The Criminal Defence Service (Funding) Order 2007
| Jurisdiction | UK Non-devolved |
2007 No. 1174
legal services commission, england and wales
The Criminal Defence Service (Funding) Order 2007
Made 3rd April 2007
Laid before Parliament 5th April 2007
Coming into force 30th April 2007
This Order is made in exercise of the powers conferred upon the Lord Chancellor1by sections 14(3), 14(5) and 105 of, and paragraph 9 of Schedule 14 to, the Access to Justice Act 19992.
The Lord Chancellor has had regard to the matters specified in section 25(3) of that Act and has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act.
Accordingly, the Lord Chancellor makes the following Order.
Citation and commencement
1. This Order may be cited as the Criminal Defence Service (Funding) Order 2007 and shall come into force on 30th April 2007.
Interpretation
2. In this Order—
“the Act” means the Access to Justice Act 1999;
“advocate” means a barrister, a solicitor advocate or a solicitor who is exercising their automatic rights of audience in the Crown Court;
“appropriate officer” means—
(a) in the case of proceedings in the civil division of the Court of Appeal, the head of the civil appeals office;
(b) in the case of proceedings in the criminal division of the Court of Appeal, the registrar;
(c) in the case of proceedings in the Crown Court, the Commission;
(d) in respect of advice or assistance as to an appeal from the Crown Court to the Court of Appeal, (except in the case of an appeal under section 9(11) of the Criminal Justice Act 19873(preparatory hearings)) where, on the advice of any representative instructed, notice of appeal is given, or application for leave to appeal is made, whether or not such appeal is later abandoned, the registrar;
(e) in respect of advice or assistance as to an appeal to the Courts-Martial Appeal Court, the registrar;
(f) in respect of advice or assistance as to an appeal from the Court of Appeal to the House of Lords, where the appeal is not lodged with the House of Lords, the registrar; and
(g) in any other case, the Commission,
and, in any case, includes an officer designated by the appropriate officer to act on his behalf for the purposes of this Order;
“assisted person” means a person in receipt of funded services;
“CDS Regulations” means the Criminal Defence Service (General) (No.2) Regulations 20014;
“class 1 offence”, “class 2 offence” and “class 3 offence” have the meanings given in paragraph III.21.1 of the Practice Direction (Criminal Proceedings: Consolidation)5;
“the Commission” means the Legal Services Commission established under section 1 of the Act;
“fee earner” means a litigator, or person employed by a litigator, who undertakes work on a case;
“funded services” means services which are provided directly for an individual and funded for that individual as part of the Criminal Defence Service under sections 12 to 18 of the Act;
“instructed advocate” means
(a) where a representation order provides for a single advocate, the first barrister or solicitor advocate instructed in the case, who has primary responsibility for the case; or
(b) where a representation order provides for more than one advocate, each of—
(i) the leading instructed advocate; and
(ii) the led instructed advocate;
“leading instructed advocate” means the first leading barrister or solicitor advocate instructed in the case, who has primary responsibility for those aspects of a case undertaken by a leading advocate;
“led instructed advocate” means the first led barrister or solicitor advocate instructed in the case, who has primary responsibility for those aspects of the case undertaken by a led advocate;
“litigator” means the person named on the representation order as representing an assisted person, being a solicitor, firm of solicitors or other appropriately qualified person;
“registrar” means the registrar of criminal appeals;
“related proceedings” means—
(a) two or more sets of proceedings involving the same defendant which are prepared, heard or dealt with together; or
(b) proceedings involving more than one defendant which arise out of the same incident, so that the defendants are charged, tried or disposed of together;
“representation order” means a document granting a right to representation;
“representative” means a litigator or an advocate, including, where appropriate, an instructed advocate;
“senior solicitor” means a solicitor who, in the judgement of the appropriate officer, has the skill, knowledge and experience to deal with the most difficult and complex cases;
“solicitor advocate” means a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society;
“solicitor, legal executive or fee earner of equivalent experience” means a solicitor, Fellow of the Institute of Legal Executives or equivalent senior fee earner who, in the judgement of the appropriate officer, has good knowledge and experience of the conduct of criminal cases;
“trainee solicitor or fee earner of equivalent experience” means a trainee solicitor or other fee earner who is not a Fellow of the Institute of Legal Executives, who, in the judgement of the appropriate officer, carries out the routine work on a case; and
“Very High Cost Case” is a Crown Court case where if the case proceeds to trial, that trial would be likely to last for 41 days or longer, and any question as to whether the case fulfils this criterion must be determined by the Commission.
Scope
3.—(1) Article 10 of this Order applies to proceedings in magistrates’ courts only.
(2) Article 12 of this Order applies to proceedings in magistrates’ courts and to proceedings in the Crown Court.
(3) Articles 5, 6, 14 to 24, and 29 to 31 of, and Schedules 1 and 2 to, this Order apply to proceedings in the Crown Court only.
(4) Articles 4, 7, 11, 13, 25 to 28 and 32 of, and Schedule 3 to, this Order apply to proceedings in the Crown Court and to proceedings in the Court of Appeal.
(5) Article 8 of, and Schedule 4 to, this Order apply to proceedings in the Court of Appeal only.
(6) Article 9 of this Order applies to proceedings in the House of Lords only.
(7) For the purpose of this Order any reference to the Court of Appeal includes a reference to—
(a)
(a) the criminal division of the Court of Appeal;
(b)
(b) the civil division of the Court of Appeal;
(c)
(c) the Courts-Martial Appeal Court; and
(d)
(d) a Divisional Court of the High Court.
Funding of Services
4.—(1) Where a representation order is granted on or after 30th April 2007 for proceedings in the Crown Court or Court of Appeal—
(a)
(a) the Commission must fund representation in accordance with its duty under section 14(1) of the Act; and
(b)
(b) the provisions of this Order apply.
(2) Where a representation order is granted on or after 1st April 2003, but before 30th April 2007 for proceedings in the Crown Court or the Court of Appeal—
(a)
(a) the Commission must fund representation in accordance with its duty under section 14(1) of the Act; and
(b)
(b) the provisions of the Criminal Defence Service (Funding) Order 20016apply.
(3) Where a representation order is granted before 1st April 2003 for—
(a)
(a) criminal proceedings in the House of Lords;
(b)
(b) proceedings in the Court of Appeal; or
(c)
(c) proceedings in the Crown Court,
the duty of the Commission under section 14(1) of the Act has effect as a duty of the Lord Chancellor and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.
(4) Where a representation order is granted before 1st April 2003 for—
(a)
(a) any proceedings in the Crown Court which are prescribed under section 12(2)(g) of the Act;
(b)
(b) any Very High Cost Case which is the subject of an individual contract for the provision of funded services; or
(c)
(c) any proceedings in which representation is provided by a person employed by the Commission for that purpose,
the Commission must fund representation in accordance with its duty under section 14(1) of the Act and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.
Claims for fees by advocates – Crown Court
5.—(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to this Order.
(2) A claim for fees under this article and Schedule 1 must be made by each instructed advocate.
(3) Subject to article 32, a claim by an instructed advocate for fees in respect of work done under a representation order must not be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates.
(4) An instructed advocate must submit a claim for fees to the appropriate officer in such form and manner as he may direct.
(5) An instructed advocate must supply such further information and documents as the appropriate officer may require.
(6) Where a confiscation hearing under Part 2 of the Proceeds of Crime Act 20027(Confiscation: England and Wales), section 2 of the Drug Trafficking Act 19948(confiscation orders) or section 71 of the Criminal Justice Act 19889(confiscation orders) is to be held more than 28 days after—
(a)
(a) the conclusion of the trial to which the representation order relates; or
(b)
(b) the entering of a guilty plea,
an instructed advocate may submit any claim for fees in respect of the trial or guilty plea as soon as the trial has concluded or the guilty plea has been entered.
(7) Where a representation order provides for representation by—
(a)
(a) a single advocate other than a QC, and a QC agrees to appear as the single advocate; or
(b)
(b) two or more advocates other than QC, and a QC agrees to appear as a leading junior,
that QC must be treated for all the purposes of this Order as having been instructed under that representation order, and his remuneration must be...
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