I shall deal first of all with the amendments to the fees in Magistrates Courts work in a series of bullet points.

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1 Criminal Defence Service (Funding)(Amendment) Order 2011 The most important event of this month, by a measured mile, was the laying before parliament of the Criminal Defence Service (Funding)(Amendment) Order This is an amendment to the 2007 Funding Order and is contained in statutory instrument number 2065 of Those of you wishing to read the Order will find it at This order comes into force on the 3 rd October 2011 and will apply to proceedings in which a representation order is granted on or after the 3 rd October Amongst other things the order amends the payment rates for criminal legal aid work in the Magistrate s Court and also amends certain payment rates for both Litigators and Advocates when dealing with criminal legal aid work in Crown Court proceedings. I shall deal first of all with the amendments to the fees in Magistrates Courts work in a series of bullet points. Where the representation order is granted on or after the 3 rd October 2011 and the case is committed to the Crown Court there will be no payment of a committal for trial fee. As you know, at present, where a matter is committed for trial we are paid vat at the conclusion of the proceedings in the Crown Court and it is claimable on the LF1 as a bolt on to the litigator fee. Such a fee will no longer be payable. The net effect of this amendment is that in all matters triable either way which are going to the Crown Court by way of an election or a direction the hearing in the Magistrates Court dealing with plea before venue/mode of trial and the committal hearing will carry no remuneration at all in the event of the case being committed. How this will affect the way in which we approach these proceedings in the Magistrates Court in the future remains to be seen. It is worth noting at this point that there can be no short form committal proceeding under section 6 (2) of the Magistrates Court Act 1980 where the defendant is unrepresented at the committal stage. Those of you reading the amended Funding Order will note that on page 21 reference is made to Category 3 fees and you might be forgiven for wondering why the Category 3 fee is still there as Category 3 relates purely to committals for trial. My thoughts on the matter are that the Category 3 committal fee is probably claimable where the defendant is discharged at the committal hearing (successful submissions having been made by the defence) or the proceedings are discontinued before the actual committal hearing date is reached. You will see that there has been no change to the fee and that the fees payable and the fee limits are the same as they have always been. Still dealing with the amendments as they relate to Magistrates Court work, an important change is brought about where a case is committed to the Crown Court on the election of a defendant where the Magistrates Court has determined the case to be suitable for summary trial. In these circumstances in the event of a guilty plea being entered on indictment or the

2 trial cracking it would appear that the fee payable to the litigator is a mere 362 (and remember, that the committal fee has been abolished). If that wasn t bad enough the position for the advocate dealing with the case at the Crown Court appears to be even worse in that he or she will receive a fixed sum of just 203. Note that what was said in the last bullet point will not apply on a triable either way matter where proceedings take place at the Crown Court because jurisdiction was declined at the Magistrates Court stage. Remember also that this will never be an issue in the Youth Court because there can be no election, matters can only end up at the Crown Court on the basis that they are serious and grave crimes in which case the jurisdiction will have been declined. Watch out for those youths who whilst being 17 on the occasion of their first experience in the court (and so they are in correct court) become 18 in the youth court on a matter triable either way. In these circumstances there needs to be plea before venue mode of trial in exactly the same way as there would be in the adult court. Remember he s now 18 in the youth court and is to be treated as though he were an adult for plea before venue mode of trial purposes. As you will have gathered thus far most of the news is pretty dreadful but there is an increase in the fee payable where the matter is triable either way and a Category 1 lower standard fee is claimed such fee being increased by 23%. Looking at the amended Funding Order on page 21 you will note that a distinction is drawn, for the first time ever, between a Category 1 either way offence and a Category 1 summary only offence. The 23% increase in fee on the lower standard fee Category 1 case only applies if the matter is either way, if it s summary there has been no change to the fee payable. Exactly the same as the previous bullet point save where the higher standard fee is claimable the increase is 8.3%. For those of you whose offices are in an undesignated area or in a designated area (non London) this does represent a real increase in fees the major drawback for those lawyers in the London designated area is that the London enhanced rates are abolished and the national hourly rates will apply to London as well this will severely impact upon the London lawyers for whom the 23% on the Cat 1 either way lower standard fee and the 8.3% on the Cat 1 either way higher standard fee increase in payments is rendered meaningless. The effect of taking away the enhancements means that in a Category 1 either way offence the result is a 4% decrease in the fee and for a Category 1 summary only offence the decrease is 22%. We will no doubt be having arguments as to whether low value criminal damage or low value damage (aggravated vehicle taking) is summary or triable either way for fee purposes. My view for what it s worth is that they are probably going to be interrupted as summary only offences once the court have taken the view that they can only be tried summarily under section 22 of the Magistrates Court Act That concludes the main changes regarding Magistrates Court work so let me now turn to the amendments to fees when the case is at the Crown Court. Dealing with the litigator changes first On page 9 of the Funding Order we have a reference to schedule 1 part 2 and it is headed table of final fees in cracked trials. This is a litigator table and the fees in that table are 75% of what we are currently paid i.e. a reduction of 25% whenever the trial cracks. Remember the definition if a cracked trial which is essentially a not guilty plea

3 having not been entered at the PCMH and something happening (usually, but not always, by way of an amendment to the plea) before the jury are sworn. If the jury is sworn and then something happens whereby the case is concluded it is treated as a 1 day trial and not a cracked trial. You will note by looking at the table that the Class A fee has been greatly reduced and this is because although Class A will still exist as an offence classification (murder, manslaughter etc.) these will now be paid the same as cases paid under Category J (serious violence). This means that the fee payable on a cracked trial on an A will be 75% of a J. Still with this same table you will note that the fee for G is now exactly the same as the fee for F. This has effectively removed the distinction in fee payments for cases involving offences of dishonesty worth less than 30k and those worth between 30k and 100k, these cases will now attract the same fee which is a Category F fee. Where the dishonesty involved is less than 100k it will be a class F if it s under 30k and a G if it s between 30 and 100 but it matters not as the two fees have become, and I love the way they use this word, harmonised. Offences of dishonesty worth more than 100k will continue to be paid at a higher fee (Category K). Turning now to page 11 of the Funding Order you will see a table headed table of final fees in guilty pleas. This again is a litigator table and, having done the maths, it would seem to me that there has been no change in the fees payable (this being the case I don t quite understand the sentence in the explanatory note at the end of the order which reads in respect of a cracked trial or guilty plea in other cases, the graduated fees are reduced by 25% ). Parts of a Funding Order will always remain a deeply obscure but it seems to me the fees for litigators have been reduced in the event of there being a cracked trial by 25% but there has been no reduction for litigators in the event of a guilty plea. Logically, one would have thought that following the table of final fees in cracked trials for litigators and the table for fees in guilty pleas for litigators there would then be a table in relation to the fees for trials for litigators there is no table in the schedule and the simple reason for there not being such a table is that the fees for litigators in trials on page count, have not been changed. Remember the very important point that the 25% reduction in a cracked trial is the litigator fee that will apply only where the offence is either indictable only and was therefore sent, or proceedings have been transferred or the case was committed for trial in the Crown Court on a direction if the trial cracks and the case is at the Crown Court because it was triable either way and the defendant elected, the fixed fee payable to the litigator is as stated earlier i.e So, if the matter goes to trial at the Crown Court, or is a guilty plea, do we as litigators lose out in any way? Well there are no reductions in our fee save for the fact that we may have lost the committal fee, can never claim an A fee as a higher fee (it s now capped at a J) and can never claim a higher fee as a G (it s now capped as an F fee). We lose out if it s cracks as the page count fees are reduced by 25%.

4 That leaves the amendments to the advocate s fees in relation to matters at the Crown Court and they are as follows. As already mentioned if it s triable either way but the defendant elects Crown Court trial and then either pleads guilty on indictment or it cracks the fee for the advocate would appear to be 203 (see the top of page 4 in the amended Funding Order). As you are probably aware as a result of the Criminal Defence Service (Funding) (Amendment Number 2) Order 2010 which came into force on the 27 th April 2010 the advocates fees were reduced in April 2010 by about 4.5% and then again by about the same amount in April 2011 and they were due to be reduced yet again in April 2012 by roughly the same amount. The net result of the 3 reductions amounted to a drop in fee income for advocates of 13.5% phased over a 2 year period. The Funding Order referred to was Statutory Instruments 1181 of I thought, it seems wrongly, that the position over advocacy rates had therefore been dealt with and would not be revisited until well after April 2012 but I couldn t be more wrong. Before I consider the amendments let me briefly explain how advocates are paid. There are 3 tables from which the advocate takes a fee and they are respectively A, B and C. Table A is the fee payable to the advocate if the defendant pleads guilty or it cracks in the 1st third. Table B is the payment if the case cracks in the 2 nd or 3 rd third and table C for the advocate if the matter proceeds to trial. Just a brief word about cracking in the 1 st third or cracking in the 2 nd or final third. Imagine that a not guilty plea is entered at the PCMH and then the case is listed for trial some 3 months later. That period (whatever it s duration) is divided into 3 distinct parts and in our example if the defendant pleads guilty or the trial cracks in the 1 st third i.e. the 1st month of that 3 month period the advocate takes a fee from table A. should the trial crack in the 2 nd or 3 rd month of that 3 month period the advocate takes a fee from table B. Should the matter go to trial the advocate takes a fee from table C. At the bottom of page 13 in the amended Funding Order is a schedule marked schedule 2 fees and uplifts in trials which crack in the 2 nd or final 3 rd. This as you know is a reference to advocates table B. You can always tell an advocate fee table because it draws a distinction between the fees payable to the various levels of advocate i.e. QC, leading junior, lead junior and junior alone. Having done the maths the advocates fees in the new table B are 89% of today s fees i.e. there, appears to be, if my interpretation is correct, a reduction in the advocates fees for representation orders granted on or after the 3 rd October where the case cracks in the 2 nd or final 3 rd of 11%. Matters are worse for advocates if the case cracks in the 2 nd or final 3 rd where there is a high page count. It s true that the price per page (or evidence uplift as it s referred to by advocates) is reduced by 11% for the first 1000 pages. At present advocates are paid more by way of evidence uplift if the case cracks in the final third rather than the 2 nd third. That distinction appears to have been taken away by the amended Funding Order and it is now irrelevant in terms of the fee payable by way of evidence uplift per page whether it cracks in the 2 nd or final 3 rd. An example will best illustrate the point. Imagine its junior counsel being paid on a class E offence. Pages over 1000 are payable presently at 0.75p per page. Under the amended Funding Order the fee for pages 1000 and beyond is now 22p per page, effectively 29% of the original fee.

5 It s easy to work out the fee reductions you simply take the new fee and divide it by the old fee and that gives you the percentage reduction of the old fee. At the bottom of page 14 of the amended Funding Order is schedule 3 part 1 and it s an advocates table and it s headed table of fees and uplifts. This is the advocate s table C trials table. The fees in this table are less than those payable to advocates on pre 3rd October representation orders and are down by 5%. The figures in this table are the same as the figures that would have been payable to advocates for trials with effect from April In other words, it seems to me that the reductions that were due for advocates in April 2012 for trial cases have been brought forward and will now apply for advocates with rep orders dated on or after 3 rd October Looking at the amended Funding Order at the bottom of page 15 is a schedule marked part 2 table A fees and uplifts in guilty pleas and trials which crack in the 1 st third. The figures in this table are less than the amounts currently paid to advocates and they seem to have done exactly the same with this table as they have done with table C namely the reductions that were due in April 2012 have been brought forward and will now apply for representation orders granted on or after 3 rd October. This bullet point is abit tricky but I shall explain it as best I can. In the new Funding Order on page 17 there is a table headed table B fees and uplifts in trials which crack in the 2 nd or final 3rd. For some while I did not understand the relationship between this table B on the bottom of page 17 and the table on the bottom of page 13, which, although it is not entitled table B, it clearly is table B because it s headed fees and uplifts in trials which crack in the 2 nd or final 3 rd. As mentioned earlier the fees in that table on page 13 are reduced by 11%. The fees in what is essentially the same table on page 17 are reduced yet again and I did not understand why there were effectively 2 table B s in the same document. It then occurred to me that this might be explained by the fact that table B on page 13 deals with the 11% reduction in advocates fees for representation orders granted on or after the 3 rd October this year and the further fee reductions in table B on page 17 must surely relate to those further reductions taking place for advocates (something in the region of 4.5 5% which will take place in April 2012). If you think about it logically we all knew what the reduction in fee for advocates was going to be in relation to table B in June 2012 because those figures had already been published in the Criminal Defence Service(Funding)(Amendment Number 2) Order of 2010 and in that order we were expecting for example the junior alone basic fee on an E to go down to 571 for cases which crack in the 2 nd or final third. The actual fee payable with effect from April 2012 for a junior alone E as a basic fee will be 508 and not 571. If you think about it those fee reduction figures which advocates were expecting in April 2012 regarding cases which crack in the 2 nd or final 3 rd are now rendered meaningless and have had to be replaced by new figures because the same fee i.e. cases which crack in the 2 nd or final 3 rd is being reduced by 11% for rep orders granted on or after 3 rd October 2011 and so the figures in the old Funding Order were too high because they don t take into account (because we didn t know it was going to happen!) the reduction of 11% in those fees. This only relates to table B. The reductions in tables A and C have exactly the same figures in them as the figures in the amended Funding Order, the only thing that s new is that these reductions have been brought forward and will apply to representations orders granted on or after the 3 rd October. (Confusing isn t it! I just hope my interpretation is correct but I m always willing to consider others).

6 It goes without saying that advocates (as well as litigators) take a fee reduction in that a class A is now claimable as a J and a G is claimable as an F. The ancillary payment for sentencing hearings is to be treated as one of the 5 appearances covered within the standard graduated fee. As you know the basic fee for advocates covers the first 2 days of the trial and up to 5 standard appearances. An additional appearance fee would be payable separately for sentencing if that hearing was a 6 th or subsequent standard appearance at the moment the fee payable for such a hearing is 114 and was reduced to that amount in April this year. It will be reduced again to 108 in April 2012 (or possibly October 2011, I think those reductions are due in April 2012 but it s not really clear.) The net result of all this is that where there are fewer than 5 standard appearances there will effectively be no fee payable for the sentencing hearing. Payment for committal for sentencing hearings and appeals from the Magistrates Court still remain as these are fixed fees for stand alone pieces of work rather than bolt-ons to the overall graduated fee, as you know the fixed fee for a litigator on an appeal against conviction is The fixed fee for the litigator on an appeal against sentence is The fixed fee for a litigator on committal for sentence is The fixed fee for the advocate on an appeal against conviction is 137 per day. The fixed fee for the advocate on an appeal against sentence is 114 per day and the fixed for the advocate on a committal for sentence is 137 per day. Clearly at the risk of repetition those fees will all be reduced in, I think rather than October 2011, April 2012.