Practice and Procedure

Criminal law: defence costs orders and more

PUBLISHED May 1, 2009

Important provisions in relation to the taxation of defence costs orders, made in the magistrates? court, came into effect on 13 October 2008. All such bills delivered after that date will now be taxed by the appropriate National Taxing Team rather than by the court itself. The taxing team will be that for the court to which the magistrates would normally commit their work for trial.

The court will continue to pay witness costs and expenses for those attending at court. However, disbursements incurred during the preparation of the case will form part of the solicitor?s bill sent to the taxing team.

As well as sending the bill and file, it will be essential that solicitors send the LIBRA reference number from the court computer and a copy of the defence costs order. This is not a document that had previously been issued, but these are now available from the courts.

In a positive change, the bill will be paid to the solicitor rather than to the client direct, unless the solicitor instructs otherwise.

Regrettably, there has been no amendment to the rules on appeals. There remains no straightforward appeal from a decision on taxation of a magistrates? court bill in this jurisdiction, and it will be necessary to bring judicial review proceedings if things have gone badly wrong.

The decision in R v Hayes [2008] 1 Costs LR 186 has been widely misunderstood. It does not in any way affect a client?s entitlement to recover their private costs from central funds in relation to any work carried out by their solicitors prior to the date of a representation order. Indeed, in that case allowance was made for the costs of a solicitor at grade A for all pre-legal aid work. The case merely confirms that once the representation order is in existence, solicitors rates are limited to legal aid rates.

On 6 October 2008 significant amendments were made to the recovery of defence costs regime for clients in receipt of a representation order in the Crown court. There are now clear exemptions for those under 18, those in receipt of passported benefit and those whose income does not exceed ?22,350, who do not have equity in their house in excess of ?100,000, and do not have capital of more than ?3,000.

In addition, a recovery of defence costs orders (RDCO) shall not be made against a funded defendant who appears only in the magistrates? court or in relation to a committal for sentence. This is significant because it means that appeals against sentence are now subject to the recovery of costs regime, and clients should be so advised at the time they are considering such an appeal. The regime has always applied to appeals against conviction. Orders shall continue to be made only in exceptional circumstances where the defendant is acquitted and need not be made if the judge is satisfied that it would not be reasonable to make such an order on the basis of the information and evidence available, or that payment of a RDCO would, owing to the exceptional circumstances of the case, involve undue financial hardship.

It should be noted that legal aid is available in the Crown court for clients who were not eligible in the magistrates? court if they are then committed for sentence, subject to any recovery of defence costs order.

Graduated fees

In assessing the page count, the costs judges have indicated that the Legal Services Commission should accept any reasonable evidence of the number involved. This in particular will include the number accepted by the court when paying the advocate in the same case. Pages count towards the page count even if they are handwritten and are then repeated in typed statements, as long as each of them is produced as evidence or an exhibit (R v Ainsworth [2007] 6 Costs LR 865).

In fixed-fee work (appeals, breach cases and committals for sentence), the commission has agreed to accept the advocate who attends the main hearing as the instructed advocate who will receive the total payment for the advocacy in the case.

There are a number of discretions available under the scheme and it is important that both advocates and litigators take full advantage of them ? thus, where an indictment alleged murder and section 18 of the Offences Against the Person Act 1861 as an alternative, and the Crown decided ahead of trial to proceed only on the GBH which went to trial, the lawyer may select either a cracked trial fee for murder or a trial fee for GBH (R v Harper [2007] Costs LR 862).

In R v Richardson [2008] Costs LR 320, it has been confirmed that where an advocate appears in a magistrates? court because of a breach of bail conditions applicable while the case is under the control of a Crown court, then the advocate?s graduated fee scheme applies. The fee for the plea and case management hearings and for further subsidiary hearings (which includes any bail hearing) is included within the Crown court brief fee. Solicitors should charge ?100 plus VAT, the allowed amount, if they do this work in the lower court on behalf of the instructed advocate.

Mental heath

On 3 November 2008 important provisions of the Mental Health Act 2007 came into force. These amendments to the definition of ?mental disorder? apply to all relevant criminal law provisions of the 2007 act. They therefore include sections 35, 36, 37, 38, 41, 45A 45B and 49.

Mental disorder is now very widely defined, which may be of assistance to criminal law clients, as any disorder or disability of the mind.

However, this is so wide that there are two sets of limitations. A person with learning difficulties should not be considered by reason of that disability alone to be mentally disordered, unless the disability is associated with abnormally aggressive or seriously irresponsible behaviour.

In addition, dependency on alcohol or drugs is not a disability of the mind. However, solicitors will need to be careful to spot where alcoholism or drug addiction have also affected mental ability.

In the Crown court, once a court has decided that the defendant is unfit to plead, careful consideration has to be given to the identification of the lawyers, who will be paid from central funds, who are appointed to represent their client?s interest at the hearing at which it is decided whether they did the act or made the omission (Norman [2008], the Times, 21 August) They should have appropriate knowledge of mental health law.

Anthony Edwards, TV Edwards, London