Citation and commencement

1. These Regulations may be cited as the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No. 2) Regulations 1996 and shall come into force on 1st January 1997.

Interpretation

2. In these Regulations a reference to a regulation or Schedule by number alone means the regulation or Schedule so numbered in the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989(2).

Transitional provisions

3.-(1) Subject to paragraph (2), these Regulations shall apply to work done under a legal aid order made on or after 1st January 1997.

(2) Regulations 4F to 4J, as inserted by these Regulations, shall apply to all proceedings where a claim would become eligible for payment in accordance with the terms of any of those regulations on or after 1st January 1997.

Amendments to the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989

4. In the Arrangement of Regulations:

(a)after the reference to regulation 4E, there shall be inserted the following: -

"4F. Staged payments in long Crown Court cases

4G. Interim payments for attendance at trial and refreshers

4H. Advance payments for early preparation in Crown Court cases

4I. Hardship payments

4J. Computation of final claim";

(b)after the reference to Schedule 2, there shall be inserted the following: -

"3. Fees for advocacy in the Crown Court".

5. In regulation 2(1) the following definition shall be inserted after the definition of "legal executive": -

""pleas and directions hearing" means any hearing which is fixed for the purpose of arraigning any person, unless it has been arranged that if that person pleads not guilty to one or more counts his trial shall follow immediately;".

6. In regulation 3(3), for "counsel or the solicitor" there shall be substituted "any legal representative".

7. After regulation 4E there shall be inserted the following regulations: -

"Staged payments in long Crown Court cases

4F.-(1) A legal representative may submit a claim to the appropriate authority for a staged payment of his fees in relation to criminal proceedings in the Crown Court.

(2) Where a claim is submitted in accordance with the provisions of this regulation, a staged payment shall be allowed where the appropriate authority is satisfied -

(a)that the claim relates to fees for a period of preparation of 100 hours or more, for which the legal representative will, subject to final determination of the costs payable, be entitled to be paid in accordance with these Regulations, and

(b)that the period from committal or transfer for trial (or from the date of the legal aid order, if this is later) to the conclusion of the Crown Court proceedings will be likely to exceed 12 months, having regard amongst other matters to the number of defendants, the anticipated pleas and the weight and complexity of the case.

(3) In this regulation "preparation" means -

(a)all work falling within the definition of "preparation" in paragraph 1(1) of Schedule 3;

(b)attendance at pre-trial reviews and other hearings (other than a pleas and directions hearing) prior to the main hearing;

(c)preparation of applications, statements or notices for the purposes of section 6 or 9(5) of the Criminal Justice Act 1987(3), and

(d)all preparation within the meaning of regulation 6(1)(a) not falling within the preceding sub-paragraphs,

and is limited to preparation done before the commencement of the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).

(4) The amount to be allowed for preparation falling within paragraph (3)(a), (b) or (c) shall be computed by reference to the number of hours of preparation which it appears to the appropriate authority, without prejudice to final determination of the costs payable, has been reasonably done multiplied by the relevant hourly rate namely -

(a)in the case of an authorised advocate who is a Queen's Counsel, the hourly rate for subsidiary fees for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(b)in the case of an authorised advocate instructed as leading junior counsel pursuant to an order made under regulation 48 of the General Regulations, 75 per cent. of the hourly rate for subsidiary fees for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(c)in the case of any other authorised advocate, the hourly rate for subsidiary fees for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II.

(5) The amount to be allowed for preparation falling within paragraph (3)(d) shall be computed by reference to the number of hours of preparation which it appears to the appropriate authority, without prejudice to the final determination of the costs payable, has been reasonably done multiplied by the relevant hourly rate prescribed in Schedule 1 Part I, paragraph 1(1)(b) applicable to the class of work and the grade and office location of the fee-earner.

(6) A claim shall be submitted in such form and manner as the appropriate authority may direct, including such case plan as the appropriate authority may require for the purposes of paragraph (2)(a).

(7) A legal representative may claim further staged payments in accordance with this regulation in respect of further periods of preparation exceeding 100 hours which were not included in an earlier claim.

(8) Regulations 14 to 16 (redetermination etc.) shall not apply to a payment under this regulation.

Interim payment for attendance at trial and refreshers

4G.-(1) A legal representative may submit a claim to the appropriate authority for an interim payment in respect of attendance at court or refreshers where a Crown Court trial lasts for a qualifying period.

(2) Where a claim is submitted in accordance with the provisions of this regulation, an interim payment shall, without prejudice to the final determination of the costs payable, be allowed -

(a)to an authorised litigator, where he or a fee-earner representing him has attended at court on each day of the qualifying period;

(b)to an authorised advocate, where he has done work falling within paragraph 6(2)(b) or (c) of Schedule 3 on each day of the qualifying period.

(3) The qualifying period for the purposes of this regulation shall be 20 days (which need not be continuous), and a day will qualify as part of that period if the hearing begins at any time on that day.

(4) The amount payable in respect of each day which qualifies as part of the qualifying period shall be

(a)in the case of an authorised litigator -

(i)where the hearing begins before and ends after the luncheon adjournment, five times the hourly rate for an articled clerk or fee-earner of equivalent experience attending court where more than one legal representative is assigned as prescribed in Schedule 1 Part I, paragraph l(l)(b);

(ii)where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, two and a half times the hourly rate referred to in (i) above;

(b)in the case of an authorised advocate who is a Queen's Counsel, the maximum amount of the full day refresher fee for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(c)in the case of an authorised advocate instructed as leading junior counsel pursuant to an order made under regulation 48 of the General Regulations, 75 per cent. of the maximum amount of the full day refresher fee for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 2 Part II;

(d)in the case of an authorised advocate retained solely for the purpose of making a note of any hearing, one-half of the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II;

(e)in the case of any other authorised advocate, the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 2 Part II.

(5) A claim for an interim payment may be made in respect of a qualifying period and shall be submitted in such form and manner as the appropriate authority may direct.

(6) Further interim payments under this regulation may be claimed if the trial lasts for further qualifying periods.

(7) Regulations 14 to 16 (redetermination etc.) shall not apply to a payment under this regulation.

Advance payments for early preparation in Crown Court cases

4H.-(1) An advance payment under this regulation shall be payable in respect of every case in the Crown Court in which:

(a)a pleas and directions hearing is held;

(b)on or before the date of the pleas and directions hearing, a legal aid order has been made providing for an authorised advocate to represent the legally assisted person at the trial and a person (referred to in this regulation as "the advocate") has been instructed for that purpose, and

(c)the advocate satisfies the appropriate authority that he has, in his capacity as an advocate, and at least 5 days before the date of the pleas and directions hearing, done work of all the types listed in paragraphs (a) to (d) of the definition of "preparation" in paragraph 1(1) of Schedule 3 (whether or not he also does work of those types afterwards),

unless at the pleas and directions hearing the legally assisted person pleads guilty to all counts or the prosecution declares an intention not to proceed to trial.

(2) Subject to paragraph (3), the amount of the advance payment under this regulation in respect of any such case shall be

(a)£250 where the advocate is a Queen's Counsel;

(b)£170 where the advocate is not a Queen's Counsel, but appears as leader to another advocate;

(c)£100 for any other advocate.

(3) Where the same advocate is instructed in two or more cases which are to be heard concurrently the advance payment shall be the amount specified in paragraph (2) in respect of the first case and one-fifth of that amount in respect of each of the other cases.

(4) In this regulation, a "case" means proceedings against any one legally assisted person on one or more counts of a single indictment.

Hardship payments

4I.-(1) The appropriate authority may allow a hardship payment to a legal representative in the circumstances set out in paragraph (2), subject to the other provisions of this regulation.

(2) Those circumstances are:

(a)the legal representative represents the legally assisted person in proceedings in the Crown Court;

(b)the legal representative applies for such a payment, in such form and manner as the appropriate authority may direct, not less than six months after he was first instructed in those proceedings (or in any related proceedings, if he was instructed in those proceedings earlier than in the proceedings to which the application relates);

(c)the legal representative is not, at the date of the application, entitled to any payment under regulation 4C (interim payments in cases awaiting determination), 4F (staged payments) or 4G (interim payments);

(d)the legal representative is unlikely to receive final payment in respect of the proceedings, as determined under regulation 6 or regulation 9, within the three months following the application for the hardship payment, and

(e)the legal representative satisfies the appropriate authority that, by reason of the circumstance in paragraph (d), he is likely to suffer financial hardship.

(3) Every application for a hardship payment shall be accompanied by such information and documents as the appropriate authority may require as evidence of

(a)the work done by the legal representative in relation to the proceedings up to the date of the application, and

(b)the likelihood of financial hardship.

(4) The amount of any hardship payment shall be in the discretion of the appropriate authority, but shall not exceed such sum as would be reasonable remuneration for the work done by the legal representative in relation to the proceedings up to the date of the application.

(5) No hardship payment shall be made if it appears to the appropriate authority that the sum which would be reasonable remuneration for the legal representative, or the sum required to relieve his financial hardship, is less than £5,000 (excluding any value added tax).

(6) Any hardship payment shall be set off against the remuneration finally payable to the legal representative under regulation 6 or regulation 9.

(7) The question of whether proceedings are related to each other for the purposes of this regulation shall be determined in accordance with regulation 4C(7).

Computation of final claim

4J.-(1) At the conclusion of a case in which one or more payments have been made to a legal representative under regulation 4F, 4G, 4H or 4I, he shall submit a claim under regulation 5 or regulation 8 for the determination of his overall remuneration, whether or not such a claim will result in any payment additional to those already made.

(2) In the determination of the amount payable to a legal representative under regulation 6 or regulation 9, the appropriate authority shall deduct the amount of any advance payment made under regulation 4F, 4G, 4H or 4I in respect of the same case from the amount that would otherwise be payable; and if the amount of the advance payment is greater than the amount that would otherwise be payable, the appropriate authority shall be entitled to recover the amount of the difference, either by way of repayment by the advocate or by way of deduction from any other amount that may be due to him.".

8. Regulation 6 shall be amended as follows: -

(a)at the beginning of paragraph (2A) there shall be inserted the words "Subject to paragraph (2C),";

(b)the following paragraph shall be inserted after paragraph (2B): -

"(2C) In any proceedings in the Crown Court: -

(a)in respect of the classes of work specified in paragraph 6(2) of Schedule 3 (whether or not the proceedings are ones to which that Schedule applies), the appropriate authority shall proceed in accordance with the provisions of regulation 9 as if the fee-earner who did the work had been a barrister;

(b)in respect of all other classes of work, the provisions of this regulation (excluding paragraph (2C)(a)) shall apply.";

(c)in paragraph (3), after "(2B)" there shall be inserted ", (2C)";

(d)in paragraph (6), after "Schedule 1" there shall be inserted "or a graduated or fixed fee is payable under Schedule 3", and after "those Parts" there shall be inserted "or that Schedule".

9. Regulation 7A shall be amended by the addition of the following paragraph after paragraph (5): -

"(6) In this regulation, except in the phrase "solicitor's fees": -

(a)references to a solicitor shall be construed as extending to any authorised litigator as defined by section 119(1) of the Courts and Legal Services Act l990(4);

(b)references to counsel shall be construed as extending to any authorised advocate as defined by section 119(1) of the Courts and Legal Services Act 1990.".

10. Regulation 9 shall be amended as follows: -

(a)the following paragraphs shall be substituted for paragraphs (2) and (3): -

"(2) In any proceedings specified in paragraph 2 or 3 of Schedule 3, the appropriate authority shall allow a graduated or fixed fee calculated in accordance with that Schedule in respect of all such work allowed by it as falls into the classes specified in paragraph 6(2) of that Schedule.

(2A) Where in any proceedings specified in paragraph 2 of Schedule 3, the trial judge makes adverse observations concerning the advocate's conduct of the case, the appropriate authority may reduce any fee which would otherwise be payable in accordance with that Schedule by such proportion as it shall see fit, having first given the advocate the opportunity to make representations about the extent to which the fee should be reduced.

(3) Where it appears to the appropriate authority that the fixed fee allowed by Schedule 3 in respect of any proceedings specified in paragraph 3 of that Schedule would be inappropriate taking into account all the relevant circumstances of the case, it may instead allow fees in accordance with paragraphs (4) and (5) of this regulation.";

(b)in paragraphs (4) and (5), for "standard fee" there shall be substituted "graduated or fixed fee".

11. Regulation 14 shall be amended as follows: -

(a)in paragraph (1)(a), for the words "under regulation 9(2)" there shall be substituted "or graduated or fixed fees allowed under Schedule 3", and the final "or" shall be omitted;

(b)in paragraph (1)(b), for "counsel" there shall be substituted "an authorised advocate in proceedings in the Crown Court", and for the words from "to allow" to the end there shall be substituted "that Schedule 3 does or does not apply to those proceedings or with the calculation of the remuneration payable under that Schedule, or";

(c)after paragraph (1)(b) there shall be inserted the following: -

"(c)an authorised advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow a special preparation fee under paragraph 17 of Schedule 3, or with the number of hours allowed in the calculation of the special preparation fee,".

12. Part I of Schedule 1 shall be amended as follows: -

(a)in paragraphs 1(1)(a) and (b) and 1A, for each occurrence of the words "Attendance at court where counsel assigned" there shall be substituted "Attendance at court where more than one legal representative assigned";

(b)in paragraph 1(1)(b), after "Advocacy" there shall be inserted "(other than in the Crown Court)".

13. Part II of Schedule 1 shall be amended as follows: -

(a)paragraph 4(2)(b) shall be omitted;

(b)in paragraph 4(2)(c), for "counsel" there shall be substituted "more than one legal representative";

(c)in the Table immediately following paragraph 4(3), the entries relating to "advocacy in respect of bail applications" shall be omitted, and for "counsel" there shall be substituted "more than one legal representative";

(d)in paragraph 4(7), the words from "and, where a fee-earner" to the end of the sub-paragraph shall be omitted;

(e)paragraph 4(8)(b) shall be omitted.

14. Part I of Schedule 2 shall be omitted.

15. Part II of Schedule 2 shall be amended as follows: -

(a)the following shall be substituted for paragraph 5: -

"5. Paragraph 24 of Schedule 3 shall apply where counsel's fees are determined in accordance with this Part of this Schedule as it applies where a graduated or fixed fee is allowed in accordance with Schedule 3.";

(b)in Table 1 (following paragraph 5), in the second entry in the right-hand column, for "£98" there shall be substituted "£110".

16. After Schedule 2 there shall be added the new Schedule 3 set out in the Schedule to these Regulations.

Regulation 16

SCHEDULE

Regulations 6(2C), 9(2A)

"SCHEDULE 3FEES FOR ADVOCACY IN THE CROWN COURT

PART IDEFINITIONS AND SCOPE

1.-(1) In this Schedule:

"advocate" means a person instructed in accordance with a legal aid order to represent the legally assisted person at the main hearing in any case;

"case" means proceedings in the Crown Court against any one legally assisted person: -

and a case falling within paragraph (c) shall be treated as a separate case from the proceedings in which the order was made;

"cracked trial" and "guilty plea" have the meanings given in paragraph 9(3), (4) and (5) of this Schedule;

"main hearing" means:

"Newton hearing" means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R. v. Newton(5);

"preparation" means work of any of the following types when done by an advocate:

(2) For the purposes of this Schedule, the number of pages of prosecution evidence shall include all witness statements, documentary and pictorial exhibits and records of interview with the legally assisted person and with other defendants forming part of the committal documents or included in any notice of additional evidence.

(3) In the case of proceedings on indictment in the Crown Court initiated otherwise than by committal for trial, the appropriate authority shall determine the number of pages of prosecution evidence as nearly in accordance with the preceding sub-paragraph as the nature of the case permits.

2.-(1) Subject to the following sub-paragraphs of this paragraph and to paragraph 4, this Schedule applies to every case on indictment in which: -

(a)every count (apart from any count which is withdrawn before the pleas and directions hearing) is for an offence referred to in paragraph 5 below, or

(b)one or more counts is for an offence referred to in paragraph 5 below, and the advocate elects that the remaining counts should be disregarded for the purposes of calculating his remuneration.

(2) This Schedule does not apply to a case which goes to trial where: -

(a)the prosecution evidence exceeds 1,000 pages;

(b)the number of prosecution witnesses exceeds 80, or

(c)it was accepted at the pleas and directions hearing that the trial would exceed 10 days (or 5 days where one of the counts is for an offence falling within Class I), and the trial did not exceed that length by reason only that it came to an end without the jury being required to consider their verdict.

(3) This Schedule does not apply to a guilty plea where: -

(a)the prosecution evidence exceeds 400 pages, or

(b)the number of prosecution witnesses exceeds 80.

(4) This Schedule does not apply to a cracked trial where: -

(a)at the pleas and directions hearing, it was accepted by the court that the trial would exceed 10 days in length (or 5 days where one of the counts is for an offence falling within Class I);

(b)the prosecution evidence exceeds 250 pages, or

(c)the number of prosecution witnesses exceeds 80.

(5) Where following a trial an order was made for a new trial, and the same advocate appeared for a legally assisted person at both trials, this Schedule shall not apply in relation to the remuneration of that advocate for -

(a)the original trial, unless remuneration for that trial has been paid in full prior to the making of the order for a new trial, or

(b)the new trial, in any event.

(6) Where following a case on indictment a Newton hearing takes place -

(a)the case shall for all the purposes of this Schedule be treated as having gone to trial;

(b)the length of the trial shall be taken to be the combined length of the main hearing and of the Newton hearing;

(c)the provisions of this Schedule relating to cracked trials and guilty pleas shall not apply, and

(d)no fee shall be payable under paragraph 15 in respect of that hearing.

(7) A case on indictment which is discontinued at the pleas and directions hearing other than by reason of pleas of guilty being entered shall for all the purposes of this Schedule be treated as a guilty plea.

3. This Schedule also applies to the following proceedings in the Crown Court, subject to paragraph 4: -

(a)an appeal against conviction or sentence;

(b)a sentencing hearing following a committal to the Crown Court for sentence;

(c)proceedings arising out of an alleged breach of an order of the Crown Court (whether or not this Schedule applies to the proceedings in which the order was made).

4. This Schedule does not apply to any case where: -

(a)the legal aid order provides for the services of more than two advocates;

(b)(without prejudice to regulation 55 of the General Regulations) any of the advocate's work in connection with the case is done or remunerated otherwise than under a legal aid order;

(c)a hearing is held to determine the question of whether the legally assisted person is unfit to plead or unfit to be tried;

(d)the case results in a restriction order under section 41 of the Mental Health Act 1983(6), or

(e)the length of the main hearing, or the combined length of the main hearing and of any hearing to which paragraph 2(6), 13 or 14 applies, exceeds 10 days (or 5 days where one of the counts is for an offence falling within Class I).

5.-(1) The offences to which this paragraph refers are: -

(a)those listed in the Table of Offences following paragraph 24 of this Schedule;

(b)conspiracy to commit any of the offences in the Table of Offences, contrary to section 1 of the Criminal Law Act 1977(7);

(c)incitement to commit any of the offences in the Table of Offences;

(d)attempt to commit any of the offences in the Table of Offences, contrary to section 1 of the Criminal Attempts Act 1981(8).

(2) For the purposes of this Schedule: -

(a)every offence within sub-paragraph (l)(a) falls within the Class under which it is listed in the Table of Offences;

(b)every offence within sub-paragraph (l)(b), (c) or (d) falls within the same Class as the substantive offence to which it relates;

(c)where the Table specifies that the Class within which an offence falls depends on whether the value involved exceeds a stated limit, the value shall be presumed not to exceed that limit unless the person claiming remuneration proves otherwise to the satisfaction of the appropriate authority;

(d)where more than one count of an indictment is for an offence in relation to which the Class depends on the value involved, that value shall be taken to be the total value involved in all those offences, so however that where two or more counts relate to the same property the value of that property shall be taken into account once only;

(e)where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry shall include every offence contrary to that statutory provision whether or not the words of description in the entry are apt to cover all such offences.

6.-(1) The classes of work for which a graduated or fixed fee calculated in accordance with the following paragraphs of this Schedule shall be allowed in accordance with regulation 9(2) are those specified in sub-paragraph (2), and the fees for classes of work which are not so specified shall be determined in accordance with regulation 6.

(2) The classes of work specified for the purposes of sub-paragraph (1) are: -

(a)all preparation not falling within paragraph (c) below;

(b)advocacy on the first day of the main hearing;

(c)preparation and advocacy on the second and subsequent days of the main hearing;

(d)appearing at the pleas and directions hearing if any;

(e)appearing at other hearings and applications;

(f)listening to or viewing evidence recorded on tape or video cassette;

(g)attending conferences with expert witnesses.

PART IIGRADUATED FEES FOR TRIALS

7.-(1) The amount of the graduated fee for a single advocate representing one legally assisted person being tried on one indictment in the Crown Court shall be calculated according to the following formula:

(2) In the formula in sub-paragraph (1):

• G is the amount of the graduated fee;

• B is the basic fee specified in paragraph 8 as appropriate to the offence for which the legally assisted person is tried and the category of advocate instructed;

• d is the number of days or parts of a day by which the trial exceeds one day;

• e is the number of pages of prosecution evidence excluding the first 50;

• w is the number of prosecution witnesses excluding the first 10;

• D is the length of trial uplift specified in paragraph 8 as appropriate to the offence for which the legally assisted person is tried and the category of advocate instructed;

• E is the evidence uplift specified in paragraph 8 as appropriate to the offence for which the legally assisted person is tried and the category of advocate instructed;

• W is the witnesses uplift specified in paragraph 8 as appropriate to the offence for which the legally assisted person is tried and the category of advocate instructed;

• R is the refresher specified in paragraph 8 as appropriate to the offence for which the legally assisted person is tried and the category of advocate instructed.

8. For the purposes of paragraph 7 the basic fee, refresher, length of trial uplift, evidence uplift and witnesses uplift appropriate to any offence shall be those specified in the Table below as appropriate to the Class within which that offence falls according to paragraph 5 and the category of advocate instructed.

PART IIIGRADUATED FEES FOR GUILTY PLEAS AND CRACKED TRIALS

9.-(1) The amount of the graduated fee for a single advocate representing one legally assisted person in a guilty plea or cracked trial shall be the basic fee specified in paragraph 10 as appropriate to the offence with which the legally assisted person is charged, the category of advocate instructed and whether the case is a guilty plea or a cracked trial, increased by the evidence uplift.

(2) The evidence uplift shall be calculated as follows:

(a)there shall be no uplift in respect of the first 10 pages;

(b)the uplift set out in the third column of the applicable Table in paragraph 10 shall be payable in respect of each page from the 11th to the 50th;

(c)the uplift set out in the fourth column of the applicable Table in paragraph 10 shall be payable in respect of each page from the 51st to the 100th;

(d)the uplift set out in the fifth column of the applicable Table in paragraph 10 shall be payable in respect of each page from and after the 101st.

(3) A case on indictment in which a pleas and directions hearing takes place is a cracked trial if it fulfils the following conditions:

(a)the matter did not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence, and

(b)(i)in respect of one or more counts to which the legally assisted person pleaded guilty, he did not so plead at the pleas and directions hearing, or

(ii)in respect of one or more counts which were not proceeded with, the prosecution did not, before or at the pleas and directions hearing, declare an intention of not proceeding with them.

(4) A case on indictment in which no pleas and directions hearing takes place is a cracked trial if it was listed for trial but the case was disposed of without a trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence.

(5) A case on indictment is a guilty plea if it was disposed of without a trial because the legally assisted person pleaded guilty to one or more counts and is not a cracked trial.

10. For the purposes of paragraph 9 the basic fee and evidence uplifts appropriate to any offence shall be those specified in the Table below as appropriate to the Class within which that offence falls according to paragraph 5 and the category of advocate instructed.

PART IVFIXED AND HOURLY FEES

11.-(1) The basic fee payable to an advocate for appearing at a pleas and directions hearing or a pre-trial review shall be that set out in the Table following paragraph 21 as appropriate to the category of advocate.

(2) Where the advocate appears at a pleas and directions hearing or a pre-trial review of a case which goes to trial, he shall be entitled to receive the length of trial uplift set out in that Table in respect of each day by which the trial exceeds five days.

(3) The fee payable to a person other than the advocate for attendance at a pleas and directions hearing or pre-trial review shall be that set out in the Table following paragraph 21 as appropriate to the category of person appearing and the type of hearing.

(4) This paragraph does not apply to a pleas and directions hearing which is or forms part of the main hearing in a case.

12.-(1) The fixed fee set out in the Table following paragraph 21 as appropriate to the category of advocate shall be payable where:

(a)the legally assisted person fails to attend any hearing at which the advocate appears;

(b)at that hearing a bench warrant is issued for the arrest of the legally assisted person, and

(c)that warrant is not executed within the three months beginning on the date on which it was issued.

(2) The fixed fee set out in the Table following paragraph 21 as appropriate to the category of advocate shall be payable in respect of each occasion on which the case was listed for trial but did not proceed on the day for which it was listed (other than by reason of an application for postponement by the prosecution or the defence).

13.-(1) This paragraph applies to:

(a)the hearing of an application to stay the indictment or any count on the ground that the proceedings constitute an abuse of the process of the court;

(b)any hearing relating to the question of whether any material should be disclosed by the prosecution to the defence, or by the defence to the prosecution (whether or not any claim to public interest immunity is made);

(c)the hearing of an application under section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965(9) for disclosure of material held by third parties.

(2) Where a hearing to which this paragraph applies is held on any day of the main hearing of a case on indictment, no separate fee shall be payable in respect of attendance at that hearing, but the hearing shall be included in the length of the main hearing for the purpose of calculating remuneration.

(3) Where a hearing to which this paragraph applies is held prior to the first or only day of the main hearing, it shall not be included in the length of the main hearing for the purpose of calculating remuneration, and the advocate shall be remunerated for attendance at such a hearing

(a)in respect of any day where the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the Table following paragraph 21 as appropriate to the category of advocate;

(b)in respect of any day where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in the Table following paragraph 21 as appropriate to the category of advocate.

14.-(1) This paragraph applies to:

(a)a hearing at which the court proceeds under section 2 of the Drug Trafficking Act 1994(10);

(b)a hearing at which the court proceeds under section 71 of the Criminal Justice Act 1988(11).

(2) A hearing to which this paragraph applies shall not be included in the length of the main hearing or of any sentencing hearing for the purpose of calculating remuneration, and the advocate shall be remunerated for attendance at such a hearing.

(a)in respect of any day where the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the Table following paragraph 21 as appropriate to the category of advocate;

(b)in respect of any day where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in the Table following paragraph 21 as appropriate to the category of advocate.

15.-(1) The fee payable to any person for appearing at a hearing to which this paragraph applies shall be that set out in the Table following paragraph 21 as appropriate to the category of person appearing and the circumstances of the hearing.

(2) This paragraph applies to the following hearings: -

(a)a sentencing hearing following a case on indictment to which this Schedule applies, where sentence has been deferred under section 1 of the Powers of Criminal Courts Act 1973(12);

(b)a sentencing hearing following a case on indictment to which this Schedule applies, other than a hearing within paragraph (a) or a sentencing hearing forming part of the main hearing.

16. A fee under this paragraph, of the amount set out in the Table following paragraph 21 as appropriate to the category of person appearing, shall be payable to any person (whether the advocate or not) for appearing in the following hearings in a case on indictment, when not forming part of the main hearing or of a hearing for which a fee is provided elsewhere in this Schedule:

(a)the hearing of a case listed for plea which is adjourned for trial;

(b)any hearing (other than a trial) which is listed but cannot proceed because of the failure of the legally assisted person or a witness to attend, the unavailability of a pre-sentence report or other good reason;

(c)bail and other applications;

(d)the hearing of a case listed for mention only.

17.-(1) Where this paragraph applies, a special preparation fee may be claimed in addition to the graduated fee payable under this Schedule.

(2) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable under this Schedule, it has been necessary for the advocate 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.

(3) The amount of the special preparation fee shall be calculated from the number of hours of preparation in excess of the amount normally done for cases of the same type, using the rates for hourly fees set out in the Table following paragraph 21 as appropriate to the category of advocate.

(4) An advocate claiming a special preparation fee shall supply such information and documents as may be required by the appropriate authority as proof of the unusual nature or novelty of the point of law or factual issue and of the number of hours of preparation.

18.-(1) A wasted preparation fee may be claimed where an advocate instructed in any case to which this paragraph applies is prevented from representing the legally assisted person in the main hearing by any of the following circumstances: -

(a)the advocate is instructed to appear in other proceedings at the same time as the main hearing in the case and has been unable to secure a change of date for either the main hearing or the other proceedings;

(b)the date fixed for the main hearing is changed by the court despite the advocate's objection;

(c)the advocate has withdrawn from the case with the leave of the court because of his professional code of conduct or to avoid embarrassment in the exercise of his profession;

(d)the advocate has been dismissed by his client;

(e)the advocate is obliged to attend at any place by reason of a judicial office held by him or other public duty.

(2) This paragraph applies to every case on indictment to which this Schedule applies provided that -

(a)the case goes to trial, and the trial lasts for five days or more, or

(b)the case is a cracked trial, and the number of pages of prosecution evidence exceeds 150.

(3) The amount of the wasted preparation fee shall be calculated from the number of hours of preparation reasonably carried out by the advocate, using the rates for hourly fees set out in the Table following paragraph 21; but no such fee shall be payable unless the number of hours of preparation is eight or more.

(4) An advocate claiming a wasted preparation fee shall supply such information and documents as may be required by the determining officer as proof of the circumstances in which he was prevented from representing the legally assisted person and of the number of hours of preparation.

19.-(1) The hourly fee set out in the Table following paragraph 21 as appropriate to the category of advocate shall be payable in respect of work of the following types, provided that the advocate satisfies the appropriate authority that the work was reasonably necessary, namely:

(a)attendance by the advocate at conferences with prospective or actual expert witnesses; or

(b)travel to and from a prison for the purpose of attending a conference with the legally assisted person.

(2) In any case on indictment, an advocate shall be entitled to a fee in accordance with the Table following paragraph 21 for the number of periods or parts of a period of 10 minutes of running time of any tape or video cassette or part thereof which he listens to or views as part of the evidence in the case.

20.-(1) Subject to regulation 9(3) and to paragraph 22(2), the remuneration payable to an advocate instructed in any case mentioned in paragraph 3 shall be the fixed fee set out in the Table following paragraph 21.

(2) Where the advocate appears in any case mentioned in paragraph 3 unattended by an authorised litigator or representative, he shall be entitled to the additional fee set out in that Table.

21. The remuneration payable to an authorised advocate retained solely for the purpose of making a note of any hearing shall be the daily fee set out in the Table following this paragraph.

PART VMISCELLANEOUS

22.-(1) Where a legally assisted person is charged with more than one offence on one indictment, the graduated fee payable to the advocate shall be based on whichever of those offences he shall select for the purpose.

(2) Where two or more cases to which this Schedule applies involving the same advocate are heard concurrently (whether involving the same or different legally assisted persons): -

(a)the advocate shall select one case ("the principal case"), which shall be treated for the purposes of remuneration in accordance with the previous paragraphs of this Schedule;

(b)in respect of the main hearing in each of the other cases the advocate shall be paid a fixed fee of one-fifth of: -

(i)the basic fee for the principal case, where that is a case falling within paragraph 2, or

(ii)the fixed fee for the principal case, where that is a case falling within paragraph 3.

(3) Where a person appears at a hearing specified in paragraph 11, 12(2), 13, 14, 15 or 16(a) or (b), forming part of two or more cases involving different legally assisted persons, he shall be paid: -

(a)in respect of the first such case, the fixed fee for that hearing specified in the Table following paragraph 21;

(b)in respect of each of the other cases, one-fifth of that fee.

(4) Subject to sub-paragraphs (1) to (3), where a person appears at a hearing forming part of two or more cases, he shall be paid the fixed fee for that hearing specified in the Table following paragraph 21 in respect of one such case, without any increase in respect of the other cases.

23.-(1) Where in any case on indictment two advocates are instructed to represent the same legally assisted person: -

(a)if the leading advocate is a Queen's Counsel, he shall receive the same graduated fee as if he were appearing alone;

(b)if the leading advocate is not a Queen's Counsel, he shall receive three-quarters of the 5 graduated fee payable to a Queen's Counsel appearing alone;

(c)in either case, the junior advocate shall receive one-half of the graduated fee payable to a Queen's Counsel appearing alone.

(2) Where the legally assisted person is represented by a single advocate and another person charged on the same indictment with an offence falling within the same Class is represented by two advocates, the single advocate shall receive the same graduated fee as if he were appearing as junior to another advocate.

(3) Sub-paragraph (2) shall not apply where the charge which the single advocate is instructed to defend (or where there is more than one such charge, the charge forming the basis of remuneration in accordance with paragraph 22(1)) is for an offence falling within Class A.

24. Where a person is instructed to appear in a court which is not within 40 kilometres of his office or chambers, the appropriate authority may allow an amount for travelling and other expenses incidental to that appearance; provided that the amount shall not be greater than the amount, if any, which would be payable to an advocate from the nearest local Bar or the nearest authorised advocate's office (whichever is the nearer) unless the person instructed to appear can justify his attendance having regard to all the relevant circumstances of the case.

Paragraph 5

TABLE OF OFFENCES

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 by instituting a new system for the payment of graduated fees for advocacy and preparation work on the occasion of a trial or guilty plea in the Crown Court, with fixed fees for appeals to the Crown Court against conviction or sentence and for committals for sentence. The graduated fees vary with the nature of the offence and a number of indicators designed to reflect the complexity of the case, and apply to both barrister and solicitor advocates.

These Regulations further amend the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 by:

(1) introducing staged payments in long Crown Court cases, consisting of one payment for each block of 100 hours' preparation;

(2) introducing interim payments for attendance at trial by solicitors and for counsel's refreshers, consisting of one payment for each period of 20 days' attendance at the trial;

(3) allowing an advance payment of £100 to the advocate (£250 to a Queen's Counsel, £170 to a leading junior) where substantial preparation for the trial has been done five days before the pleas and directions hearing;

(4) introducing hardship payments for legal representatives engaged in a case for six months or more when final payment is not likely to be received within three months and staged, interim and advance payments are not available.