Criminal Defence Service (Funding) (Amendment No. 3) Order 2001
| Jurisdiction | UK Non-devolved |
| Citation | SI 2001/3341 |
| Year | 2001 |
2001 No. 3341
LEGAL SERVICES COMMISSION, ENGLAND AND WALES
The Criminal Defence Service (Funding) (Amendment No. 3) Order 2001
Made 5th October 2001
Laid before Parliament 5th October 2001
Coming into force 29th October 2001
The Lord Chancellor, in exercise of the powers conferred on him by sections 14(3) and 105 of, and paragraph 9 of Schedule 14 to, the Access to Justice Act 19991, having had regard to the matters specified in section 25(3) and having consulted the General Council of the Bar and the Law Society, makes the following Order:
Citation and commencement
1. This Order may be cited as the Criminal Defence Service (Funding) (Amendment No. 3) Order 2001 and shall come into force on 29th October 2001.
Interpretation
2. In this Order, a reference to an article or a Schedule by number alone is a reference to the article or Schedule so numbered in the Criminal Defence Service (Funding) Order 20012.
Transitional provisions
3.—(1) This Order shall apply only in respect of proceedings in which a representation order is made on or after 29th October 2001.
(2) In respect of all other proceedings the Criminal Defence Service (Funding) Order 2001 shall take effect as if this Order had not been made.
Amendments to the Criminal Defence Service (Funding) Order 2001
4. After article 4 insert—
“4A. The fees referred to in article 4 for work carried out in the magistrates' court shall be assessed and paid at the rate set out in the Contract as appropriate to that category of work.”.
5. In paragraph 7 of Schedule 1:
(a) at the beginning of sub-paragraph (1) insert—
“Subject to sub-paragraph (1A),”;
(b) after sub-paragraph (1) insert—
“1A No claim may be submitted for an interim payment in respect of work for which a graduated fee calculated in accordance with Schedule 4 Part 2 is payable and, if a claim is so submitted, no interim payment shall be allowed in respect of that work.”;
(c) in sub-paragraph (2) insert “relevant” before “qualifying” wherever that word appears; and
(d) for sub-paragraph (3) substitute—
“3 The qualifying period for the purposes of this paragraph shall be:
(a) 20 days for an interim payment allowed under sub-paragraph (2)(a); and
(b) 26 days for an interim payment allowed under sub-paragraph (2)(b) where a case does not qualify for a graduated fee under paragraph 2(2) of Schedule 4,
and a day shall qualify as part of the relevant qualifying period, whether or not the days within the qualifying period are continuous, if the hearing begins at any time on that day.”.
6. In paragraph 12 of Schedule 1:
(a) in sub-paragraph (7) for “sub-paragraph (6)” substitute “sub-paragraph (8)”;
(b) in sub-paragraph (7)(f) for “pursuant to CDS Regulations” substitute “in accordance with sub-paragraphs (10A) and (10B)”;
(c) after sub-paragraph (10) insert—
“10A A judge of the Crown Court shall have power to certify that attendance on the advocate instructed in the proceedings is required for the whole or any part of a hearing and, in deciding whether a case should be so certified, the judge shall have regard to the following factors, in addition to any other factors which he considers to be relevant:
(a) on which days (if any) the attendance of a significant number of defence witnesses is likely to be required;
(b) where the hearing is a trial, the amount of documentary evidence likely to be adduced on behalf of the defence;
(c) the likelihood of the legally assisted person disrupting the proceedings if the advocate were to appear alone;
(d) whether the advocate represents more than one legally assisted person;
(e) on which days (if any) the advocate is likely to require notes of the proceedings to be taken for the proper conduct of the defence.
10B An application for a certificate under sub-paragraph (10A) may be made at or at any time after the pleas and directions hearing or, if there is to be no pleas and directions hearing, at or at any time after the listing of the first hearing of the case; and in either case the application may be made orally or in writing.”; and
(d) delete sub-paragraphs (12) and (13).
7. In paragraph 14 of Schedule 1:
(a) in sub-paragraph (1) after “Subject to” insert—
“sub-paragraph (1A) and”; and”; and
(b) after sub-paragraph (1) insert—
“1A Where a confiscation hearing under section 2 of the Drug Trafficking Act 19943or section 71 of the Criminal Justice Act 19884is to be held more than 28 days after:
(a) the conclusion of the trial to which the representation order relates; or
(b) the entering of a guilty plea
a claim by an advocate for a graduated fee calculated in accordance with Schedule 4 shall be entertained as soon as the trial has concluded or the guilty plea has been entered.”
8. In paragraph 20(1) of Schedule 1:
(a) for paragraph (c)(iii) substitute—
“(iii)
“(iii) an hourly fee under sub-paragraph (a) or (b) of paragraph 19(1) of Schedule 4, paragraph 29 of Schedule 4 or paragraph 30 of Schedule 4”;
(b) at the end of paragraph (c) before “he may apply” insert—
“; or
(d)
(d) an advocate in proceedings in the Crown Court is dissatisfied with the classification, under paragraph 5 of Schedule 4, of an offence not specifically listed in the Table of Offences at the end of Schedule 4 Part 5 but deemed to fall within Class H”; and
(c) after “he may apply to the appropriate officer” insert “to reclassify the offence,”.
9. In paragraph 1 of Schedule 4:
(a) in sub-paragraph (1) in the definition of “preparation”, delete “(b) the first conference with the assisted person;” and “(g) conferences with the assisted person, after the first such conference;”;
(b) in sub-paragraph (2) after “committal” insert “or served prosecution”; and
(c) for sub-paragraph (4) substitute—
“4 A reference to the Table of Offences in this Schedule refers to the Table of Offences at the end of Part 5 and a reference to a Class of Offence in this Schedule refers to the Class in which that offence is listed in the Table of Offences.”.
10. In paragraph 2 of Schedule 4:
(a) in sub-paragraph (1) delete all of the words after “on indictment”;
(b) for sub-paragraph (2) substitute—
“2 This Schedule does not apply to a case which goes to trial where the trial exceeds 25 days, unless it was accepted by the court at the pleas and directions hearing that the trial would not exceed 25 days and the trial did not in fact exceed 30 days.”; and
(c) for sub-paragraph (5) substitute—
“5 Where following a trial an order was made for a new trial and the same trial advocate appeared for an assisted person at both trials then, in respect of the new trial, the trial advocate shall receive a graduated fee calculated in accordance with paragraph 7 except that each of the elements of the formula set out in paragraph 7 shall be reduced by:
(a) forty per cent, where the new trial started within one calendar month of the conclusion of the first trial; and
(b) twenty five per cent, where the new trial did not start within one calendar month of the conclusion of the first trial;
except for the refresher element which shall not be so reduced.
5A Where following a trial an order was made for a new trial and a different trial advocate appeared for the assisted person at each trial then, in respect of each trial, the trial advocate shall receive a graduated fee calculated in accordance with paragraph 7.”.
11. For paragraph 4 of Schedule 4 substitute—
“4. This Schedule does not apply to any case where:
(a) the representation order provides for the services of more than two trial advocates; or
(b) 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 25 days, unless it was accepted by the court at the pleas and directions hearing that the trial would not exceed 25 days and the trial did not in fact exceed 30 days.”.
12. In paragraph 5 of Schedule 4:
(a) delete sub-paragraph (1);
(b) for sub-paragraph (2)(a) substitute—
“(a)
“(a) every indictable offence falls within the Class under which it is listed in the Table of Offences and, subject to sub-paragraph (3) below, indictable offences not specifically so listed shall be deemed to fall within Class H;”;
(c) for sub-paragraph (2)(b) substitute—
“(b)
“(b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 19775, incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 19816, fall within the same Class as the substantive offence to which they relate;”;
(d) after sub-paragraph (2)(e) insert—
“(f)
“(f) where in a case on indictment there is a hearing to determine the question of whether an assisted person is unfit to plead or unfit to stand trial, that hearing falls within the same Class as the indictable offence to which it relates or within Class D, whichever the trial advocate shall elect; and
(g)
(g) where in a case on indictment a restriction order is made under section 41 of the Mental Health Act 19837, the offence falls within Class A, regardless of the Class under which the offence...
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