SCHEDULE 1Advocates’ Graduated Fee Scheme

PART 5Miscellaneous

Identity of instructed advocate

20.—(1) Where an instructed advocate is appointed before the plea and case management hearing, he must notify the Court in writing as soon as he is appointed and, where appropriate, he must confirm whether he is the leading instructed advocate or the led instructed advocate.

(2) Where the representation order provides for a single advocate and no instructed advocate has been notified to the Court in accordance with sub-paragraph (1)—

(a)the barrister or solicitor advocate who attends the plea and case management hearing will be deemed to be the instructed advocate; and

(b)the Court will make a written record of this fact.

(3) Where the representation order provides for a single advocate and no barrister or solicitor advocate attends the plea and case management hearing—

(a)the barrister or solicitor advocate who attends the next hearing in the case will be deemed to be the instructed advocate; and

(b)the Court will make a written record of this fact.

(4) Where the representation order provides for more than one advocate, and no leading instructed advocate has been notified to the Court in accordance with sub-paragraph (1), the leading advocate who attends—

(a)the plea and case management hearing; or

(b)where no leading advocate attends the plea and case management hearing, the next hearing in the case attended by a leading advocate

will be deemed to be the leading instructed advocate, and the Court will make a written record of this fact.

(5) Where the representation order provides for more than one advocate, and no led instructed advocate has been notified to the Court in accordance with sub-paragraph (1), the led advocate who attends—

(a)the plea and case management hearing; or

(b)where no led advocate attends the plea and case management hearing, the next hearing in the case attended by a led advocate

will be deemed to be the led instructed advocate, the Court will make a written record of this fact.

(6) Where a representation order is amended after the plea and case management hearing to provide for more than one advocate—

(a)the additional instructed advocate must notify the Court in writing of his appointment within 7 days of the date on which the representation order is amended; and

(b)each instructed advocate must notify the Court whether he is the leading instructed advocate or the led instructed advocate.

(7) Where no additional instructed advocate has been notified to the Court in accordance with sub-paragraph (6)(a), the advocate who attends the next hearing in the case will be deemed to be an instructed advocate and the Court will record in writing whether he is the leading instructed advocate or the led instructed advocate, as appropriate to the circumstances of the case.

(8) The Court will attach—

(a)any notice received under sub-paragraph (1) or sub-paragraph (6); and

(b)any record made by it under sub-paragraph (2), (3), (4), (5) or (7)

to the representation order.

(9) An instructed advocate must remain as instructed advocate at all times, except where—

(a)a date for trial is fixed at or before the plea and case management hearing and the instructed advocate is unable to conduct the trial due to his other pre-existing commitments;

(b)he is dismissed by the assisted person or the litigator; or

(c)he is required to withdraw because of his professional code of conduct.

(10) Where, in accordance with sub-paragraph (9), an instructed advocate withdraws, he must—

(a)immediately notify the court of his withdrawal—

(i)in writing; or

(ii)where the withdrawal takes place at a plea and case management hearing, orally; and

(b)within 7 days of the date of his withdrawal, notify the court in writing of the identity of a replacement instructed advocate, who must fulfil all the functions of an instructed advocate in accordance with this Order.

(11) This paragraph does not apply to a claim for fees under paragraph 27, 28 or 29.

Payment of fees to instructed advocate

21.—(1) In accordance with article 23 the appropriate officer must notify each instructed advocate of the total fees payable and authorise payment to him accordingly.

(2) Payment of the fees in accordance with sub-paragraph (1) must be made to each instructed advocate.

(3) Where the representation order provides for a single advocate, the instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who has undertaken work on the case.

(4) Where there are two instructed advocates for an assisted person, payment must be made to each instructed advocate individually, and—

(a)the leading instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who have undertaken work on the case of a type for which a leading advocate is responsible; and

(b)the led instructed advocate is responsible for arranging payment of fees to the trial advocate and any substitute advocate who have undertaken work on the case of a type for which a led advocate is responsible.

(5) This paragraph does not apply to a claim for fees under paragraph 27, 28 or 29.

Additional charges and additional cases

22.—(1) Where an assisted person is charged with more than one offence on one indictment, the graduated fee payable to the trial advocate under this Schedule will be based on whichever of those offences the trial advocate selects.

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

(a)the trial advocate must select one case (“the principal case”), which must be treated for the purposes of remuneration in accordance with this Schedule;

(b)in respect of the main hearing in each of the other cases the trial advocate must be paid a fixed fee of 20 per cent of—

(i)the basic fee (B) specified in the Table following paragraph 5 or paragraph 7, as appropriate, for the principal case, where that is a case falling within paragraph 2(1)(a), or

(ii)the fixed fee for the principal case, where that is a case falling within paragraph 2 (1)(b).

(3) Where a trial advocate or substitute advocate appears at a hearing specified in paragraph 9, 10, 11, 12 or 13, forming part of two or more cases involving different assisted persons, he must be paid—

(a)in respect of the first such case, the fixed fee for that hearing specified in the Table following paragraph 19; and

(b)in respect of each of the other cases, 20 per cent of that fee.

(4) Subject to sub-paragraphs (1) to (3), where a trial advocate or substitute advocate appears at a hearing forming part of two or more cases, he must be paid the fixed fee for that hearing specified in the Table following paragraph 19 in respect of one such case, without any increase in respect of the other cases.

(5) Where a trial advocate selects—

(a)one offence, in preference to another offence, under sub-paragraph (1); or

(b)one case as the principal case, in preference to another case, under sub-paragraph (2),

that selection does not affect his right to claim any of the fees set out in the Table following paragraph 19 to which he would otherwise have been entitled.

Multiple advocates

23.—(1) Where a representation order provides for three advocates in a case the provisions of this Schedule will apply, and the fees payable to the led juniors in accordance with Part 2 or Part 3 will be payable to each led junior who is instructed in the case.

(2) Where—

(a)the assisted person is represented by a single trial advocate; and

(b)another person charged on the same indictment with an offence falling within the same class is represented by two trial advocates,

the single trial advocate must be paid the same fee as if he were appearing as junior to another trial advocate.

(3) Sub-paragraph (2) does not apply where the charge which the single trial 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 21(1)) is for an offence falling within Class A.

Non-local appearances

24.  Where an advocate is instructed to appear in a court which is not within 40 kilometres of his office or chambers, the appropriate officer may allow an amount for travelling and other expenses incidental to that appearance, provided that the amount must not be greater than the amount, if any, which would be payable to a trial advocate from the nearest local Bar or the nearest advocate’s office (whichever is the nearer) unless the advocate instructed to appear has obtained prior approval under CDS Regulations for the incurring of such expenses or can justify his attendance having regard to all the relevant circumstances of the case.

Trials lasting over 40 days

25.  Where a trial exceeds 40 days, but is not a Very High Cost Case which is the subject of an individual contract for the provision of funded services, the trial advocate must be paid a fee as set out in the Table following this paragraph, as appropriate to the category of trial advocate and the class of offence, for each day by which the trial exceeds 40 days.

Assisted person unfit to plead or stand trial

26.  Where in any case a hearing is held to determine the question of whether the assisted person is unfit to plead or to stand trial (a “fitness hearing”)—

(a)if a trial on indictment is held, or continues, at any time thereafter, the length of the fitness hearing is included in determining the length of the trial for the calculation of the graduated fee in accordance with Part 2 or Part 3;

(b)if a trial on indictment is not held, or does not continue, thereafter by reason of the assisted person being found unfit to plead or to stand trial, the trial advocate must be paid—

(i)a graduated fee calculated in accordance with paragraph 4 as appropriate to the combined length of—

(aa)the fitness hearing; and

(bb)any hearing under section 4A of the Criminal Procedure (Insanity) Act 1964(1) (finding that the accused did the act or made the omission charged against him); or

(ii)a graduated fee calculated in accordance with paragraph 6 as appropriate for representing an assisted person in a cracked trial,

whichever the trial advocate elects; and

(c)if at any time the assisted person pleads guilty to the indictable offence, the trial advocate must be paid either—

(i)a graduated fee calculated in accordance with paragraph 4 as appropriate to the length of the fitness hearing; or

(ii)a graduated fee calculated in accordance with paragraph 6 as appropriate for representing an assisted person in a guilty plea,

whichever the trial advocate elects.

Cross examination of witness

27.—(1) Where in any case on indictment an advocate is retained solely for the purpose of cross-examining a witness under section 38 of the Youth Justice and Criminal Evidence Act 1999(2) (defence representation for purposes of cross-examination), he must be paid a graduated fee calculated in accordance with paragraph 4.

(2) For the purposes of this paragraph the daily attendance fee (D) is as set out in the Table following paragraph 5 as appropriate to the number of days of attendance at court by the advocate.

Provision of written or oral advice

28.—(1) Where in any case on indictment an advocate is assigned under a representation order solely for the purpose of providing written or oral advice, he will be paid for the reasonable number of hours of preparation for that advice using the rates of hourly fees for special preparation set out in the table following paragraph 19 as appropriate to the category of trial advocate.

(2) An advocate claiming a fee for advice under this paragraph may apply to the appropriate officer to redetermine the fee under article 29 and he must supply such information and documents as may be required by the appropriate officer as proof of the number of hours of preparation.

Mitigation of sentence

29.—(1) Where in any case on indictment an advocate is assigned under a representation order to appear at a sentencing hearing solely for the purpose of applying to the court to mitigate the assisted person’s sentence, he must be paid in respect of that appearance the fee payable under paragraph 12 together with a fee calculated from the reasonable number of hours of preparation for that appearance using the rates of hourly fees for special preparation set out in the table following paragraph 19 as appropriate to the category of trial advocate.

(2) An advocate claiming an hourly preparation fee under this paragraph may apply to the appropriate officer to redetermine such hourly fee under article 29 and he must supply such information and documents as may be required by the appropriate officer as proof of the number of hours of preparation.