The Criminal Legal Aid (Remuneration) Regulations 2013

PART 6 E+W Miscellaneous

Identity of instructed advocate E+W

25.—(1) Where an instructed advocate is appointed before [F1 the first hearing at which the assisted person enters a plea], the instructed advocate must notify the Court in writing as soon as the appointment is made and, where appropriate, must confirm whether the instructed advocate is the leading instructed advocate or the led instructed advocate.

(2) Where the section 16 determination provides for representation by 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 [F1 the first hearing at which the assisted person enters a plea] is deemed to be the instructed advocate; and

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

(3) Where the section 16 determination provides for representation by a single advocate and no barrister or solicitor advocate attends [F1 the first hearing at which the assisted person enters a plea]—

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

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

(4) Where the section 16 determination provides for representation by 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) [F1 the first hearing at which the assisted person enters a plea]; or

(b) where no leading advocate attends [F1 the first hearing at which the assisted person enters a plea], the next hearing in the case attended by a leading advocate,

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

(5) Where the section 16 determination provides for representation by 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) [F1 the first hearing at which the assisted person enters a plea]; or

(b) where no led advocate attends [F1 the first hearing at which the assisted person enters a plea], the next hearing in the case attended by a led advocate,

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

(6) Where a section 16 determination is amended after [F1 the first hearing at which the assisted person enters a plea] to provide for representation by more than one advocate—

(a) the additional instructed advocate must notify the Court in writing of the additional instructed advocate's appointment within 7 days of the date on which the section 16 determination is amended; and

(b) each instructed advocate must notify the Court whether that instructed advocate 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 is deemed to be an instructed advocate and the Court must record in writing whether that instructed advocate is the leading instructed advocate or the led instructed advocate, as appropriate to the circumstances of the case.

(8) Where—

(a) a case ceases to be a Very High Cost Case (in relation to fees claimed by advocates); and

(b) none of sub-paragraphs (1) to (7) applies,

the instructed advocate must notify the Court in writing of the instructed advocate's appointment within 7 days of the case ceasing to be a Very High Cost Case.

(9) The Court must attach—

(a) any notice received under sub-paragraph (1), (6) or (8); and

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

to the representation order.

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

(a) a date for trial is fixed at or before [F1 the first hearing at which the assisted person enters a plea] and the instructed advocate is unable to conduct the trial due to the instructed advocate's other pre-existing commitments;

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

(c) the instructed advocate is required to withdraw because of his professional code of conduct.

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

(a) immediately notify the court of the withdrawal—

(i) in writing; or

(ii) where the withdrawal takes place at a F2 ... hearing, orally; and

(b) within 7 days of the date of the 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 these Regulations.

(12) This paragraph does not apply to a claim for fees under paragraph 32, 33 or 34.

Textual Amendments

F1 Words in Sch. 1 para. 25 substituted (5.10.2015) by The Civil and Criminal Legal Aid (Amendment) (No.2) Regulations 2015 (S.I. 2015/1678), regs. 1(2)(a), 5(8)(a)

F2 Words in Sch. 1 para. 25(11)(a)(ii) omitted (5.10.2015) by virtue of The Civil and Criminal Legal Aid (Amendment) (No.2) Regulations 2015 (S.I. 2015/1678), regs. 1(2)(a), 5(11)(g)

Payment of fees to instructed advocate E+W

26.—(1) In accordance with regulation 23 the appropriate officer must notify each [F3 trial] advocate of the total fees payable and authorise payment to the [F3 trial] advocate accordingly.

(2) Payment of the fees in accordance with sub-paragraph (1) must be made to each [F3 trial] advocate.

(3) Where the section 16 determination provides for representation by a single advocate, the [F3 trial] advocate is responsible for arranging payment of fees to the [F4 instructed] advocate and any substitute advocate who has undertaken work on the case.

(4) Where there are two [F3 trial] advocates for an assisted person, payment must be made to each [F3 trial] advocate individually, and—

(a) the leading [F3 trial] advocate is responsible for arranging payment of fees to the [F4 instructed] 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 [F3 trial] advocate is responsible for arranging payment of fees to the [F4 instructed] advocate and any substitute advocate who have undertaken work on the case of a type for which a led advocate is responsible.

[F5 (4A) In this paragraph, where the main hearing is a trial, “trial advocate” means an advocate who—

(a) is instructed pursuant to a section 16 determination to represent the assisted person at the trial, and

(b) attends the first day of the trial [F6 , and for this purpose “trial” excludes any cross-examination or re-examination to which paragraph 13A(3) of Schedule 1 applies].]

(5) This paragraph does not apply to a claim for fees under paragraph 32, 33 or 34.

Textual Amendments

F3 Word in Sch. 1 para. 26 substituted (5.5.2015) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2015 (S.I. 2015/882), regs. 1, 2(5)(d) (with reg. 3)

F4 Word in Sch. 1 para. 26 substituted (5.5.2015) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2015 (S.I. 2015/882), regs. 1, 2(16)(d)(i) (with reg. 3)

F5 Sch. 1 para. 26(4A) inserted (5.5.2015) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2015 (S.I. 2015/882), regs. 1, 2(16)(d)(ii) (with reg. 3)

F6 Words in Sch. 1 para. 26(4A)(b) inserted (16.5.2023) by The Criminal Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2023 (S.I. 2023/542), regs. 1(b), 3(3) (with reg. 4)

Additional charges and additional cases E+W

27.—(1) Where an assisted person is charged with more than one offence on one indictment, the fee payable to the trial advocate under this Schedule must 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% of—

[F7 (i) where the principal case is a case on indictment, the basic fee specified in the table following paragraph 5 or, where there is a guilty plea or a cracked trial, the basic fee specified in the tables following [F8 paragraph 7], which corresponds with the band within which the offence concerned falls and the category of the advocate concerned; or]

(ii) the fixed fee for the principal case, where that is a case falling within paragraph 2(1)(b) or paragraph 10.

F9 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where a trial advocate or substitute advocate appears at a hearing specified in paragraph 12, 13, 14, 15 [F10 , 16 or 19A], forming part of two or more cases involving different assisted persons, the trial advocate or substitute advocate must be paid—

(a) in respect of the first such case, the fixed fee for that hearing specified in the table following paragraph 24 [F11 or, where the hearing falls within paragraph 19A(2), the applicable fee specified in Table A following [F12 paragraph 7]]; and

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

(5) Subject to sub-paragraphs (1) to (4), where a trial advocate or substitute advocate appears at a hearing forming part of two or more cases, the trial advocate or substitute advocate must be paid the fixed fee for that hearing specified in the table following paragraph 24 in respect of one such case, without any increase in respect of the other cases.

(6) 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 the trial advocate's right to claim any of the fees set out in the table following paragraph 24 to which the trial advocate would otherwise have been entitled.

Textual Amendments

F7 Sch. 1 para. 27(2)(b)(i) substituted (1.4.2018) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I. 2018/220), regs. 1, 26 (with reg. 34)

F8 Words in Sch. 1 para. 27(2)(b)(i) substituted (17.9.2020) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020/903), regs. 1(2), 4(17)(a) (with reg. 7)

F9 Sch. 1 para. 27(3) omitted (30.9.2022) by virtue of The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2022 (S.I. 2022/848), reg. 1(1), Sch. 1 para. 13 (with reg. 3) (as amended (31.10.2022) by The Criminal Legal Aid (Remuneration) (Amendment) (Amendment) (No. 2) Regulations 2022 (S.I. 2022/1035), regs. 1(1), 2(1)) (which affecting provision is amended so that the increases to certain fees apply to a wider range of cases (23.12.2022) by The Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2022 (S.I. 2022/1267), regs. 1(1), 3, Sch.)

F10 Words in Sch. 1 para. 27(4) substituted (31.12.2018) by The Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2018 (S.I. 2018/1323), regs. 1, 16(a) (with reg. 17)

F11 Words in Sch. 1 para. 27(4)(a) inserted (31.12.2018) by The Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2018 (S.I. 2018/1323), regs. 1, 16(b) (with reg. 17)

F12 Words in Sch. 1 para. 27(4)(a) substituted (17.9.2020) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020/903), regs. 1(2), 4(17)(b) (with reg. 7)

Multiple advocates E+W

28.  Where a section 16 determination provides for representation by three advocates in a case the provisions of this Schedule apply, and the fees payable to the led juniors in accordance with Part 2 or Part 3 are payable to each led junior who is instructed in the case.

Non-local appearances E+W

29.  Where an advocate is instructed to appear in a court which is not within 40 kilometres of the advocate's 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 F13 ... unless the advocate instructed to appear has obtained prior approval under regulation 13 for the incurring of such expenses or can justify the attendance having regard to all the relevant circumstances of the case.

Textual Amendments

F13 Words in Sch. 1 para. 29 omitted (1.4.2018) by virtue of The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I. 2018/220), regs. 1, 27 (with reg. 34)

Trials lasting over 40 days E+W

F14 30.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 Sch. 1 para. 30 omitted (1.4.2018) by virtue of The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I. 2018/220), regs. 1, 28 (with reg. 34)

Assisted person unfit to plead or stand trial E+W

31.  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 M1 (finding that the accused did the act or made the omission charged against him); or

(ii) a [F15 fee calculated in accordance with paragraph 7(b)] 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 [F16 fee calculated in accordance with paragraph 7(a)] as appropriate for representing an assisted person in a guilty plea,

whichever the trial advocate elects.

Textual Amendments

F15 Words in Sch. 1 para. 31(b)(ii) substituted (17.9.2020) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020/903), regs. 1(2), 4(18)(a) (with reg. 7)

F16 Words in Sch. 1 para. 31(c)(ii) substituted (17.9.2020) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020/903), regs. 1(2), 4(18)(b) (with reg. 7)

Marginal Citations

M1 1964 c. 84, as amended by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25) and section 22 of the Domestic Violence Crime and Victims Act 2004 (c. 28).

Cross examination of witness E+W

32.—(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 M2 (defence representation for purposes of cross-examination), the advocate must be paid a graduated fee calculated in accordance with paragraph 4.

(2) For the purposes of this paragraph the daily attendance fee F17 ... is as set out in the table following paragraph [F18 5A] as appropriate to the number of days of attendance at court by the advocate.

Textual Amendments

F17 Word in Sch. 1 para. 32(2) omitted (1.4.2018) by virtue of The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I. 2018/220), regs. 1, 29(a) (with reg. 34)

F18 Word in Sch. 1 para. 32(2) substituted (1.4.2018) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I. 2018/220), regs. 1, 29(b) (with reg. 34)

Marginal Citations

M2 1999 c. 23.

Provision of written or oral advice E+W

33.—(1) Where in any case on indictment an advocate is assigned pursuant to a section 16 determination solely for the purpose of providing written or oral advice, the advocate must be paid for the reasonable number of hours of preparation for that advice using the hourly fee rates for special preparation set out in the table following paragraph 24 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 regulation 28 and the advocate 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 E+W

34.—(1) Where in any case on indictment an advocate is assigned pursuant to a section 16 determination to appear at a sentencing hearing solely for the purpose of applying to the court to mitigate the assisted person's sentence, the advocate must be paid in respect of that appearance the fee specified in the table following paragraph 24 together with a fee calculated from the reasonable number of hours of preparation for that appearance using the hourly fee rates for special preparation set out in the table following paragraph 24 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 regulation 28 and the advocate must supply such information and documents as may be required by the appropriate officer as proof of the number of hours of preparation.