ADVOCATE FEE REMUNERATION SUMMARY OF NEW ARRANGEMENTS WITH EFFECT FROM 1 MARCH 2012

Transcription

1 CROWN PROSECUTION SERVICE ADVOCATE FEE REMUNERATION SUMMARY OF NEW ARRANGEMENTS WITH EFFECT FROM 1 MARCH This paper summarises the revision to the Crown Prosecution Service (CPS) graduated fee scheme (GFS) and Very High Cost Case (VHCC) scheme being implemented with effect from 1 March The revised graduated fee scheme will be know as GFS Scheme C. 3. Rates paid for magistrates courts agent sessions are not being revised. Implementation 4. New revised VHCC rates and GFS Scheme C will apply to new instructions where the advocate is instructed in the case on or after 1 March If a case is returned between advocates the relevant date will be the date that the first advocate in the case was instructed. 5. In the event that a Crown Advocate is instructed initially and the brief returned to a self-employed advocate, or vice versa, the instruction date for the purposes of the fee scheme will be the date the first advocate was instructed. In cases that are initially single advocate cases but become two advocate cases, the relevant date to establish the fee scheme for the case (for both advocates) will be the date the first advocate was instructed. 6. With effect from 1 August 2012 all existing CPS cases will transfer to be remunerated either under GFS Scheme C or new VHCC rates. This means that for GFS type cases any main hearing on or after 1 August 2012 will be remunerated under GFS Scheme C and for VHCC or hourly rate cases any new work undertaken on or after 1 August 2012 will be remunerated at new VHCC rates. 7. From 1 March 2012 all application for an appeal against a fee decision will be refereed to the Appeal Committee The Revised GFS Scheme C 8. The detail of the revised GFS Scheme C is contained in the attached GFS Manual of Guidance, Scheme C. 9. A summary of the high-level changes to GFS is listed in this paper for convenience but any detailed analysis of Scheme C should be taken from the Manual of Guidance. 10. The major adjustments to the structure of GFS can be summarised as follows: CPS Remuneration Arrangements Advocates Fees 1 of 10

2 1. Standard or Enhanced Fees There is a fundamental change to the calculation of main hearing fees. The mechanism whereby the evidence uplift is calculated by a precise page count has been removed. Main hearing fees will be calculated according to a page threshold as either a standard or enhanced fee. Each case type, offence category and advocate type has a page cut-off point which determines the appropriate fee. Witness uplifts (excluding the first ten witnesses) will be paid in all main hearings attracting a full main hearing fee for trial and cracked trial outcomes. Historically, one of the building blocks of a GFS fee has been the number of pages of served prosecution evidence but it is often difficult to agree the exact page count. This is the predominate cause of disagreement on fees between advocates and the CPS. Too much effort is currently being spent on capturing, checking and challenging page count calculations. A fee payment process where every page attracts a fee can lead to tensions between the prosecution advocate and the CPS. This can be an unhelpful distraction when the focus of both the advocate and CPS should be on prosecuting cases by serving only that material deemed necessary for an effective and efficient prosecution. Under Scheme C there will be two bands of main hearing fee for each offence group (by advocate), a standard fee and an enhanced fee. The standard fee, capturing about 95% of cases, will be payable for all cases up to a page threshold, regardless of the precise page count. The enhanced fee, capturing about the top 5% of cases, will be payable for all evidence heavy GFS cases over the threshold, again regardless of the precise page count. The page count will still need to be maintained but it will only be used for prosecution purposes to determine whether the threshold between the standard and enhanced fee has been met. 2. Cracked Trial Fee Cracked trials will attract a fee equivalent to 100% of the trial fee, with the caveat that only one cracked trial fee will be paid where the evidence is derived from a single core bundle of evidence. Subsequent cracked trials in the case will be remunerated by way of the effective trial daily attendance fee. The new arrangement will simplify the calculation of cracked trials and CPS Remuneration Arrangements Advocates Fees 2 of 10

3 consistently align the substantive cracked trial fee to the trial fee. Under the current terms of Scheme B the advocate is paid a cracked trial fee depending upon the time period when the case cracks (the time is divided into thirds). The elected cracked trial main hearing fee includes an evidence uplift and witness uplift (based on page and witness count) but each unelected cracked trial event attracts the base fee only, excluding the evidence and witness uplift. Under Scheme C, in cases with multiple cracked trial outcomes, the advocate will be paid a cracked trial fee, equivalent to the trial fee for one cracked trial in a case and each subsequent cracked trial will attract the daily attendance fee only. The new approach will avoid the complex three thirds calculation and will provide a cracked trial fee aligned to, but not exceeding the trial fee. The new arrangement will provide greater certainty and predictability of fee payment when a case is listed for trial. It will also lessen the risk of disproportionate payments in multi-handed cases where there are multiple outcomes arising from a single core bundle of evidence. 3. Guilty Plea Fee Guilty pleas will attract a fee equivalent to 45% of the effective trial fee. The new arrangements will simplify the calculation of guilty plea fees and provide a substantive guilty plea fee which is consistently aligned to the trial fee by a fixed percentage calculation. 4. Two-day Trial Fee The effective trial fee will to cover the first two days of the trial, with the daily attendance fee becoming payable from day three. The two-day trial fee is a feature of the defence RAGFS and this proposal brings the prosecution and defence schemes into line on this issue. The trial fee spans the first two days of the trial with the daily attendance fee becoming payable from day three onwards. The cracked trial fee is paid at 100% of the two-day trial fee and that fee also spans any associated activity on day two of the trial listing. 5. Interview Tape Fees Interview tape fees will be included within the base fee. CPS Remuneration Arrangements Advocates Fees 3 of 10

4 The value of payments for considering routine taped interview material has been included within the base fee i.e. viewing or listening to video or audio tapes of defendant interviews, evidence in chief of prosecution witnesses and 999 calls. It follows that there will be no separate payment for these items of work. This amendment will simplify the operation of the Scheme and bring it into line with RAGFS on this issue. The base fees have been calculated to include the average cost of these items of work. 6. Daily Attendance Fee A simplified daily attendance fee will be paid to replace the existing refresher, length of trial uplift and gradient provisions. The complex calculation of the refresher, length of trial uplift and gradient in trial cases has been simplified and will be replaced by a daily attendance fee. The daily attendance fee is more transparent and predictable than current arrangements. It should be noted that the daily attendance fee rate alters after 40 trial days. The Manual of Guidance has been revised to clarify that only one daily attendance fee will be paid to any individual advocate for any one day and that the advocate must be present at the trial to receive the daily attendance fee. An allowance has been made to deal with the situation where stand-ins are necessarily used.. 7. New Offence Categories J and K New offence Categories will be added to the prosecution scheme, namely category J for rape and serious sexual offences and category K for theft/fraud with a value over 100K. New offence categories for rape and serious sexual offences and for theft/fraud over 100K will be added to the list of offence categories. This will bring the prosecution scheme into line with the defence scheme and will reinforce the importance of rape prosecutions within the fee scheme. CPS Remuneration Arrangements Advocates Fees 4 of 10

5 8. PII material Sensitive material considered by an advocate in relation to a PII application on the instruction of the CPS will be paid by time reasonably spent viewing the material at the GFS hourly rate. Currently the pages of PII are added to the page count to remunerate the advocate. Due to the nature of page count bands in scheme C, this approach would generally result in no additional payment being made. This change is made to ensure that the advocate is remunerated for considering such material. 9. Appeal Committee An Appeal Committee will be established for dispute resolution in GFS cases. The VHCC Appeal Committee process will be adopted for dispute resolution in GFS matters, instead of the current process of referring matters for arbitration to a Costs Judge. Since 2006 disputes between advocates and CPS in Very High Cost Cases have been resolved by a three person Appeal Committee, constituted of a member of CPS, a member of the Bar and a member of the Attorney General s Office. The Appeal Committee considers written submissions from both the advocate and CPS and provides a written ruling. The ruling is not subject to further appeal. The Appeal Committee has been very effective in resolving disputes between advocates and the CPS in VHCC matters in a careful and even-handed way. The significant benefits of the Appeal Committee are that dispute resolution is quicker and less formal than using Costs Judges. The speed of resolution avoids a prolonged period of litigation between the advocate and CPS, minimises conflict, requires no court fee to be paid and ensures that any outstanding fee (subject to dispute) is paid sooner. 11. Incorporating high level changes to GFS also requires a number of associated amendments to be made to the scheme to ensure that it continues to operate effectively and proportionately. A summary of changes incorporated within the Manual of Guidance for Scheme C is listed at annex A. 12. It should be noted that the CPS will continue to pay fixed fee hearings at current rates and will not include any number of fixed fees within the main hearing fee. CPS Remuneration Arrangements Advocates Fees 5 of 10

6 13. In addition to the changes outlined above we propose to undertake further discussions with the Remuneration Committee with a view to standardising the approach to paying electronic material as pages or viewing time by reference to a master schedule, rather than the method of service Table of Fees 14. Tables of fees provide the value of the standard and enhanced base fees by advocate type for effective trials and cracked trials; the page cut-off; additional daily attendance fees (for trials, from day three onwards) and witness uplifts. Witness uplifts (excluding the first 10) will apply to trial and cracked trial outcomes. 15. The Tables of Fees can be found at Annex 2 and Annex 3 of the GFS Manual of Guidance for Scheme C. 16. In order to calculate the total fee for the case two further adjustments will be made to the rates in the tables, namely a case uplift and a defendant uplift. Case uplifts are revised to 10% of the standard or enhanced base fee and the defendant uplift to 5% of the base fee. 17. The revised percentages take into account the increased value of the base fee, now inclusive of evidence uplift, over scheme B. Procure to Pay 18. In addition to fee scheme changes the CPS will be rolling out a new process for paying advocates fees using increased automation through the Procure to Pay (P2P) and Zanzibar applications. This approach has been successfully piloted in Greater Manchester and Hertfordshire and results in payments being made within about 12 days of the conclusion of the case. 19. The Procure to Pay process will be rolled-out to all CPS Areas by mid- 2012/13. Very High Cost Case Scheme 20. VHCC rates will be revised, as follows: CPS Remuneration Arrangements Advocates Fees 6 of 10

7 CURRENT VHCC RATES Hourly rates for preparation Daily rates Other hearings QC / Senior Treasury Counsel Leading Junior Junior alone / Junior Treasury Counsel alone Junior led by QC / STC or First led junior Second Led Junior (1) Second Led Junior (2) Noter PROPOSED VHCC RATES Hourly rates for preparation Daily rates Other hearings QC / Senior Treasury Counsel Leading Junior Junior alone / Junior Treasury Counsel alone Junior Advocate led by QC / STC or First Led Junior Second Led Junior (1) Second Led Junior (2) Noter Crown Prosecution Service 6 January 2012 CPS Remuneration Arrangements Advocates Fees 7 of 10

8 Annex A Summary of Changes to the scheme 1. There is a fundamental change to the calculation of main hearing fees. The mechanism whereby the evidence uplift is calculated by a precise page count has been removed. Main hearing fees will be calculated according to a single page threshold as a standard or enhanced fee. Each case type, offence category and advocate type has a page cut-off point which determines the appropriate fee. Witness uplifts (excluding the first ten witnesses) will be paid in all main hearings attracting a full main hearing fee for trial and cracked trial outcomes. 2. The effective trial main hearing fee is now a fee that covers days one and two of the trial. Therefore, no daily attendance fee is payable for day two of a trial. If a trial lasts only one day the advocate still receives the two-day fee. Daily attendance fees are payable from day three onwards of a trial. 3. Cracked trials will be paid the same main hearing fee as a trial (subject to point 5 below). Therefore, if a trial hearing results in a cracked trial the advocate will receive the same fee as an effective trial lasting up to 2 days. Guilty pleas will now be paid at 45% of the standard or enhanced base fee of a trial. 4. The principle of paying cracked trials according to the third in which they crack has been removed. All cracked trials regardless of when they crack will be paid at the same rate, (subject to point 5 below). 5. Only one cracked trial main hearing fee will be paid where the evidence is derived from a single core bundle of evidence and will be paid as detailed above. The advocate will elect which cracked trial event will be remunerated as a full cracked trial main hearing fee, as per current practice. Unelected cracks in the case will be remunerated by way of an effective trial daily attendance fee. 6. Watching or listening to tapes or discs of defendant interviews, evidence in chief of prosecution witnesses and 999 calls are now included in the base fee and will not be remunerated separately. Any tapes or discs which are served in evidence but which fall outside these categories will be remunerated at the GFS hourly rate appropriate to the advocate and will be based on reasonable time spent. Any claim must be supported CPS Remuneration Arrangements Advocates Fees 8 of 10

9 by detailed work records. 7. Case uplifts are revised to 10%, defendant uplifts to 5% of the standard or enhanced base fee. 8. Fraud category G is amended to cover dishonesty cases with a value of over 30,000 and up to 100,000. Category K is introduced to cover dishonesty with a value over 100,000. The non-aggravated arson category C is similarly raised to 100,000 and category B now covers non-aggravated arson where the value is above 100, A new Category J is introduced for rape and serious sexual offences 10. The current refresher and length of trial uplift and gradient fees have been removed from the scheme and replaced by a unified daily attendance fee which is payable from day 3 of any trial. The fee has two rates, one rate from days 3 to 40 and another from days 41+ of the trial. 11. Fitness to plead proceedings. All cases in which there is a fitness to plead hearing will now be remunerated as effective trials. The length of the fitness to plead hearing will be added to the length of any main hearing on indictment or determination hearing for the purpose of calculating the length of the trial. The change is the removal of ability to elect a cracked trial in certain circumstances. The scheme now formally covers determination hearings. 12. There is no longer a Special Preparation payment for work on pages over 10,000. It will be noted that for some offence types the threshold for the enhanced fee is set at 10,000. All work on larger cases is included in the enhanced base fee. 13. CPS Fees Clerks will no longer have 10% discretion when agreeing a page count. 14. New appeal procedures are proposed, similar to those provisions which have worked successfully for the VHCC scheme. 15. The revised arrangements for fees in confiscation proceedings introduced in August 2009 have now been formally included in the new scheme. This work should now be billed through the GFS system and shown on the GFC. For CPS purposes this work will now need to be paid on a FIST. CPS Remuneration Arrangements Advocates Fees 9 of 10

10 16. In committal for sentence and appeals against conviction or sentence in which an advocate submits a successful application for any preparation to be assessed ex post facto, that preparation will be paid at the GFS hourly rate and the relevant fixed fee will be allowed for court attendance. 17. Bail act offences will no longer be treated as main hearings. A mention fee will be the appropriate fee. 18. The draft Manual of Guidance now states the requirement for advocates to produce work records in relation to all hourly paid work claimed 19. The list of offences has been extended and updated. 20. The multiple defendant/multiple indictment provisions which give the CPS Head of Fees discretion to move certain qualifying GFS cases into the Very High Cost Case scheme will continue but has been changed. Cases for referral by CPS staff now must have 5,000 pages (raised from 2,000). In addition the advocate may apply for a case to be transferred to VHCC if there are more than 15,000 pages. 21. PII material. The payment of sensitive material considered by an advocate in relation to a PII application has changed. The advocate will now be paid at the GFS hourly rate for time reasonably spent viewing the material. The pages will no longer be added to the page count. 22. Electronic material. The guidance contained in the manual of Guidance has been amended. The key change is that material that does not qualify as a page in accordance with the current guidance can never be treated as a page, even if it is subsequently printed off into a paper format. However, any such pages that are printed for use by a jury during an effective trial will be paid. 23. Formal procedures have been introduced for Restraint hearings and the making of Serious Crime prevention orders. Most of these hearings will attract a mention fee. However, in cases where exceptional preparation is necessary, VHCC rates can be used. CPS Remuneration Arrangements Advocates Fees 10 of 10