same trial process, then the fee payable is for one trial only. Refer to Costs Judge decision: R. v. Nettleton (Mr Doran) (2012) which held that despite there being a gap of more than one day after the first jury was discharged, this case should be paid as one trial because it was all part of the same trial process and no further preparatory work was required before the case recommenced. Also refer to Costs Judge decision: R. v Cato (2012) which held that the length of the delay does not necessarily mean there has been a retrial. For a retrial to take place the trial must have run its course and an order for retrial must be made. In R. v Forsyth (2010) it was held that in order for a trial to be considered a retrial there must be an order for a new trial or the trial must have run its course without the jury reaching its verdict. 16. In addition, refer to the additional retrials guidance at Appendix O which provides detail on how to claim for cases where, despite the court not making a formal order for a retrial, the circumstances suggest there is trial plus a new trial/retrial. 17. All Trial Advocates must submit a claim for payment for the trial they conduct. When there is a trial followed by a new trial (retrial) and a new advocate has conduct of the new trial, the first Trial Advocate must submit a claim for the trial and the new Trial Advocate must submit a claim for the retrial. Guilty Pleas and Cracked Trials 18. A Guilty Plea case is defined as such (and not a Cracked Trial) if the guilty plea is entered at or before the PTPH (or FCMH) or a case that is not proceeded with at or before the PTPH or FCMH, unless it falls within the discontinuance provisions in paragraph 22, Schedule 1 of the Remuneration Regulations. 19. A Cracked Trial is a case that is terminated between the PTPH (or FCMH) and the first day of trial. A case where no PTPH (or FCMH) took place, but the case was listed for trial and did not get to trial or Newton Hearing, is also deemed to be a Cracked Trial. 20. Refer to High Court judgment: The Lord Chancellor v. Taylor (R. v. Beecham) (1999) which held that a change of plea from ‘not guilty’ to ‘guilty’ between the PCMH (now PTPH/FCMH) hearings does not attract a Cracked Trial graduated fee. Paragraph 1(1) Schedule 1 Paragraph 1(1), Schedule 1 Page 22 of 117 21. As held in Costs Judge decision: R. v. Baxter (2000), following a PTPH (or FCMH) where a ‘not guilty’ plea had been entered followed by a subsequent change of plea to ‘guilty’ on the same day only a Guilty Plea fee can be paid. 22. Once a trial has started with the jury being sworn and evidence called, a case cannot attract a fixed fee in any circumstances. Refer to Costs Judge decision: R. v. Maynard (1999) and R. v. Karra (2000) held that a claim cannot be made for a Cracked Trial fee once a jury is sworn even where a change of plea to ‘guilty’ is made after prosecution has opened on the first day. 23. There is no provision in the Remuneration Regulations that a Cracked Trial fee should be paid on the grounds that the indictment was amended before pleas were taken. 24. Where there is a preparatory hearing but no jury is sworn thereafter because the client pleads guilty, or the case comes to an end for any reason, the case is either a Cracked Trial where a PTPH (or FCMH) has taken place, or a Guilty Plea where a guilty plea has been entered at or before a PTPH (or FCMH). 25. A Cracked Trial fee may be paid for a hearing regardless of whether or not there has been a change of plea. Where a QC or leading junior had not previously been assigned when pleas were taken, they can still claim the applicable graduated fee. 26. At any hearing where there is a change of plea, that hearing becomes the main hearing for a Cracked Trial. 27. Adjourning a case to allow the prosecution time to decide whether or not to proceed would not qualify for a Cracked Trial fee. 28. The essence of a Cracked Trial is that after the conclusion of the Plea and Direction/PTPH (or FCMH) hearing or hearings, there are still counts on which the prosecution and defence are not agreed, so that a Trial remains a real possibility, marked by the court either fixing the date of Trial, or ordering it to be placed in a warned list. Adjourning a Plea and Directions hearing to allow the prosecution time to decide whether or not to proceed would not qualify for a Cracked Trial fee. Refer to Costs Judge decision: R. v. Mohammed (2001) which held that a Cracked Trial fee to be payable there would need to be a real possibility of a trial marked by either the judge fixing a date or ordering it be placed in a warned list. 29. Where a Trial is aborted, or a jury is unable to reach a verdict, with the prosecution later offering no evidence, a Cracked Trial fee should not be paid for the second or any subsequent intended Trial unless the case was again considered ready for Trial by being given a fixture listing or placed in a warned list. Adjourning the proceedings to allow the prosecution time to decide whether or not to proceed further – with the case subsequently being listed for mention at which the prosecution offer no evidence – would not qualify for a Cracked Trial fee. 30. Refer to Costs Judge decision: R. v. Pelepenko (2002) which held that a Cracked Trial fee can only be paid after an abortive Trial, where the prosecution have confirmed that they are proceeding to another Trial, and the case subsequently cracks. This follows the line taken in Costs Judge decision R v Mohammed (2001) (refer to paragraph 2.1.30 above) and its definition of a Cracked Trial. 31. It is possible under administrative procedures introduced on 1 November 1996 for the prosecution to offer no evidence and for the acquittal to be pronounced in court without either party, or their legal representatives, being present at court. It being a condition of this procedure that the defendant has to have already been arraigned and pleaded ‘not guilty’, a Cracked Trial fee should be paid to the Trial Advocate in such circumstances so long as the criteria in paragraph 2.1.29 are met. Page 25 of 117 2.3 Class of Offences 1. Paragraph 3, Schedule 1, of the Remuneration Regulations contains provision for selecting the correct class of offence when claiming. Paragraph 3, Schedule 1 2. The majority of commonly prosecuted indictable offences are classified as shown in the Table of Offences in the Remuneration Regulations. Any indictable offence which is not classified is automatically classified as Class H. Paragraph 3(1)(a), Schedule 1 3. Every indictable offence falls within the scheme and for the majority of commonly prosecuted indictable offences the class under which it is listed for remuneration purposes is in the Table of Offences in Part 6 of Schedule 1. Unless the advocate successfully seeks a reclassification of the offence, indictable offences not appearing in the Table of Offences shall be deemed to fall within class H. Paragraph 3(1)(a), Schedule 1 4. Where a case has more than one count on the indictment in differing classes, the advocate must select one offence and the fee is based on that offence. The fee can only be based on an offence with which the defendant represented by the advocate is charged on the indictment. As held in R. v. Mira (2007) and R. v. Martini (2011) the defence cannot claim for an offence that only co-defendants are charged with. Paragraph 27(1), Schedule 1 5. Conspiracy, incitement and attempts of offences are treated the same as the substantive offence would be. New offences can only be categorised after the regulations have been amended. 6. Where the defendant is charged with attempting to cause/inflict grievous bodily harm, the Litigator/Advocate may make a claim under offence Class B. Refer to Costs Judge decision R. v. Davis (2012) which held that where an indictment does not specify whether there was an attempt to commit a s.18 or s.20 offence and simply refers to grievous bodily harm the litigator is entitled to opt for Class B offence as it is not necessary to go behind the indictment to ascertain whether it is a Class B or C offence. Armed Robbery 7. The LAA will consider the facts of the case when determining whether a case should be classed under the Remuneration Regulations as robbery (Class C) or armed robbery (Class B), and will apply the reasoning from the judgments in R. v Stables (1999) and R. v Kendrick (2011). 8. S.8(1) of the Theft Act 1968 states: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. 9. ‘Armed robbery’ is defined in 5(1), Schedule 1, of the Serious Crime Act 2007: 5(1) An offence under section 8(1) of the Theft Act 1968 (c. 60) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon. (2)An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon. (3)In this paragraph— “firearm” has the meaning given by section 57(1) of the Firearms Act 1968; “imitation firearm” has the meaning given by section 57(4) of that Act; “offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies. Paragraph 3(1)(b), Schedule 1 Page 26 of 117 10. In Costs Judge decision R. v. Stables (1999) it was held that for robbery to be treated as armed robbery (offence group B), one of the following two examples must apply: ▪ A robbery where a defendant or co-defendant to the offence was armed with a firearm or imitation firearm, or the victim thought that they were so armed, e.g. the Defendant purported to be armed with a gun and the victim believed him to be so armed – although it subsequently turned out that he was not – should be classified as an armed robbery. ▪ A robbery where the defendant or co-defendant to the offence was in possession of an offensive weapon, namely a weapon that had been made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use, should also be classified as an armed robbery. However, where the defendant, or co-defendant, only intimate that they are so armed, the case should not be classified as an armed robbery. 11. In addition to firearms and imitation firearms, there are three categories of offensive weapon covered by the offence: i) Articles made for causing injury to the person. Articles falling within this category are considered to be offensive weapons per se, and there is no need to go on to consider the intention or purpose of the person carrying them. An important criterion in determining whether or not a particular weapon comes within this category appears to be that the article in question has no other reasonable use. Appendix P is a list of weapons which have been classified as offensive weapons under legislation. ii) Articles that have been adapted for use for causing injury to the person, such as sharpened screwdrivers, deliberately broken bottles and so on. Many household and industrial items are capable of being modified in this way, so inclusion in or exclusion from this category is once again largely a matter of fact to be determined on a case-by-case basis. iii) Articles that are not specifically made or adapted for the purpose of causing injury, but which may be considered offensive if court or jury a decides that the defendant intended them to be used for the purpose of causing injury to the person. Examples might include a sledge hammer or axe. The determining officer has a discretion to allow a claim to be paid as an armed robbery or robbery where the Defendant has an article that is not made or adapted for the purpose of causing injury. A case is more likely to be paid as an armed robbery where the article is similar in nature to an offensive weapon listed in Appendix P. Whether the item is capable of causing serious and long term injury will be the determining factor, taking into account all of the facts of the case. 12. The LAA will process claims first by considering whether the article is a firearm, imitation firearm, an offensive weapon per se or an article which has been adapted or carried with the intent of being used to cause serious injury to another, if it does then the claim will be classed as an armed robbery. If the defendant says he/she is armed with a firearm but is not, the claim will also be classed as armed robbery. If the defendant intimates that he/she has an offensive weapon, then the claim will not be classed as an armed robbery. 13. Appendix P provides a list of offensive weapons found in legislation. Other items will be considered on a case by case basis as indicated in the paragraph above. 14. There have been some conflicting decisions on what facts may constitute an armed robbery (See the costs judge decision in R v Adebayo (SCCO 37/2011)). In the LAA’s view, the Stables and Kendrick decisions justify the higher offence class B fee. Page 27 of 117 Burglary 15. While the statutory provision of Burglary (Section 9(1) of the Theft Act 1968) is not included in the Table of Offences, the statutory provision of the sentence for Burglary (Section 9(3)) is included. Therefore, Burglary falls under Class E. 16. A charge of Burglary falls within Class E, notwithstanding the fact that an allegation of inflicting grievous bodily harm may have been made. In Costs Judge decision, R. v. Crabb (2010), it was held that if the indictment states that the offence is burglary, and not aggravated burglary, then the fee payable falls under Offence Class E, and not Class B. 17. When claiming that an offence falls within Class K, it is for the advocate to provide evidence to support any valuation over £100,000 that takes an offence into a higher class if the value is not specified on the indictment. Paragraph 3(1)(c), Schedule 1 18. The LAA will review any piece of evidence that relates to the counts on the indictment to determine the value of the goods / fraud. Advocates can submit indictments, case summaries or witness statements to assist the Determining Officer with their assessment. 19. Where a count is in the form of a specimen then only the value of the count should be included. 20. Where two or more counts relate to the same property, then the value of the property should only be counted once e.g. alternatives or a course of conduct involving the same property. Paragraph 3(1)(d), Schedule 1 21. As held in R.v. Knight (2003) TICs (offences taken into consideration) should not be taken into account when calculating the value of an offence. 22. Where an advocate is dissatisfied with the classification of Class H for an offence not listed in the table of offences, the advocate may apply to the Determining Officer to reclassify the offence. 23. Note that in Costs Judge decision, R. v. Parveen Khan (2012), it was held that where the defence applied for reclassification in order to classify a case offence as Class J it would have to be a serious sexual offence. (The offence was conspiracy to traffic persons into the UK). Paragraph 3(2), Schedule 1 24. There are some cases where the offence class might change because of an additional factor such as where a Restriction Order is made, under S.41 of the Mental Health Act 1983. For more information on the limited instances where the offence classes may change, please refer to paragraph 3, Schedule 1 of the Remuneration Regulations. Paragraph 3(1)(g), Schedule 1 Part 2 - Graduated Fees for Trial 2.4 Calculation of graduated fees 1. Paragraph 4, Schedule 1 of the Remuneration Regulations specifies the formula for calculating the advocate’s graduated fee. 2. Where a Trial continues in excess of two days, the third and subsequent days are paid as daily attendance fees as appropriate to the offence for which the assisted person is tried and the category of the advocate. This fee is only paid in respect of the days on which the advocate actually attends court irrespective of the actual length of Trial. E.g. in a five-day Trial, where the advocate did not attend one of the days after the second day of Trial, two Daily Attendance Fees will be paid in addition to the basic fee. 3. Non-sitting days cannot be included as part of the Trial. Refer to Costs Judge decision: R v Nassir (1999). Paragraph 4, Schedule 1 Paragraph 5, Schedule 1 Page 30 of 117 ▪ Breach of bail hearings in the magistrates’ court and Crown Court ▪ Bail and other applications (other than those that form part of a hearing referred to in paragraph 2(1)(b) of Part 1 of Schedule 1 ▪ Mentions – including applications relating to a Trial date, but excluding those that form part of a hearing referred to in paragraph 2(1)(b), Part 1 of Schedule 1. ▪ a Sentencing Hearing other than a Deferred Sentence Hearing or where an advocate is appointed specifically to mitigate sentence ▪ a hearing, whether contested or not, relating to breach of bail, failure to surrender to bail or execution of a Bench Warrant. 10. The Standard Appearance fee is paid for any hearing on indictment (other than a Trial) that does not proceed for any reason i.e. any non-effective non-Trial hearing subject to the conditions set out in paragraph 2.12.3. As held in Costs Judge decision: R. v. Bailey (1999) once proceedings have been committed to the Crown Court any hearings regardless of venue in relation to an application for bail following breach of Crown Court bail conditions are still proceedings in the Crown Court. 11. The fee is also paid for Bail Applications, Custody Time Limit Applications, Mentions, and any other applications including applications relating to date of Trial subject to the conditions set out in paragraph 2.12.3. Refer to Costs Judge decision: R. v. Bailey (1999) as described in paragraph 2.12.8 above. 12. The fee for any Bail Application or Bench Warrant executed in the magistrates’ court after the Crown Court is seized of the case is remunerated as if it had been heard in the Crown Court subject to the conditions set out in paragraph 2.12.3. See also paragraph 2.17.9. Refer to Costs Judge decision: R. v. Bailey (1999) as described in paragraph 2.12.10 above. 13. The fee should be paid for any application not specifically covered in paragraph 24, Schedule 1 of the Remuneration Regulations regardless of the length of time of the hearing subject to the conditions set out in paragraph 2.12.3. 14. As held in Costs Judge decision R. v. Muoka (2013), where the Representation Order has been withdrawn part way through a case, the advocate may claim a standard appearance fee for each day at court that the Representation Order was in operation. 15. In appeals, committals for sentence, and breaches, a Standard Appearance fee is payable for every day that does not form part of the main hearing. The requirement for five Standard Appearance Hearings having to be held before a Standard Appearance fee can be paid (as stated in paragraph 2.12.3) does not apply to appeals, committals for sentences, and breaches. Paragraph 12(4), Schedule 1 2.13 Fees for abuse of process, disclosure, admissibility, and withdrawal of plea hearings 1. Paragraph 13 sets out the rules for claiming fees for the following hearings: ▪ where there is an Application to Stay the Proceedings, ▪ a hearing to determine whether any material should be disclosed, ▪ an application for a witness summons to ensure the disclosure of third party material or ▪ a hearing relating to the question of the admissibility as evidence of any material, (including bad character evidence). Paragraph 13, Schedule 1 2. If the hearing is on the same day as the main hearing then no separate fee is paid but the hearing, for payment purposes, is included in length of the main hearing. Paragraph 13(2), Schedule 1 3. If the hearing is held prior to the first day of the main hearing, then the fee payable is listed in the Table of Fixed Fees, after paragraph 1, Schedule 1 of the Remuneration Regulations. Paragraph 13(3) additionally explains the rules for claiming a half or full day fixed fee. Paragraph 13(2), Schedule 1 Page 31 of 117 4. A hearing relating to the failure to disclose material e.g. the prosecution not complying with a previous order rather than the court deciding whether material should be disclosed, does not attract the half-day/ full day fee and the standard appearance fee should be claimed subject to the requirements of paragraph 2.12.4. Refer to Costs Judge decision: R. v. Russell (2001). 5. For the full day fee to apply, the hearing must have started before lunch and continue after lunch. Paragraph 13(3) 6. The time of the listing of the hearing does not matter for this fee. An application to adjourn a hearing for more time does not constitute the start of a hearing. 7. The full day/half day fee is also payable for an unsuccessful Application to Withdraw a Plea of Guilty, where the application is made by an advocate other than the one attending when the original plea was tendered. 8. The appropriate fee for a Ground Rules Hearing is an admissibility of evidence hearing fee which is set out in Paragraph 24 of Schedule 1 of the Remuneration Regulations. This is in accordance with a determination by Master Rowling in the costs decision R v Gratland (2016), where he stated that the Ground Rules Hearing falls within the category of ‘any hearing relating to the question of admissibility as evidence of any material’ on the basis that the hearing is designed both to consider how evidence can be given and the specific lines of questioning that can be put forward. 2.14 Fees for confiscation hearings 1. Paragraph 14, Schedule 1 of the Remuneration Regulations specifies the types of confiscation proceedings to which the paragraph applies. It further specifies which fee is applicable according to the number of PPE. Paragraph 14, Schedule 1 2. A Drug Trafficking Act 1994 or Criminal Justice Act 1988 or Proceeds of Crime Act 2002 Confiscation Hearing attracts a half day/full day fee in addition to any other fee for work done that day. i.e. if there is an effective DTA/CJA/POCA hearing at the same time as a sentence, then both the sentence fee and the confiscation fee are allowed (subject to paragraph 2.12.4). Paragraph 14(2) and (3), Schedule 1 3. If the hearing forms a continuous part of a Trial, the time of the confiscation hearing should not be included in the length of the Trial. 4. Paragraph 14(2) contains a table of fees which apply depending on: • Where the PPE are fewer than 51 pages • Where the PPE are between 51 – 1,000 pages • Where the PPE exceeds 1,000 pages. Paragraph 14(2), Schedule 1 5. The time of the listing of the hearing does not matter for this fee. An application to adjourn a hearing for more time does not constitute the start of a hearing. 6. For Confiscation Proceedings to have proceeded, a Confiscation Hearing (so called by the court) must take place. There is no requirement for evidence to be called or for a Confiscation Order to be made. This principle was held in Costs Judge decision, R. v. Ali (Keir Monteith) (2013). 7. For confiscation proceedings which involve more than 50 PPE (served specifically for the confiscation proceedings), Advocates should send their claim, including the disbursements for the Confiscation Proceeding, to the CCU. The form to use can be accessed at: https://www.gov.uk/claim-back-costs-from-cases-in-the-criminal-courts. Confiscation Proceeding claims involving fewer than 50 PPE must be submitted to the LAA. Page 32 of 117 8. Refer to Appendix Q for information about the remuneration of confiscation proceedings. 2.15 Fees for sentencing hearings 1. Paragraph 15, Schedule 1 of the Remuneration Regulations applies to deferred sentencing hearings and sentencing hearings which do not form part of the main hearing, and the fees for these are listed in the table of fixed fees after paragraph 23, of Schedule Note: a deferred sentencing hearing is only paid for a case on indictment. Paragraph 15, Schedule 1 2. Sentencing hearings that are held on the same day as the verdict are counted towards a day at trial. 3. For all cases with a representation order dated from 3 October 2011, the fee for a sentencing hearing (which is not part of the main hearing) is treated as a standard appearance. Note that for cases with a representation order dated earlier than 3 October 2011, a separate Sentencing Hearing fee applies. Also note that Deferred Sentencing Hearings or sentencing hearings following a committal for sentence to the Crown Court are paid as a separate fixed fee (listed in the table of fixed fees following paragraph 23 of the Remuneration Regulations). Paragraph 1 and 15(1), Schedule 1 4. A Sentencing Hearing that lasts more than one day receives the Standard Appearance fee for each day. (Refer to the definition of Standard Appearance under paragraph 1, Schedule 1 of the Remuneration Regulations). Note that the first four Standard Appearances are included in the basic graduated fee. Paragraph 1, Schedule 1 5. A Sentencing Hearing that takes place at the same time as a Confiscation Hearing attracts both the Standard Appearance fee and the half day or full day confiscation fee (subject to paragraph 2.12.3). Paragraph 14(2), Schedule 1 6. If sentencing is deferred at a hearing listed for sentencing, then the advocate is entitled to the Standard Appearance fee for that hearing and the deferred sentencing fee when the case comes back to Court after the period of deferral (subject to paragraph 2.12.3). Paragraph 1 and 15, Schedule 1 7. Sentencing hearing fees should not be claimed when part of the main hearing. I.e. they are heard on the same day as a day at Trial or plea. 8. The making of an anti-social behaviour order at the time of sentencing is remunerated as part of the sentencing Standard Appearance fee only, whether the application is contested or not (subject to paragraph 2.12.3) as held in Costs Judge decision: R. v. Brinkworth (2005). 2.16 Fees for ineffective trials 1. Paragraph 16, Schedule 1 of the Remuneration Regulations describes the circumstance for when a fee is payable for an ineffective trial. Paragraph 16, Schedule 1 2.17 Fees for special preparation 1. Paragraph 17, Schedule 1 of the Remuneration Regulations sets out the circumstances where special preparation may be claimed and how it is to be calculated. Paragraph 17, Schedule 1 2. An hourly rate fee is paid for special preparation in any case on indictment when: a) it has been necessary to do work by way of preparation substantially in excess of the amount normally done for cases of the same type because the case involves a very unusual or novel point of law or factual issue. As held in R. v. Johnson (2003) the volume Paragraph 17(1),Schedul e 1 Page 35 of 117 not exceeding 2 hours. ▪ For Trials lasting not less than 36 days, and Cracked Trials where it was accepted by the court at the PTPH (or FCMH) that the Trial would last not less than 36 days – 3 additional conferences or views, each not exceeding 2 hours. 6. Unless the determining officer has reason to believe a conference that has been claimed has not in fact taken place, it should be allowed, but the conferences will be restricted to Pre-Trial Conferences not held at court and within the capped number and length. They will also be rounded up to the nearest 15 minutes. 7. All advocates that have been instructed to appear in the main hearing are entitled to claim a conference fee up to the capped number and hours, although payment will only be made to the Trial Advocate. However, paragraph 19(2) of Schedule1 requires that the appropriate officer is satisfied that the work was reasonably necessary. As held in R. v. Bedford (2003) the limit to pay for only one conference per Trial where a Trial lasts 1-10 days should be construed as per advocate (where conferences are attended separately) and not per case. 2.20 Fees for appeals, committals for sentence, and breach hearings 1. Paragraph 20, Schedule 1 of the Remuneration Regulations states that the fixed fee contained in the table following paragraph 20 is payable for these hearings. It further allows for the fee to be paid, in certain circumstances, where the hearing is listed but cannot proceed, or where a related application takes place during the course of the hearing. The paragraph also makes provision for paying advocates a reasonable amount if the fixed fee is inappropriate and for additional payment for preparation, subsequent days at court, or additional work undertaken. Paragraph 20, Schedule 1 2. Where a determining officer considers that a fixed fee for an appeal, committal for sentence, or breach does not provide reasonable remuneration for the particular case, they may instead allow an ex post facto fee. If the advocate seeks to make an ex post facto claim in the first instance, they may not also claim a fixed fee. Claims for ex post facto fees must be submitted to the CCU unit of the LAA. Paragraph 20(4), Schedule 1 3. For applications for representation for breach hearings, refer to guidance at Appendix G in the Appendices. Bench Warrants 4. A Cracked trial or Guilty Plea fee is not paid as a result of the issuing of a warrant. Paragraph20 (2) Schedule 1 5. Both warrants backed and not backed for bail are included. 6. The fee paid to the advocate who attended when the warrant was executed will depend on what happened at that hearing. 7. A fixed fee is payable whenever a Trial does not proceed because of an adjournment for any reason. Paragraph 20(2), Schedule 1 8. Hearings at which Bench Warrants are executed, or other hearings dealing with breach of bail are to be treated as any other ancillary hearing, and the same conditions shall apply i.e. there must be five hearings (including the PTPH (or FCMH) – if no PTPH (or FCMH), a separate fee is payable after four hearings) attracting a Standard Appearance fee before any separate fee is payable. Paragraph 12, Schedule 1 9. Where a bench warrant remains outstanding, fees can still be paid as a stand-alone hearing. Refer to R. v. Metcalf (2010) as described in paragraph 2.12.6 of this document. Page 36 of 117 2.21 Fees for contempt proceedings 1. Where an advocate is instructed to appear in contempt proceedings, they are paid a fixed fee for each day of the hearing in accordance with the fees set out in the paragraph. The fee should be claimed as a fixed fee. Paragraph 21, Schedule 1 2.22 Discontinuance or dismissal of hearings 1. Paragraph 22, Schedule 1 of the Remuneration Regulations sets out the level of fee payable for advocates where a case is discontinued, dismissed or remitted to the magistrates’ court. Paragraph 22, Schedule 1 2. In a case where the main hearing took place before the prosecution has served papers (i.e. a case that is discontinued or otherwise disposed of before the prosecution has served its case in accordance with the Crime and Disorder Act (Service of Prosecution Evidence) Regulations 2005) a fee of 50% of the basic fee element for a guilty plea is paid, appropriate to the offence group and the category of advocate. Paragraph 22(2), Schedule 1 3. Where the case is discontinued or otherwise disposed of after the service of the prosecution case, at the first hearing at which a plea is entered (either at the PTPH or FCMH), or at any other time before a PTPH (or FCMH) has taken place, the advocate shall receive a Guilty Plea fee. Paragraph 22(3),Schedu le 1 4. Where there is an Application to Dismiss, the fee payable will depend on the outcome and length of the hearing. (See examples at Appendix H). 5. A full or half-day fixed fee (as appropriate) can be paid on the second and subsequent days of an application to dismiss the charge or charges under Schedule 3 of the Crime and Disorder Act 1998. Paragraph 22(6)(a) and (b), Schedule 1 2.23 Noting Brief Fees 1. A daily fee is payable for advocates that take a note of the proceedings where the defendant’s case falls within the graduated fee scheme and legal aid has been extended for this purpose. The Noting Brief fees should be claimed by the Trial Advocate (if the case representation order is dated on or after 5 May 2015). Stand-Ins Paragraph 23, Schedule 1 2. Where a Trial advocate does not attend court on any Trial day but a stand-in is instructed to appear in his/her place, calculation of the graduated fee will be unaffected. Consequently, no separate fee for the advocate who stood-in for the Trial advocate may be paid. It is a matter for the Trial advocate to remunerate his/her stand-in from the graduated fee. 2.24 Fixed Fees 1. Fixed fees payable in addition to the graduated fee are listed at paragraph 24 of Schedule 1. Paragraph 24, Schedule 1 Part 6 – Miscellaneous 2.25 Identity of Instructed Advocate Page 37 of 117 1. The Instructed Advocate should be the advocate notified to the court in writing on or before the PTPH, and if that is not done, the advocate who appears at the PTPH will be deemed to be the Instructed Advocate. The Instructed Advocate may withdraw in certain circumstances. See paragraph 2.25.2 below. Where the Instructed Advocate does withdraw, they must identify the new Instructed Advocate (in writing) within 7 days. Once the identity of the Instructed Advocate has been established (or is amended), the court must attach a written note to that effect to the Representation Order. 2. An Instructed Advocate must remain an Instructed Advocate at all times, except where: Paragraph 25(1), Schedule 1 Para. 10, Schedule 1 • a date for Trial is fixed at or before the PTPH (or FCMH) and the Instructed Advocate is unable to conduct the Trial due to his other pre-existing commitments • he is dismissed by the assisted person or the litigator • he is required to withdraw because of his professional code of conduct. 3. In cases where more than one advocate is assigned, i.e. Queen’s Counsel and junior advocate or two junior advocates, there will be a Trial Advocate for each type of advocate. This advocate will be responsible for the whole of the claim for that type of advocate however many may be involved. Paragraph 26, Schedule 1 4. Advocates retained pursuant to paragraphs 32 (Cross-examination of vulnerable witnesses), 33 (Provision of written or oral evidence) and 34 (Mitigation of sentence) are likely to be instructed under a specific representation order, or amendment to an existing representation order. They are not subject to the provisions mentioned above for Instructed Advocates. They may therefore claim their fees independently of any other advocates in the case. Paragraph 32, 33,and 34,Schedule 1 5. If the Trial Advocate claims ex post facto fees in respect of the main hearing under paragraph 17(1) of Schedule 1, he or she should also claim the fees in relation to any other hearings (whether he/she or a substitute advocate attended). 2.26 Payment of Fees to Trial Advocate 1. Paragraph 26 specifies how the LAA will make payment to the Trial Advocate(s). Paragraph 26, Schedule 1 2.27 Additional charges and additional cases 1. An uplift of 20% of the main hearing fee (basic fee on indictment, fixed fee for appeals and committals) of the principal case is allowed for each additional case involving the advocate that had been heard concurrently and/or each additional defendant that the advocate represents. Paragraph 27, Schedule 1 2. For two cases to be heard concurrently, the main hearing in each case will have been heard at the same time. As held in Costs Judge decisions: R. v. Fletcher (1998) and R. v. Fairhurst (1999) cases where the main hearings are held on different days are not heard concurrently, counsel is entitled to separate fees for each case. 3. Only the pages and witnesses for the principal case are counted when there is more than one case. 4. Where an advocate selects one offence, in preference to another, or one case as the principal case, in preference to another, the advocate is still entitled to claim such fixed fees to which they would have been entitled had they selected a different offence or principal case. Paragraph 27 (6) 5. For the following ancillary hearings, (where a separate fee is payable) an uplift of 20% of the hearing fee is allowed for each additional defendant that the advocate represents at that hearing: Paragraph 27(4), Page 40 of 117 2.32 Cross examination of witness 1. If an advocate is retained, solely for the purposes of cross-examining a witness under section 38 of the Youth Justice and Criminal Evidence Act 1999, he is paid a trial graduated fee (including the full page and witness allowance). However, the advocate calculates the graduated fee from the number of days of his attendance at court. Paragraph 32, Schedule 1 2.33 Provision of written or oral advice 1. If an advocate is specifically assigned under a representation order solely for the purposes of providing written or oral advice, he shall be paid a fee calculated from the number of hours reasonable preparation, at the prescribed hourly rate. Preparation time is only paid where an advocate is assigned specifically under a representation order to give written or oral advice. Paragraph 33, Schedule 1 2.34 Mitigation of sentence 1. Where an advocate is specifically assigned under a representation order to mitigate on the defendant’s behalf solely at a sentencing hearing, he shall be paid the appropriate standard appearance fee for that sentence hearing, together with such reasonable preparation at the prescribed hourly rate. Preparation time is only paid, in addition to the sentencing hearing standard appearance fee, where an advocate is assigned specifically under a representation order to appear at a sentencing hearing either because the defendant was not represented earlier in the case or the original advocate was sacked or allowed to withdraw. It is also payable in the rare circumstance where a judge orders that a QC or leading counsel be added to the representation order after the trial but before the mitigation of sentence hearing, and they provide advocacy only for that hearing (R v Gravette (2016)). Paragraph 34, Schedule 1 Part 7 of the Remuneration Regulations contains the table of offences. Page 41 of 117 3. Litigators’ Graduated Fee Scheme Schedule 2 - Litigators’ Graduated Fee Scheme Part 1 – Definition and Scope 3.1 Interpretation 1. Paragraph 1, Schedule 2 of the Remuneration Regulations contains definitions for terms specific to the LGFS. The following paragraphs provide further clarification of the terms. Definition of a Case Paragraph 1, Schedule 2 2. A case is defined as proceedings against a single person on a single indictment regardless of the number of counts. If counts have been severed so that two or more counts are to be dealt with separately, or two defendants are to be dealt with separately, or if two indictments were committed together but dealt with separately, then there are two cases and the representative may claim two fees. Paragraph 1(1), Schedule 2 3. Conversely where defendants are joined onto one indictment or a single defendant has been committed separately for matters which are subsequently joined onto one indictment, this would be considered to be one case and the litigator may claim one fee. Refer to Costs Judge decision: Eddowes, Perry, and Osbourne (2011) which held that in cases involving multiple defendants represented by the same solicitor one claim should be submitted with the appropriate uplift for the relevant number of defendants. Paragraph 1(1), Schedule 2 4. For appeals, committals for sentence, and breach hearings, a case is defined as a single notice of appeal, a single committal for sentence whether on one or more charges, or a single breach of a Crown Court order. Paragraph 1 (1), Schedule 2 5. Where a case is transferred between courts and obtains a different court reference number, only one fee should be claimed. Trials and Retrials 6. ‘Trial’ is not defined in the regulations but the following provides some guidance on determining when trials and retrials are payable. 7. A ‘trial’ includes all hearings that pertain to the main case i.e. from when the jury is sworn (or before if legal argument is part of trial process) and evidence is called or from the date of a preparatory hearing, to the day of the verdict. Paragraph 3, Schedule 2 8. If a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense. Costs Judge decision, R. v. Henery (2010), held that in determining whether a trial has begun the question is whether there has been a trial in any meaningful sense; whether the jury has been sworn is only one of the relevant factors to be considered. For further details see paragraph 2.1.12. 9. Whilst the Remuneration Regulations do not define a ‘trial’, the LAA considers a ‘trial’ to include all hearings that pertain to the main case i.e. from when the jury is sworn and evidence is called (or before if legal argument is part of trial process) or from the date of a preparatory hearing, to the day of the verdict. Page 42 of 117 10. See paragraphs 2.1.8-12 in the Advocates’ Graduated Fee Scheme section for further guidance and scenarios for when a trial begins. 11. The ‘length of trial’ is the number of days of the trial, starting with the day the jury were sworn or where a preparatory hearing is ordered under section 29 of the Criminal Procedure and Investigations Act 1996 or section 7 of the Criminal Justice Act 1987. 12. Whenever a judge has directed that there be a preparatory hearing under Section 29 of the Criminal Procedure and Investigations Act 1996, the first preparatory hearing shall be deemed as the start of the trial. Refer to Costs Judge decision: R. v. Jones (2000) which held that this, and any subsequent preparatory hearing, will therefore be included in the length of trial calculation irrespective of whether the preparatory hearing(s) is held immediately before the rest of the trial or at an interval of some months before. No other fee should be paid for the attendance at the preparatory hearing(s). 13. The graduated fee is based on the total number of trial days, regardless of whether the court sat for ten minutes or four hours on any given particular day at trial. This includes the sentence hearing, if it is part of the last day of the trial (e.g. the same day as the verdict) but not if the sentence hearing is postponed for reports and occurs on another day. In the latter scenario, the sentencing hearing is not added to the trial length as it is wrapped up in the graduated fee. Guilty Pleas and Cracked Trials 14. A ‘Guilty Plea’ is defined as such (and not a Cracked Trial) if it is entered at or before the PTPH (or FCMH) or a case that is not proceeded with at or before the PTPH (or FCMH), unless it falls within the discontinuance provisions in paragraph 21 of Schedule 2 of the Remuneration Regulations. 15. A Cracked Trial is a case that is terminated between the PTPH (or FCMH) and the first day of Trial. A case where no PTPH (or FCMH) took place, but the case was listed for Trial and did not get to Trial or Newton Hearing, is also deemed to be a Cracked Trial. Paragraph 1(1), Schedule 2 Paragraph 1(1), Schedule 2 16. Where there is a preparatory hearing but no jury is sworn thereafter because the client pleads guilty, or the case comes to an end for any reason, the case is either a Cracked Trial where a PTPH (or FCMH) has taken place or a Guilty Plea where a Guilty Plea has been entered at or before a PTPH (or FCMH). 17. There is no provision in the Remuneration Regulations that a Cracked Trial fee should be paid on the grounds that the indictment was amended before pleas were taken. 18. A change of plea from ‘not guilty’ between PTPH and further FCMH hearings need not attract a Cracked Trial graduated fee. This principle was held in the High Court judgment: The Lord Chancellor v. Taylor (R. v. Beecham) (1999). 19. As held in Costs Judge decision: R. v. Baxter (2000), following a PTPH (or FCMH) where a not guilty plea had been entered followed by a subsequent change of plea to ‘guilty’ on the same day only a Guilty Plea fee can be paid. 20. It was held in Costs Judge decision: R. v. Maynard (1999) and R. v. Karra (2000) that once a trial has started with the jury being sworn and evidence called a case cannot attract a cracked trial fee in any circumstance. 21. At any hearing where there is a change of plea, that hearing becomes the main hearing for a Cracked Trial. Paragraph 1(1), Schedule 2 Page 45 of 117 sexual offence. (The offence was conspiracy to traffic persons into the UK). 9. Conspiracy to commit an indictable offence, contrary to section 1 of the Criminal Law Act, falls within the same class as the substantive offence. For example, Conspiracy to commit arson would be treated as arson. 10. Where the defendant is charged with attempting to cause/inflict grevious bodily harm and the Litigator/Advocate should make a claim under offence Class B. Refer to the Costs Judge decision in the case of R. v. Davis (2012) which held that the substantive Class B offence is causing/inflicting grievous bodily harm with intent. The Costs Judge ruled that if you attempt something you must intend the consequences of your actions. Armed Robbery 11. Refer to page 23 for guidance on cases classed as Armed Robbery. Paragraph 3(b), Schedule 2 12. While the statutory provision of Burglary (Section 9(1) of the Theft Act 1968) is not included in the Table of Offences, the statutory provision of the sentence for Burglary is included. Therefore, Burglary falls under Class E. 13. When claiming that an offence falls within Class K, it is for the litigator to provide evidence to support any valuation over £100,000 that takes an offence into the higher class if the value is not specified on the indictment. Paragraph 3(c), Schedule 2 14. Where two or more counts relate to the same property, then the value of the property should only be counted once. Paragraph 3(d), Schedule 2 15. A charge of Burglary falls within class E, notwithstanding the fact that an allegation of inflicting grievous bodily harm may have been made. In Costs Judge decision R. v. Crabb (2010) it was held that if the indictment states that the offence is burglary, and not aggravated burglary, then the fee payable falls under offence Class E, and not Class B. 16. There are some offences where the offence class might change because of an additional factor such as where a restriction order is made, under s41 of the Mental Health Act 1983. Refer to paragraph 3(g), Schedule 2, of the Remuneration Regulations. Paragraph 3(g), Schedule 2 Part 2 – Graduated Fees for Guilty Pleas, Cracked Trials, and Trials 3.4 Scope 1. 1. The fees under this section do not apply to either way cases elected for a Crown Court hearing. Part 3 applies to such cases. 2. It is important to note the aspects of litigation included within the graduated fee. The LGFS was modelled on historical case data and most aspects of litigation for the case are included in the final graduated fee, and therefore do not attract separate remuneration. The main areas of litigation included in the graduated fee are: ▪ Attendance on the client ▪ Attendance at court ▪ Travel and waiting time (actual travel disbursements are remunerated separately) ▪ Viewing or listening to CCTV/audio/video evidence ▪ Unused material ▪ Sentence hearing if separate from the trial ▪ Interlocutory appeals ▪ Special measures hearings. Paragraph 4, Schedule 2 Page 46 of 117 3.5 Pages of prosecution evidence 1. Paragraph 5, Schedule 2 of the Remuneration Regulations contains the table of PPE cut- off figures in a cracked trial or guilty plea case. Paragraph 5, Schedule 2 3.6 Cracked trial or guilty plea where the number of pages of prosecution evidence is less than or equal to the PPE cut-off 1. Paragraph 6, Schedule 2 of the Remuneration Regulations specifies how to calculate the fee payable where the PPE for a cracked or guilty plea case is less than or equal to the PPE cut- off and contains the table of rates which should be included in the calculation. Paragraph 6, Schedule 2 3.7 Trial where the number of pages of prosecution evidence is less than or equal to the PPE cut-off 1. Paragraph 7, Schedule 2 of the Remuneration Regulations specifies how to calculate the fee payable where the PPE for a trial is less than or equal to the PPE cut-off and contains the table of rates and the table of length of trial proxy which should be included in the calculation. Paragraph 7, Schedule 2 3.8 Cracked trials and guilty pleas where the number of pages of prosecution evidence exceeds the PPE cut-off 1. Paragraph 8, Schedule 2 of the Remuneration Regulations specifies how to calculate the fee payable where the PPE for a cracked or guilty plea case is more than the PPE cut-off and contains two tables of final fees for Cracked Trials and Guilty Pleas, which should be included in the calculation. Paragraph 8, Schedule 2 3.9 Trials where the number of pages of prosecution evidence exceeds the PPE cut-off 1. Paragraph 9, Schedule 2 of the Remuneration Regulations specifies how to calculate the fee payable where the PPE for a trial is more than the PPE cut-off and contains a table of final fees, which should be included in the calculation. Paragraph 9, Schedule 2 Part 3 Fixed Fee for Guilty Pleas and Cracked Trials 3.10 Scope of Part 3 1. Paragraph 10, Schedule 2, of the Remuneration Regulations states that, for cases with a Representation Order dated from 3 October 2011, a fixed fee (instead of a graduated fee) will be paid to litigators for cases where the defendant elects for the case to be tried in the Crown Court and subsequently the case does not proceed to Trial, either by reason of pleas of guilty or otherwise. Paragraph 10, Schedule 2 3.11 Fixed fee for guilty pleas and cracked trials 1. The fee for cases as described under paragraph 11 is £330.33. 2. The fixed fee does not apply to elected either way cases where the prosecution offer no evidence on all counts and the judge directs that a not guilty plea is entered. For these cases a graduated fee is payable. Paragraph 11, Schedule 2 Part 4 – Defendant Uplifts, Retrials, and Transfers Page 47 of 117 3.12 Defendant uplifts 1. Where a litigator represents two or more legally aided defendants on the same case, they must submit one claim and the defendant uplift. Paragraph 12(2), Schedule 2 2. Where defendants are joined to or severed from a case, providers should claim for the number of defendants they are representing, or represented, for each particular case. 3. In Costs Judge decision: R. v. Hackett (2010) it was held that if there are two or more defendants who are both named on the same indictment, despite having different T numbers allocated by the court, the case should be paid as one case with the appropriate defendant uplift. 3.13 Retrials and transfers 1. Where there has been a transfer between the original litigator and the new litigator on a case, the date of the original representation order applies for the purposes of making a claim under the LGFS. Only in exceptional cases, where the original representation order has been revoked and a new representation order is granted to a (new) litigator will the date of the new representation order apply. Paragraph 13, Schedule 2 2. For graduated fee purposes if a Trial is aborted before the jury have retired to consider their verdict and another jury is sworn, whether immediately afterwards, or after a gap, even of a few months, then the case is considered to be one Trial. 3. Where there is a transfer during Trial, the original litigator must only claim the Trial length at the time of the transfer. The new litigator may claim for the full length of the Trial (the fee payable being 50% of the full trial fee). 4. Costs Judge decision R. v Greenwood (2010) held that where a case is transferred to a new solicitor, the fee is calculated using PPE served at the point of transfer. Paragraph 13(12), Schedule 2 5. The Remuneration Regulations were amended on 3 August 2009 to provide greater clarity regarding transfers. Even though the following was introduced for proceedings on or after 3 August 2009, the LAA will use the guidance in this section for all proceedings that fall within the LGFS as the Remuneration Regulations were previously silent. 6. The term ‘transfer’ has been extended to include the grant of a representation order to an individual who immediately before the grant of the order: Paragraph 13(3), Schedule 2 ▪ Had represented him/herself ▪ Had been represented privately by the litigator named on the representation order. 7. In both scenarios in paragraph 6, the litigator shall be treated as a new litigator. If a different litigator represented the defendant privately, the litigator named on the representation order shall be treated as a new litigator. 4. 8. If the defendant chooses to represent him/herself privately after being represented by a litigator named on a representation order, the litigator shall be treated as an original litigator. 5. 9. A case will not be considered to be a transfer to a new litigator in the following situations: Paragraph 13(4), Schedule 2 a) Where a firm of solicitors is named as litigator on the Representation Order and the solicitor or other appropriately qualified person with responsibility for the case moves to another firm and maintains conduct of the case. b) Where a firm of solicitors is named as litigator on the Representation Order and the firm changes whether it be by merger, acquisition or in some other way, but Page 50 of 117 6. The decision of the Honourable Mr Justice Penry-Davey in the matter of The Lord Chancellor v Michael J Reed Ltd (2009) held that video or audio footage cannot be claimed under Special Preparation as moving footage does not fall within the context of “any document”. 3.21 Discontinuance or dismissal of proceedings 1. The term, ‘Discontinuance’ is used very specifically in the LGFS. ‘Discontinuance’ relates to a type of fee applied to certain types of cases that conclude up to and including the first hearing where a plea is entered (PTPH or FCMH). Paragraph 21, Schedule 2 2. The term ‘Discontinuance’ is used more widely in the Courts to refer to certain proceedings, such as where proceedings are discontinued by notice or an application has been made to dismiss the case and certain conditions are met. This definition of ’Discontinuance’ is not relevant within the LGFS for the purposes of claiming under the scheme. This is because where a case concludes up to and including PTPH but the prosecution has served some of its case, a pre PTPH (Guilty Plea) fee will be paid. Paragraph 21(3),Schedule 2 3. Where a case concludes up to and including a first hearing where a plea is entered (PTPH or FCMH) and the prosecution has not served any of its case, a Discontinuance fee will be paid. Paragraph 21(2),Schedule 2 3.22 Defendant uplifts 1. Paragraph 22, Schedule 2, of the Remuneration Regulations contains the rules for defendant uplifts for Discontinuances and Dismissals. Paragraph 22, Schedule 2 3.23 Warrant for arrest 1. This payment type is an Interim Payment (or ‘fee advance‘), which is claimable in situations where the defendant absconds and a warrant is issued for his or her arrest. Paragraph 23, Schedule 2 2. Where a warrant is issued for a defendant who fails to attend, (and the case does not proceed in his/her absence) and the defendant is rearrested (e.g. the warrant is executed) within three months, the case will be treated as if there was no break for the purposes of payment. This means the litigator will claim a litigator fee at the conclusion of the case as normal. Therefore, only one fee is payable. Paragraph 23(3), Schedule 2 3. Where the warrant has not been executed after three months since the issue of the warrant, the litigator can claim an Interim Payment for the portion of the case that occurred before the client absconded. Provision for such payments is made within CCLF under Bill Type ‘Fee Advance’, sub bill type ‘Warrant’. Paragraph 23(2), Schedule 2 4. At the conclusion of a case, where a client has been subsequently rearrested (the warrant is executed), the interim warrant payment may be offset against the final fee for the case. This depends on the timing of the execution of the warrant. Paragraph 23 (4) and (5), Schedule 2 5. Where the warrant is executed more than three months after the issue of the warrant, but within 15 months of the issue of the warrant, the interim warrant payment will be offset against the final fee at the end of the case. Paragraph 23(4), Schedule 2 6. Where the warrant is executed more than 15 months after the issue of the warrant and the same litigator represents the client in the case, the litigator can claim both the interim warrant payment and a whole new LGFS payment for the rest of the case. Therefore, two fees are claimable. Part 6 - Miscellaneous 3.24 Additional charges Page 51 of 117 1. Paragraph 24, Schedule 2 of the Remuneration Regulations contains provision for selecting an offence code when the defendant is charged with more than one offence. Paragraph 24, Schedule 2. 3.25 Assisted Person Unfit to Plead or Stand Trial 1. In a case, where a ‘fitness hearing’ has taken place and the Trial continues this will have been treated as a day at Trial for the purposes of payment and therefore the length of Trial will be taken to include the combined length of the main hearing and the ‘fitness hearing’. Paragraph 25(a), Schedule 2 2. 2. In a case where a ‘fitness hearing’ takes place and a Trial is not held, the litigator may claim a cracked trial fee. Paragraph 25(b, Schedule 2) 3. In a case where a ‘fitness hearing’ takes place and a guilty plea is entered subsequently, the litigator may claim a guilty plea fee. 4. Where such a ‘fitness hearing’ takes place, litigators will be expected to submit documentary evidence to the LAA to support their additional Trial length claim or other payment requirements under this provision. Paragraph 25(c), Schedule 2 Paragraph 25, Schedule 2 3.26 Fees for confiscation proceedings 1. Confiscation proceedings continue to be remunerated by ex post facto determination. 2. Litigators should send their claims for Confiscation Proceedings, including the disbursements for the Confiscation Proceeding, to the CCU. The form to use can be accessed at: https://www.gov.uk/claim-back-costs-from-cases-in-the-criminal-courts. 3. Refer to Appendix Q for information about the remuneration of confiscation proceedings. Paragraph 26, Schedule 2 3.27 Prescribed fee rates 1. Paragraph 27, Schedule 2 of the Remuneration Regulations contains the table of fees for confiscation proceedings. Paragraph 27, Schedule 2 3.28 Allowing fees at less than the prescribed rates 1. Paragraph 28, Schedule 2 of the Remuneration Regulations specifies when it is possible that a lower fee will be paid for confiscation proceedings. Paragraph 28, Schedule 2 3.29 Allowing fees at more than the prescribed fee rates (to a maximum of 100%) 1. Paragraph 29, Schedule 2 of the Remuneration Regulations specifies the criteria for when it is possible to allow a higher fee to be paid for confiscation proceedings. 2. Where Litigators wish to submit their claims electronically they should email
[email protected] for advice and assistance. Paragraph 29, Schedule 2 3.30 Evidence Provision Fee 1. Litigators may claim an evidence provision fee (EPF) in any case where, as a result of the introduction of means testing in the Crown Court, it has been necessary to provide additional evidence of the client’s means. 2. This fee may only be claimed where it has been necessary for the defendant to provide evidence of his/her means and this requirement is over and above the evidence needed to support the legal aid application in the magistrates’ court. 3. The fee is only payable when ALL of the additional evidence required has been provided. Page 52 of 117 4. The evidence fee cannot be claimed for: a) Summary only proceedings b) An either way offence that concludes in the magistrates’ court c) Applicants who are under 18 or in receipt of a passporting benefit d) Applicants who do not have capital assets and there is no additional evidence to be provided e) Equity evidence as this is not required f) Hardship applications sent to LAA’s National Courts Team g) Evidence provided post-conviction h) Applications where evidence is required but this has not been provided. This includes cases sent to the LAA’s National Courts Team. 5. The EPF is a two-tier fee, the lower tier fee being payable for the majority of standard applications that do not involve applicants on passporting benefits. The higher tier fee is payable for complex cases, ie those where the applicant is self-employed or must provide five or more pieces of evidence to establish an accurate picture of their financial position. 6. The EPF may be claimed on the LF1 form. For details on how to claim, refer to Appendix K and further guidance in the Criminal Legal Aid Manual at: https://www.gov.uk/government/publications/criminal-legal-aid-manual. Page 55 of 117 • Uncollected contributions and the administrative cost of chasing these contributions are ultimately borne by the tax payer. 2. “Good reason” 2.1 The Funding Order (the new Remuneration Regulations) does not define “good reason” but appeals to Costs Judges have consistently held that administrative errors within a solicitor’s firm, chambers or an advocate’s office are unlikely to be considered “good reason” for late submission. Bereavement due to the death of a close family member or a practitioner’s serious illness, burglary, floods leading to a loss of records are all likely to be considered to be “good reason.” 2.2 When the LAA first started processing AGFS claims in February 2011, we recognised that there could be a delay in advocates getting hold of the additional evidence that we asked to be sent in with the claim, e.g. a copy of the original representation order, PPE information etc. Given this, in situations where an advocate could demonstrate that they had tried on several occasions to gather this information, we would accept this as “good reason” to extend the time limit. 2.3 We have been processing claims for 20 months now, and expect an advocate to ensure that all of the relevant evidence is in place well before the time comes to submit a claim. 2.4 Costs Judges have recently confirmed that late submission due to the need to obtain page count from the prosecution (R v Fletcher) does not constitute “good reason”. 3. Requesting an extension to the time limit 3.1 If, under either the LGFS or AGFS, you think that you are unlikely to be able to submit your claim within time, please e-mail the appropriate Graduated Fee Team to seek an extension of time as soon as possible before the deadline expires setting out the grounds to justify your request. Advocates who are requesting an extension on the basis that they cannot obtain documents from the instructing solicitor will be asked to provide details of the firm that is refusing to provide documents so that they can be passed on, if necessary, to the relevant Contract Manager. 4. “Exceptional Circumstances” 4.1 Where there is no “good reason” for a claim being submitted after the time limit the LAA will only consider assessing it in “exceptional circumstances”. . Where there are “exceptional circumstances” the LAA must consider whether it is reasonable to impose a financial penalty. As with “good reason” the Funding Order (the new Remuneration Regulations) does not define “exceptional circumstances” nor does it set out a framework for the imposition of financial penalties. Under “exceptional circumstances” appeals have held that the disallowance of the entirety of a claim could constitute a disproportionate sanction, and accordingly, an exceptional circumstance. 4.2 The Costs Judge, in assessing four linked appeals, on 10 August 2012 provided general observations on the issue of “exceptional circumstances”, financial penalties and the approach the LAA takes to assessing out of time claims in contrast to the approach previously adopted by the National Taxing Team when they assessed ex post facto claims before the introduction of the LGFS. 4.3 The Costs Judge noted that, prior to 2007, the National Taxing Team (now the CCU) did not enforce the time limits for submitting claims “either vigorously or consistently” but, in January 2007, published guidance: Page 56 of 117 with a view to applying consistent criteria to the time limits set out under the Funding Order 2013. Claims submitted less than three months out of time (viz within six months of conclusion) would suffer no penalty. Outside that time scale, the NTT would refuse to determine claims unless there was good reason or there were exceptional circumstances for the delay. Where a good reason was advanced, it was unlikely that there would be a penalty. Where exceptional circumstances existed, there was a tariff: for claims submitted over three months but less than six months out of time there was a 10% penalty, between six months and twelve months, a 15% penalty, and over twelve months out of time, a 20% penalty. It follows that many appeals which have come before Costs Judges over the past five years arising out of delays in requesting determination of ex post facto claims have been resolved on the basis of this criteria. 4.4 The Costs Judge, however, recognised that the introduction of both the LGFS and CCMT justify a different approach to assessment of late claims to that which had been adopted by the National Taxing Team in 2007, noting that the National Taxing Team approach: recognised that time limits were likely to be tight where bills were complex and required the lodging of the case papers. The former (i.e. the LAA approach), on the other hand, places emphasis on the fact that all that is now required is form LF1: no longer is there any need for complicated bills or case papers. In addition, the CCMT has placed an extra burden on the LAA in its running of the Scheme. 4.5 When considering whether the LAA was justified in rejecting claims in their entirety when they were submitted out of time without either “good reason” or “exceptional circumstances” the Costs Judge considered, and rejected, the argument that a total disallowance of the claim would represent a disproportionate penalty and therefore constitute “exceptional circumstances”: If it was known that article 6 was not imperative and that litigators would almost always be forgiven when total disallowance was under consideration, there would be little incentive for complying with article 6. The fact that that was almost invariably the case under the ex post facto regime when disallowance only occurred in cases of extreme delay, would not be a proper reason for the LAA to continue that practice. Timetables and deadlines are part and parcel of everyday life: where solicitors fail to comply, for example, with the requirements for serving notices under the Landlord and Tenant Act Part II, there is no way back: here, all that the LAA is asking is that litigators comply with the Article. For professional firms, it should not be too much to expect that they should do so within the three months allowed. 4.6 Having concluded that, in some circumstances, it is not unreasonable to disallow a claim in its entirety as a result of out of time submission, the Costs Judge provided guidance on how the LAA should treat cases that are submitted out of time without “good reason”: I agree in principle with XXXX that the length of the delay and the amount of money involved are capable of being exceptional circumstances. However, if that be right, it does not automatically follow there is therefore a hard and fast rule that so many days late results in a disallowance of £x, but if the sum involved exceeds £y, the reduction should be capped at £z . 4.7 Rather than addressing “exceptional circumstances” arguments by adopting a rigid framework for imposing financial penalties where claims are submitted out of time without “good reason” the Costs Judge has directed the LAA to assess these claims on a case-by-case basis: Page 57 of 117 It follows that I consider that each case must turn on its own facts and must be looked at on an individual basis; it is not possible to deal with the appeals before me by creating a tariff in the sense that one month late might not attract any penalty, but that two months would do so, depending on the sum in question or the size of the litigator firm. This would also apply to appeals is under the Advocates’ graduated fee scheme where total disallowance might bear more heavily on a junior counsel at the start of his or her career than a Leader with many years in practice. 4.8 Therefore, litigators and advocates who submit claims out of time without “good reason” should provide an explanation as to the impact on them of a total disallowance of fees for the specific case. The amount of detail need not be equivalent to that provided when asking for payments to be expedited on hardship grounds but must be sufficient to enable the Determining Officer to understand the impact of any decision to disallow or reduce fees. The Determining Officer may, in addition to considering the imposition of a financial penalty, share the information provided with the relevant Contract Manager if there is cause for concern. 5. Penalty for Late Submission In situations where the determining officer considers that there are exceptional circumstances but a penalty for late submission is appropriate, in order to improve the claimant’s cash flow, the LAA will apply the penalty straight away (giving details with the determination) but the claimant has the right to challenge this rather than delaying payment further pending determination as to the reasonableness of any penalty and the level thereof. Page 60 of 117 Please provide a detailed breakdown of any travel to conference and views you have incurred including dates and miles travelled where relevant. Please provide full destinations e.g. HMP Walton, so that reasonable time and expenses can be determined. Section 6: Claim Summary For guidance on VAT please refer to HM Revenue and Customs. Please ensure you tick the relevant box if you wish to receive a single payment for your claim as opposed to individual payments for each element. Enclosure Check List – Please ensure you have provided all the relevant materials to support your claim. Additional information – Please give us any further information here that will allow us to process your claim. If there was anything out of the ordinary in your case, please provide sufficient detail to properly explain what happened. LGFS Claim Guidance Firm’s Name & Address – It is important that these details are completed and are accurate as they will be used to return posted items, such as disks, to you. The LAA cannot take responsibility for lost items if an incorrect address was provided on the claim. Defendant details - You only need to give details of additional defendants if you represented them. Details of co-defendants represented by another solicitor are not required. Evidence Provision Fee Claimed – This element of the claim is explained in paragraph 3.30 of the Crown Court Fee Guidance. VHCC notification – Refer to paragraph 1.12 of the Crown Court Fee Guidance for more information on Very High Cost Cases. Details of disbursements – All disbursements claimed, regardless of the value, must be listed. A copy of disbursement receipts or invoices should be provided for every individual disbursement that is more than £20 (and uploaded as a document to the CCD system). Committal for Trial - You may only claim this fee when you are claiming your final litigator fee. You may claim one fee per committal hearing. Therefore, if you represented more than one defendant at the same hearing, you may claim one fee. If you represented more than one defendant for the Crown Court case but they appeared at different committal for trial hearings, you may claim one fee for each hearing. Special Preparation - Where you have been served evidence that meets the definition of PPE (see paragraph 20, Schedule 2, of the Criminal Legal Aid (Remuneration) Regulations 2013) and it has been served electronically on the court, you may submit a claim for special preparation. This is done through the CCD online billing system by uploading the special preparation form as part of the attachments to the claim. Where you have been served with more than 10,000 PPE (for cases with a representation order on or after 3 August 2009 may make a claim for special preparation. Page 61 of 117 The hourly rates can be found in the table following paragraph 27, Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013. See paragraph 3.20 of the Crown Court Fee Guidance for further information on Special Preparation. Trial Type – The type of case on indictment can be: guilty plea, cracked trial, discontinuance, trial, cracked before re-trial or re-trial. You can also claim for some hearings without an indictment, these are: committal for sentence, contempt, breach, appeal against sentence and appeal against conviction. Offence class and Description: you may select any charges included on the indictment for your case. Change of solicitor – original or new – Refer to paragraph 3.13 of the Crown Court Fee Guidance for information regarding the rules for claiming as an original or new litigator. Hardship Claims – Evidence of hardship must be provided (e.g. bank statements, letters from bank). Refer to paragraph 1.21 of the Crown Court Fee Guidance. Warrant Claims – These are for work up to and including warrant issue date. Where the case has subsequently finished, a final fee payment should be claimed. Refer to paragraph 3.23 of the Crown Court Fee Guidance. Page 62 of 117 Appendix C Key Contact List For general queries about Crown Court claims: Email: LGFS Claims -
[email protected] AGFS Claims –
[email protected] Telephone: Tel. 0300 200 2020– lines are open 9am - 5pm To post disks containing evidence for claims made through the CCD billing system the envelope should be marked either ‘AGFS’ or ‘LGFS’ and posted to: Legal Aid Agency Fothergill House 2nd Floor, 16 King Street Nottingham, NG1 2AS DX: 10035 Nottingham 1 All discs must be accompanied by a cover sheet providing details of the sender, their return address, the client name, case number and court and the date upon which the claim was submitted Prior Authority Applications to Incur Expenses Litigators may apply for Prior Authority (to incur expenses under regulation 13(1) of the Remuneration Regulations) to the Prior Authority team by submitting an online CRM4 application. Prior Authority Applications to Incur Travel and Accommodation Costs Advocates and litigators may apply for approval for Crown Court travel (Regulation 13(3)) by emailing the request to the LAA Prior Approval team at
[email protected]. The LAA’s Criminal Cases Unit (CCU): The CCU processes claims for the following areas of work: Confiscation claims: - Ex post facto claims from litigators in the Crown Court relating to confiscation proceedings. - Ex post facto claims from Advocates in the Crown Court relating to confiscation proceedings which have 50 PPE or more. All claims for confiscation proceedings must be submitted through the CCD online billing system. All other ex post facto confiscation claims should be submitted on Form 5144 to: Criminal Cases Unit Legal Aid Agency 1st Floor Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ DX: 724785 Manchester 44 Page 65 of 117 into account ‘any other relevant circumstances’ such as the importance of the evidence to the case, the amount and the nature of the work that was required to be done and by whom, and the extent to which the electronic evidence featured in the case against the defendant. A prosecution summary or transcript of an interview with a defendant. Paper or digital. PPE. ABE interviews. Paper or digital. Where the transcript is relied upon by the prosecution, it will be treated as PPE. First Stage Streamlined Forensic Report (SFR1). Paper or digital. The SFR1 is a short report that details the key forensic evidence the prosecution intends to rely on. The prosecution’s aim is to achieve early agreement with the defence on forensic issues (or where this cannot be achieved, to identify the contested issues). Where an SFR1 does result in agreement of forensic issues, the SFR1 will be treated as PPE. Note, the SFR1 will be paid as PPE in circumstances where no SFR2 is served for whatever reason rather than solely because the SFR1 is agreed. Pages Counted as PPE Page 66 of 117 3. The following material make up the PPE count: - The fullest committal bundle or set of served prosecution documents (R v Brazier (1998), R v Sturdy (1998), R v Ward (2012), and, if relevant, the total on the final Notice of Additional Evidence (NAE) should be used (R v Powell (2016)). As held in R. v Rigelsford (2005), where the prosecution only relies on a sample of evidence available, payment can only be paid for that which is formally admitted. This is also supported in other Senior Courts Costs Office decisions such as R v Samoon and Baryali (SCCO Ref: 24/16), R v Motaung (SCCO Ref 179/15) and R v Powell (SCCO Ref 7/16), where the CPS had extracted and served on the defence the relevant pages from a disc and clearly disclosed the balance of material on the disc as unused. - Transcripts of video evidence that the judge requests. - A page of prosecution evidence is included in the count irrespective of the number of lines of content. Pages or Types of Evidence Not Counted as PPE 4. The following aspects or types of evidence are not counted as PPE and are wrapped up in the graduated fee. The following is a non-exhaustive list of items excluded from the PPE proxy: - Unused Material. - Other digital exhibits (e.g. CCTV, video evidence (including video interviews), and audio evidence). - Versions of a transcript that have been edited for the jury. - Title pages, index pages, exhibit labels, separator pages, fax covering sheets. - No allowances for small or large typefaces, or duplicated pages (including those that have minor differences (R v El Treki (2001)). - Evidence served after the litigator or advocate is no longer representing the client. - Defence generated evidence (including the product of any defence analysis of forensic computer images or copies of electronic storage media (e.g. hard drives)). - Transcripts edited for the purpose of being put before the jury. - Recordings of interviews with victims, and transcripts of those interviews, do not fall within the PPE definition in regulations and are not considered PPE (R v Gleeson (2011)). - Pre-sentence and psychiatric reports. - Physical exhibits. - Software or databases. - Advance disclosure. - Defence generated printed material (R. v. Ward (2012)). - Applications for Special Measures. - Prosecution Opening. - Case Summary. - Indictment. - Application to adduce bad character or hearsay evidence. - Evidence served for confiscation proceedings. - Admissions. PPE Validation 5. The process for validating PPE is as follows: a) CPS will provide paginated evidence bundles supported by an endorsement of the PPE on the committal bundle and updated running totals of PPE on any NAE. For non-CPS cases, a paginated bundle and index is provided. Page 67 of 117 b) Litigators and advocates submit their claim to the LAA, supported by evidence of the PPE (along with documents claimed on the LF1 and AF1). This must include electronic evidence that is to be included in the PPE count. c) In cases where the advocate is relying on the LAA Report from the DCS as evidence of PPE, the whole of the LAA Report must be provided, i.e. the front page which gives details of the defendant and case as well as the subsequent pages that give details of the documents, etc, contained within each section d) The LAA validate claims against the supporting evidence. Where this is inconsistent with the claim, the LAA may attempt to liaise with the prosecuting authority to determine the correct PPE figure. 6. Please note the following in relation to this process: a) Evidence of PPE must be sourced from material generated by the prosecution and provided to the defence teams during the client’s case. Such evidence of PPE includes: • Committal bundle or NAE front sheets endorsed with the CPS / prosecuting authority page count • Index of evidence • Paginated pages • Any other objective evidence that has been generated by the prosecution. b) Evidence of PPE must be generated by the prosecution office and cannot be a document prepared by the defence or prosecution advocate. c) The PPE form is no longer an acceptable form of evidence. d) Where the prosecution has provided a committal bundle or NAE cover sheet or have paginated the evidence, it is the responsibility of providers to ensure they maintain this evidence for the purposes of claiming payment. e) HMCTS is not required to provide copies of any documents. f) Prosecuting authorities are not required to provide duplicate copies of supporting evidence for PPE purposes. g) The LAA and CPS have agreed that where the bundles of evidence have not been paginated or indexed, or where a running total of the PPE has not been endorsed on committal bundles or NAE then litigators should inform the LAA and the LAA will raise this as an issue with CPS directly. h) The CPS will not routinely deal with queries raised directly with them by defence litigators in relation to PPE after cases are concluded. i) For non-CPS cases, litigators should inform the LAA where evidence has not been paginated or indexed and they can therefore not provide PPE evidence to support their claim. Notice of Additional Evidence 7. The CPS routinely serves additional evidence under a standard NAE but not all prosecuting authorities follow the same format. Therefore, in limited circumstances, a formal document from the prosecuting authority, identifying the new evidence as being used evidence and formally served as part of the prosecution case may be sufficient. Page 70 of 117 - R v Sibanda (SCCO Ref 227/14): where a defendant is charged with substantive offences telephone data relating to co-defendants is not sufficiently relevant to merit inclusion in the PPE. R v Sana [2014] 6 Costs LR 1143: The Costs Judge held that if some electronic evidence is relevant to the case and some is irrelevant to the case, the nature of the document and the circumstances mean that it is not reasonable to treat the irrelevant material as PPE. However, reasonable time spent considering the material could still be the subject of a claim under the special preparation rules. - R v T Mahmood and Z Mahmood (SCCO Ref 149/16;155/16 and 185/16): in cases where a telephone report is served it may be appropriate to subdivide a report into its individual sections and allow only the relevant tabs or sections. In particular, there is a distinction between “social material” i.e. audio files, images, photographs, internet history, cookies, installed applications etc that may properly be remunerated as special preparation and telecommunications data i.e. contacts, call history, SMS and other messages which is more likely to be paid as PPE. - R v Robertson (SCCO Ref 22/17): personal photographs or images contained on a defendant’s telephone are unlikely to merit inclusion within the pages of prosecution evidence. - R v Yates (SCCO Ref 66/17): in certain cases, it is appropriate to draw a distinction between material directly attributable to the defendant which is integral to the case and should be included in the PPE and material attributable to the co-defendant which is useful only as additional background and therefore payable as special preparation. Unused Material 21. Unused Material is not payable under the fee schemes. 22. In the majority of cases it should be clear whether material has been served as used material (as it will be included in an NAE) or disclosed as unused material. 23. However, in Lord Chancellor v Edward Hayes [2017] EWHC 138 (QB), the High Court held that defence practitioners should not be penalised for lack of formal service. Therefore, where evidence was served without an NAE, but was clearly integral to the prosecution case it should be treated as PPE. 24. Where there is an issue regarding the status of certain material, the determining officer should have regard to the principles set out in paragraph 50 of Lord Chancellor v SVS Solicitors (2017) EWHC 1045 (QB): i. The starting point is that only served evidence and exhibits can be counted as PPE. Material which is only disclosed as unused material cannot be PPE. ii. In this context, references to “served” evidence and exhibits must mean “served as part of the evidence and exhibits in the case”. The evidence on which the prosecution rely will of course be served; but evidence may be served even though the prosecution does not specifically rely on every part of it. iii. Where evidence and exhibits are formally served as part of the material on the basis of which a defendant is sent for trial, or under a subsequent notice of additional evidence, and are recorded as such in the relevant notices, there is no difficulty in concluding that they are served. But paragraph 1(3) of Schedule 2 to the 2013 Regulations only says that the number of PPE “includes” such material: it does not say that the number of PPE “comprises only” such material. Page 71 of 117 iv. “Service” may therefore be informal. Formal service is of course much to be preferred, both because it is required by the Criminal Procedure Rules and because it avoids subsequent arguments about the status of material. But it would be in nobody’s interests to penalise informality if, in sensibly and cooperatively progressing a trial, the advocates dispensed with the need for service of a notice of additional evidence before further evidence could be adduced, and all parties subsequently overlooked the need for the prosecution to serve the requisite notice ex post facto. v. The phrase “served on the court” seems to me to do no more than identify a convenient form of evidence as to what has been served by the prosecution on the defendant. I do not think that “service on the court” is a necessary precondition of evidence counting as part of the PPE. If 100 pages of further evidence and exhibits were served on a defendant under cover of a notice of additional evidence, it cannot be right that those 100 pages would be excluded from the count of PPE merely because the notice had for some reason not reached the court. vi. In short, it is important to observe the formalities of service, and compliance with the formalities will provide clear evidence as to the status of particular material; but non- compliance with the formalities of service cannot of itself necessarily exclude material from the count of PPE. vii. Where the prosecution seek to rely on only part of the data recovered from a particular source, and therefore serve an exhibit which contains only some of the data, issues may arise as to whether all of the data should be exhibited. The resolution of such issues will depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data. It should almost always be possible for the parties to resolve such issues between themselves, and it is in the interests of all concerned that a clear decision is reached and any necessary notice of additional evidence served. If, exceptionally, the parties are unable to agree as to what should be served, the trial judge can be asked whether he or she is prepared to make a ruling in the exercise of his case management powers. In such circumstances, the trial judge (if willing to make a ruling) will have to consider all the circumstances of the case before deciding whether the prosecution should be directed either to exhibit the underlying material or to present their case without the extracted material on which they seek to rely. viii. If – regrettably - the status of particular material has not been clearly resolved between the parties, or (exceptionally) by a ruling of the trial judge, then the Determining Officer (or, on appeal, the Costs Judge) will have to determine it in the light of all the information which is available. The view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial (and not merely helpful to the defence), the Determining Officer (or Costs Judge) would be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case-specific decision. In making that decision, the Determining Officer (or Costs Judge) would be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution’s initial view as to the status of the material was correct. If the Determining Officer (or Costs Judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence. ix. If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I Page 72 of 117 have indicated above, the LAA’s Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures that public funds are not expended inappropriately. x. If an exhibit is served in electronic form but the Determining Officer or Costs Judge considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by Paragraph 20 of Schedule 2. xi. If material which has been disclosed as unused material has not in fact been served (even informally) as evidence or exhibits, and the Determining Officer has not concluded that it should have been served (as indicated at (viii) above), then it cannot be included in the number of PPE. In such circumstances, the discretion under paragraph 1(5) does not apply. 25. All decisions must be made on the specific facts of the case. The onus is on the provider to supply all the relevant information and if the determining officer is unable to conclude, based on the information provided, that the material was in fact served then it must be treated as Unused Material, even if it was important to the defence. 26. In addition to the above decision, if the prosecution gives written confirmation that previously unused material will instead be relied upon as evidence then the material will be included in the page count (R v Sales (2007)). CCTV/ DVD Footage 27. Time spent watching CCTV/ DVD footage is included within the initial fee. Moving images cannot be paid as Special Preparation (and do not count as pages) unless they were intended to be converted into still images (R. v Uddin (2010)). In addition, audio-visual recordings cannot be paid as Special Preparation (High Court judgment, The Lord Chancellor v. McLarty and Co. (Zacharia) (2011)). Advance Disclosure 28. Advance disclosure does not count towards PPE. This is because such evidence is often duplicated in the committal or first prosecution bundle. 29. However, in circumstances where the case concludes before the prosecution documents are served, and it does not fall within paragraph 22 of Schedule 1 of the Remuneration Regulations (i.e. is not discontinued or dismissed), and the PPE count is relevant, the correct number of pages of PPE is the material served on the court for the purposes of enabling the Judge to deal with the case, which is usually similar to the advance disclosure bundle. Bad Character or Hearsay 30. Where bad character or hearsay evidence is not served under an NAE, it cannot be claimed as PPE. In Costs Judge decision, R. v. McCall 2010, it was held that bad character evidence cannot be included in the page count unless a notice of additional evidence was included, as distinct from a notice to introduce such evidence. 31. For further information see: https://www.cps.gov.uk/legal-guidance/bad-character-evidence PPE Limitation 32. When a representative stops providing representation for any valid reason, the volume of PPE that can be claimed is limited to what has been served on the court up to the date the representative finishes Page 75 of 117 Appendix F Alleged Breach of a Court Order 1 Introduction This guidance clarifies the position regarding the process and criteria for the grant of criminal legal aid when an individual is alleged to be in breach of an order made by either the Crown Court or magistrates’ court. 2 Court orders There are a wide range of orders that may be made by a criminal court. Whilst this guidance does not seek to deal with each and every court order, particular focus is given to those orders commonly made following conviction as these have been the most regular subject of queries. • ‘Probation’ Order – where a defendant is convicted and the court declines to impose a custodial sentence, the offender is commonly made subject to a ‘community order’ or ‘suspended sentence order’. • ‘Community orders’ comprise one or more requirements with which the offender must comply; these can include supervision through regular appointments with a probation officer, curfew, exclusion from a specific place/area, drug rehabilitation, alcohol and mental health treatment, as well as residence at a specific address. • ‘Suspended sentence orders’ are sentences of less than 12 months in prison, suspended for between 6 months and two years. It includes the same requirements as those available for the ‘community order.’ An alleged breach of an order can result in the individual being brought back before the court and potentially being sent to prison. In addition, existing guidance – notably the Criminal Legal Aid Manual - draws attention to a range of court orders which can be made under the heading of ‘prescribed proceedings’. These are often made, though not exclusively, following the defendant’s conviction. This list includes: Anti Social Behaviour Orders, Sexual Offences Prevention Orders, Restraining Orders, Serious Crime Prevention Orders, Violent Offender Orders, Drinking Banning Orders and Domestic Violence Prevention Orders. 3 Scope of legal aid to cover alleged breach cases The Legal Aid, Sentencing, and Punishment of Offenders Act 2012 makes clear that the scope of the criminal legal aid scheme includes ‘proceedings before a court for dealing with an individual convicted of an offence, including proceedings in respect of a sentence or order’, - section 14(b) – and ‘(h)such other proceedings, before any court, tribunal or other person, as may be prescribed’. – section 14(h). All alleged breaches of a court order, whether made by the magistrates’ court or Crown Court will, therefore, fall within scope of criminal legal aid. 4 Applying for criminal legal aid in an alleged breach case Page 76 of 117 Regulations make clear that where an alleged breach of a court order has arisen, proceedings to deal with the alleged breach cannot be regarded as incidental to the main proceedings. For this reason, a new legal aid application is required. See The Criminal Legal Aid (General) Regulations 2013/No.9: Representation for criminal proceedings: proceedings which are not to be regarded as incidental proceedings: 20. (1) The proceedings set out in paragraph (2) are not to be regarded as incidental to the criminal proceedings from which they arise. (2) The proceedings are— (a) proceedings for applications for judicial review or habeas corpus in relation to criminal proceedings; and (b) proceedings for dealing with an individual who is alleged to have failed to comply with an order of the magistrates’ court or the Crown Court. 5 Circumstances in which an alleged breach of a court order may arise and Representation Order requirements These broadly fall into 1 of 3 groups: (a) 'stand-alone' breach of a court order - eg; breach of a community order (CCO) or suspended sentence order (SSO) which does not give rise to a new criminal offence, but requires the individual to be brought back and dealt with by the relevant court. An example of this would be a failure to carry out unpaid work, or failing to report to the probation officer. In such cases, the alleged breach is prosecuted by the probation service. Most commonly, breach of a Crown Court order is dealt with by the Crown Court, although some Crown Court orders specify that an alleged breach may be dealt with by the magistrates’ court Representation Order Requirements The application for legal aid should be submitted to the relevant magistrates’ court; if the breach hearing is to be heard at the magistrates’ court, the application is subject to the Interests of Justice test and the magistrates’ court means test If the breach hearing is to be heard in the Crown Court, the application is subject to Interests of Justice Test only - it is not means tested. Therefore, it is the venue at which the breach hearing will take place that will determine whether the application is means tested, not the venue at which the original order was made. Note: only in circumstances where the defendant is brought before the Crown Court and there is not time to instruct a litigator can the Crown Court exercise its power to grant a representation order in breach proceedings. In such cases the representation order will cover the advocate for the work carried out at the initial hearing. If, following that hearing, there is further work which require the services of a litigator e.g. the matter is adjourned for further hearings or the defendant requires assistance with preparing an appeal, the representation order granted by the Crown Court will also cover the work carried out by the litigator. There Page 77 of 117 is no requirement for the litigator to submit a fresh application to the relevant magistrates’ court in these circumstances. See the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013: Determinations by the Crown Court 6. On the application of an individual, the Crown Court may make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of criminal proceedings before the Crown Court— (a) which are described in section 14(g) of the Act (criminal proceedings); (b) which arise out of an alleged failure to comply with an order of the Crown Court and it appears to the court that there is no time to instruct a provider; or (c) where the individual is brought before the court under section 81 of the Senior Courts Act 1981(b) in pursuance of a warrant issued by the Crown Court. (b) breach of a court order which automatically gives rise to a criminal offence – e.g. breach of an ASBO is a criminal offence; In such cases a fresh criminal prosecution is brought by CPS. Representation Order Requirements The representation order granted for the trial of the new offence covers the sentencing hearing at which the breach of the order will be taken into account. (c) a fresh criminal offence is alleged to have been committed by the defendant and this effectively puts the defendant in breach of an order previously made by the court following conviction for an earlier offence. In such cases, the individual is first dealt with by the court in relation to the new offence; if this leads to a conviction, it is at the point of sentencing that breach of the court order will also be taken into account. Representation Order Requirements The representation order granted for trial involving the new offence covers the sentencing hearing; the representation order will therefore extend to cover consideration of breach of an earlier court order in relation to a previous criminal offence. 6 Submitting LGFS and AGFS Claims for Breaches of Crown Court Orders Since the introduction of Crown Court Means Testing in 2010 and the revisions to the General Regulations, the LAA has received claims under both the AGFS and LGFS for Breach of Crown Court Order fixed fees supported by the original representation order (i.e. the representation order that was in place for the proceedings in which the Crown Court Order was made). In the absence of clear guidance on the issue, the LAA has been paying these claims. Now that the position has been clarified, the LAA will, for Breach Proceedings submitted on or after 1 January 2013, only process claims that are supported by either: Page 80 of 117 DAY ONE (DA) DAY TWO (DA) DAY THREE (G Plea at PTPH) Page 81 of 117 Appendix H Case Type Scenarios Please refer to the table below for a list of the case types you can claim under the LGFS. The original solicitor is the solicitor instructed by the defendant before the transfer occurs. The new solicitor is the solicitor instructed by the defendant after the transfer has occurred. The original solicitor hands over the case to the new solicitor. The new solicitor takes over the case from the original solicitor. Scenario Definition/Clarification Discontinuances (Pre first hearing at which pleas are entered) Refer to paragraph 21, Schedule 2 of the Remuneration Regulations. Guilty Plea Refer to Part 2, Schedule 2 of the Remuneration Regulations. Cracked Trial Refer to Part 2, Schedule 2 of the Remuneration Regulations. Trial Refer to Part 2, Schedule 2 of the Remuneration Regulations. Appeal against Conviction from the Magistrates‘ Court Refer to paragraph 15, Schedule 2 of the Remuneration Regulations Appeal against Sentence from the Magistrates‘ Court Refer to paragraph 15, Schedule 2 of the Remuneration Regulations Committal for Sentence Refer to paragraph 15, Schedule 2 of the Remuneration Regulations Hearing Subsequent to Sentence Refer to paragraph 16, Schedule 2 of the Remuneration Regulations Contempt Refer to paragraph 17, Schedule 2 of the Remuneration Regulations Alleged Breach of Crown Court Order Refer to paragraph 18, Schedule 2 of the Remuneration Regulations Cracked before retrial Preparation for a re-trial has started but re- trial does not commence Page 82 of 117 Retrial Preparation for a re-trial has been completed and a re-trial has taken place Up to and including the first hearing at which pleas are entered (PTPH or FCMH) transfer (org) What the original solicitor is paid where the defendant transfers to a new solicitor up to and including the PCMH. Up to and including the first hearing at which pleas are entered (PTPH or FCMH) transfer (new) - Guilty Plea What the new solicitor is paid where the defendant transfers to them from an original solicitor and a case is a guilty plea Up to and including first hearing at which pleas are entered (PTPH or FCMH) transfer (new) - Cracked What the new solicitor is paid where the defendant transfers to them from an original solicitor and a case is a ―cracked trial Up to and including first hearing at which pleas are entered (PTPH or FCMH) transfer (new) - Trial What the new solicitor is paid where the defendant transfers to them from an original solicitor and a case is a ―trial Before trial transfer (org) What the original solicitor is paid where the defendant transfers to a new solicitor after the first hearing at which pleas are entered (PTPH or FCMH)and before a trial has commenced. Before trial transfer (new) - Cracked What the new solicitor is paid where the defendant transfers to them from the original solicitor and the case is a ―cracked trial Before trial transfer (new) - Trial What the new solicitor is paid where the defendant transfers to them from the original solicitor and the case is a ―trial During trial transfer (org) - Trial What the original solicitor is paid up to the day before the transfer of the defendant to the new solicitor, during ―trial. During trial transfer (new) - Trial What the new solicitor is paid after s/he has taken over the case from the original solicitor and has claimed for the full ―trial. Transfer after trial or guilty plea and before sentencing hearing (original) What the original litigator is paid where the Page 85 of 117 Where the substantive proceedings have a representation order dated on or N/A after 14 January 2008, and the original litigator represents the client named on the representation order, a fee cannot be claimed. Where the substantive proceedings have a representation order dated on or £85.11 after 14 January 2008, and a new litigator represents the client named on the representation order, a fee may be claimed. Crown Court Order Vary/discharge an order made under Fixed Fee hearing subsequent to sentence under LGFS where an £155.32 S155 of the Powers of Criminal application is made within 28 days of the date of the original order Courts (Sentencing) Act 2 0 0 0 (alteration of Crown Court sentence) Review of Sentence Review of sentence made under S74 Fixed Fee hearing subsequent to sentence under LGFS where the £155.32 of the Serious Organised Crime and defendant assists the prosecution and has his/her sentence reduced Police Act 2005 (assistance by defendant: review of sentence) Page 86 of 117 Crown Court Order Vary/discharge of a Crown Court No funding under LGFS N/A Order (Community Sentence Order) This is covered within the original representation order and there is no separate fee available. If a new firm under take this work on or after 14 July Excluding those under S.155 or S.74 2010, free standing Advocacy Assistance in the Crown Court under the Crime which are dealt with above Contract is available. If a new firm undertook this work prior to 14 July 2010, no funding available under any scheme. Crown Court Order Appeal against a Crown Court Order Appeal to the Court of Appeal (Criminal Division) and if permission granted, a N/A (sentence imposed by Crown court) representation order can be granted by the Court of Appeal Restraining Order Vary/discharge/appeal/revoke a No funding available under the LGFS, but would fall within the scope of CDS N/A restraining order made under s 5 of so fundable as Advocacy Assistance under the Crime Contract. the Harassment Act 1997 For work commenced prior to 14 July 2010, only the appeal could be dealt with under advocacy assistance, no funding available for the applications to vary/discharge/revoke the order Page 87 of 117 Restraining Order on acquittal Vary/discharge/appeal/revoke No funding under LGFS, but these orders are prescribed as criminal N/A Restraining orders on acquittal only proceedings and so are fundable under Advocacy Assistance under the under 5A of the Protection from Crime Contract. Harassment Act 1997 For work commenced prior to 14 July 2010, only the appeal could be dealt with under advocacy assistance, no funding available for the applications to vary/discharge/revoke the order ASBO Breach of Breach of an ASBO, whether made by the Magistrates or Crown Court is a N/A - Anti-Social Behaviour orders criminal offence and gives rise to new proceedings in which a representation - Closure Orders order may be granted. - Football Bannning orders Parenting Orders Litigators claim for the work carried out as normal e.g. guilty plea, committal - Sex Offender Prevention Orders. for sentence etc. -Any other order made in proceedings listed under reg 3(2) of the CDS General 2 Regs 2001 Page 90 of 117 R v Jones (2000) A preparatory hearing heard under s.29 of the Criminal Procedure and Investigations Act is deemed to be the start of a trial irrespective of whether the preparatory hearing is heard immediately before the trial or at an interval of some months before. R v Mohammed (2001) Adjourning a PDH to allow the prosecution time to decide whether or not to proceed with the case will not qualify for a cracked trial fee. For a cracked trial fee to be payable there would need to be a real possibility of a trial marked by either the judge fixing a date or ordering it be placed in a warned list. R v Pelepenko (2002) A cracked trial fee can only be paid after an abortive trial, where the prosecution have confirmed that they are proceeding to another trial, and the case subsequently cracks. R. v. Nettleton (2012) Despite there being a gap of more than one day after the first jury was discharged, this case should be paid as one trial because it was all part of the same trial process and no further preparatory work was required before the case recommenced. R. v Cato (2012) The length of the delay does not necessarily mean there has been a retrial. For a retrial to take place the trial must have run its course and an order for retrial must be made. R. v Forsyth (2010). In order for a trial to be considered a retrial there must be an order for a new trial or the trial must have run its course without the jury reaching its verdict. R. v. Sturdy (1998). Only pages forming part of the committal documents or a notice of additional evidence can be included in the page count. R. v. El Treki (2001). Page count Title pages and separator pages should not be counted. Travel expenses: Where there is a local bar which would have been able to represent the client travel expenses are not payable because it is not necessary for the representing counsel to travel. Page 91 of 117 R. v Brazier (1998). The tapes were themselves exhibits and formed part of the committal documents and therefore counsel was entitled to be paid for extra pages. R. v Hackett and Kavaliauskas (2010). 1.PPE: Where electronic evidence is subsequently served on the court as paper evidence this will fall within the definition of PPE. 2. Multiple defendants: Where there is a case involving multiple defendants, which involves only one indictment there is only one case and the correct fee to be paid is the appropriate fee for the trial plus an uplift for further defendants represented. R. v Ward (2012). For documents to be included in the PPE page count they must form part of the committal bundle or served prosecution documents. The documents must be served by the prosecution and documents served electronically and intended for use in electronic format must be paid as special preparation. R. v Rigelsford (2005). Where prosecution only relies on a sample of evidence available, payment can only be paid for that which is formally admitted. R. v. Sales (2007). A letter from the prosecution to the defence (and a copy given to court) confirming the status of pages served as being used as evidence is a sufficient form of notice of additional evidence and consequently the pages can be included in the page count for the purposes of calculating the correct graduated fee. R. v Uddin (2010). Time spent watching CCTV/DVD footage is included within the initial fee. Moving images cannot be paid as special preparation (and do not count as pages) unless they were intended to be converted into still images. The Lord Chancellor v McLarty and Co. (2011). A special preparation fee is not payable for listening to audio-visual tapes as these are specifically excluded from the 2007 funding order. The payment for this work is included within the initial fee. Page 92 of 117 R. v Debenham (2012). PPE must mean pages of prosecution evidence served on the court during the course of the proceedings against the assisted person. R. v McCall (2011) Bad character evidence cannot be included in the page count unless a notice of additional evidence was included, as distinct from a notice to introduce such evidence. R. v Griffiths (Rogerson Galvin) (2010). The evidential burden falls on the appellant to demonstrate the page count conclusively and the judge’s decision must be based on the material available when making that decision. R. v. Gemeskel (1998). The first day of the main hearing is the date at which the guilty plea was entered. R. v. Holden (2010). Paragraph 2(4) of the regulations only applies where a Newton hearing takes place following a case on indictment. Where there is no indictment the paragraph cannot apply and there is no other provision in the schedule that would allow for the payment of a graduated fee, accordingly only a fixed fee is payable in such a situation. R. v Riddell (1998) Where the Newton Hearing does not take place, counsel is not entitled to payment as if it had taken place. R. v. Hunter-Brown (2001) A Newton hearing can only apply where evidence has been called. R. v. Ayres (2002). If a case is prepared for a Newton hearing and does not proceed on the day listed then a "trial not proceeded" fee is payable. The Lord Chancellor v Taylor (R v Beecham) (1999). A change of plea from not guilty to guilty between PDHs need not attract a cracked trial fee. R. v. Baxter (2000). A cracked trial fee is only payable if the cracked trial takes place at a later date than the PDH and not on the same day. If a change of plea takes place on the same day only a guilty plea can be paid. R. v. Maynard (1999) A claim cannot be made for a cracked trial fee once a jury is sworn even where a change of plea to guilty is made after prosecution has opened on the first day. Page 95 of 117 R. v. Fairhurst (1999). A case is not heard concurrently where the pleas for the different indictments are entered on separate occasions, therefore the advocate should be paid separate fees. R. v Gleeson (2011) 1. Retrial: There is no retrial where the subsequent trial is not on the same issue as the previous trial. This should therefore be paid separately. 2. PPE: Recordings of interviews with victims and transcripts of those interviews do not fall within the list in paragraph 1(2) of the Funding Order and are not considered PPE. R. v Greenwood (2010). The correct fee to be paid to the original litigator is the number of pages served up the point of transfer. R. v Brandon (2011) For the purpose of determining a special preparation fee it is not appropriate to use a "time per page" calculation. Instead, the amount of time considered reasonable to consider the evidence should be allowed. Enhanced rates do not apply to special preparation. R. v. Muoka (2013) Where the representation order has been withdrawn part way through a case, the advocate may claim a standard appearance fee for each day at court that the representation order was in operation. R. v. Moses (2013) For the purposes of payment in relation to a section 16 determination, under the LGFS the conclusion of the case is defined as from the acquittal, sentencing, or where advice on appeal is sought, when that advice is given, or, if relevant, when the appeal is lodged. In such circumstances, it is for the claimant to provide evidence that this circumstance applies and of the relevant dates. R. v. Ali (Keir Monteith) (2013) A confiscation hearing (so called by the court) must take place. There is no requirement for evidence to be called or for a confiscation order to be made. R. v Khan (2013) Where a substantial amount of time has passed between the issuing of the bench warrant and the final determination of the claim (20 months in Ajufo, 22 months in Khan and 2 years in Al-Goni) and there is no realistic prospect of the case Page 96 of 117 continuing then a cracked trial graduated fee is payable. R. v Napper (2014) In this decision, the phrase “any other relevant circumstances” was interpreted as including how important/integral the evidence was to the case and what work was required to consider this evidence. In other words, where there is insufficient evidence to establish that a page would previously have been served in paper form, in considering whether it would be appropriate to include it as a page of prosecution evidence regard should be given as to how important/integral the evidence was to the case and what work was required to consider this evidence. R v Sana (2014) The Costs Judge held that if some electronic evidence is relevant to the case and some is irrelevant to the case, the nature of the document and the circumstances mean that it is not reasonable to treat the irrelevant material as PPE. However, reasonable time spent considering the material could still be the subject of a claim under the special preparation rules. R v Sibanda (2014) The Costs Judge held that if the electronic evidence is not relevant to the case against a particular defendant, the nature of the document and the circumstances mean that it is not reasonable to treat the material as PPE, at least for that defendant. R v Connors (2014) Where there is a trial following by a new trial, the advocate can submit a claim for payment before the second trial and can elect for the trial to have the percentage reduction. R v Jagelo (2016) It was held that it is not possible under the Criminal Legal Aid (Remuneration) Regulations 2013 to pay PPE in excess of 10,000 as part of the graduated fee. Where a judge does indicate that, in his view, a greater number of pages than 10,000 should be paid as PPE, then a claim for work done in respect of that material should be made under the special preparation provisions. R v Gratland (2016) The judgment stated that the Ground Rules Hearing falls within the category of ‘any hearing relating to the question of admissibility as evidence of any material’ on the basis that the hearing is designed both to consider how evidence can be Page 97 of 117 given and the specific lines of questioning that can be put forward. R v Gravette (2016) A mitigation of sentence fee is payable in the rare circumstance where a judge orders that a QC or leading counsel be added to the representation order, after the trial but before the mitigation of sentence hearing, and they provide advocacy only for that hearing. R v Nazir (2013) and R v Starynskyj (2017) It was held that the Special Preparation provision contained in paragraph 17(3)(b) of Schedule 1 (payment for reading pages in excess of 10,000) does not include time taken in compiling schedules, chronologies, etc. R v Adeniran (2015) and R v Elnmendorp (2016) Special Preparation can only be claimed when a graduated fee is payable as stated under Part 2 or Part 3 of the Remuneration Regulations. Remuneration for confiscation proceedings are set out in Part 4, and therefore, Special Preparation cannot be paid for confiscation proceedings. R v Samoon and Baryali (2016) Where the prosecution extracts and serves certain pages from a disc on which they wish to rely, the remaining pages are not considered served pages and not payable as PPE. Lord Chancellor v Edward Hayes LLP and Nick Wrack (2017) It was held that the claim for the entire contents of the disc was justified as a) it was served as a disc, and b) it was important for the defence check all evidence on the disc to understand the context and ensure the accuracy of extrapolated data. However, as a rule the LAA requires that representatives must prove that the material they claim was served as evidence in the case or that it was relevant, providing any justification as to why it is reasonable for it to be allowed as PPE. Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) While unused material is not payable under the fee scheme, there are several principles which should be applied when deciding if in fact the material is unused. Refer to Appendix D for details. R v Jalibahodelezhi (2014) Material should be paid as PPE where it is pivotal to the case and requires same degree of consideration as paper evidence. R v T Mahmood and Z Mahmood (SCCO Ref 149/16;155/16 and 185/16) In cases where a telephone report is served it may be appropriate to subdivide a report into its individual sections and allow only the relevant tabs or sections.