By Jeremy Lynn, 15NBS Chambers
As a barrister I have a keen interest in whether my client has Legal Aid: I want to know at the outset whether, and by whom, I am going to get paid. Since the introduction of the Graduated Fee Scheme we are required to submit the Representation Order with our claim. The efficient solicitor always makes a point of sending the Order with the brief, and now that we are in the digital age we should be able to see the Order at Section U on the CCDCS.
As to how much the client is paying for his legal aid by way of contribution, I cannot pretend to have been that interested. Occasionally a client will tell you the enormous sum that he has been paying monthly, and I’m often tempted to remark “if only you could have paid that privately”. But beyond a passing curiosity and occasional horror at the size of them, contributions have not been my concern… until recently.
Who amongst you are aware of The Criminal Legal Aid (Contribution Orders) Regulations 2013?
If you are not, you should be, because they could have a substantial impact on the amount that your client is required to pay.
I discovered them when instructed to make an application relating to “apportionment of costs”. Neither I, nor my instructing solicitor, nor the judge, nor (as the judge told me) any of his colleagues, had ever come across them before, but they have a bearing in any case where the defendant is required to pay for the costs of his representation and has been convicted of one, but not all, offences on the indictment.
In my case I represented a man charged with 19 offences. He was convicted of 5, acquitted of 11, and the jury could not agree on the remainder. He was sent to prison there and then, but a few months after sentence his son received a letter from agents instructed by the LAA pursuing the defendant for some £12,000 by way of a contribution from capital. He had already paid out some £3,000 in monthly contributions from income.
Somebody informed my instructing solicitor of the possibility of apportionment, based on the fact that the defendant had been acquitted of all but 5 of the charges (none of which were alternatives to those of which he was convicted).
The solicitor took it up with the LAA and they advised him to make an application to the trial judge, who asked for the matter to be listed, and so I was instructed and thus made my first acquaintance with The Criminal Legal Aid (Contribution Orders) Regulations 2013. The relevant regulation is reg. 26, set out below:
Assessment by the court of proportion of the cost of representation
26.—(1) This regulation applies where an individual is—
(a)charged with more than one offence; and
(b)convicted of one or more, but not all, such offences.
(2) The individual may apply in writing to the judge for an order that the individual pay a proportion of the amount of the cost of representation in the proceedings in the Crown Court, on the ground that it would be manifestly unreasonable to pay the whole amount.
(3) An application under paragraph (2) must be made within 21 days of the date on which the individual is sentenced or otherwise dealt with for the offence following conviction in the Crown Court.
(4) The judge may—
(a)make an order specifying the proportion of the cost of representation for which the individual is liable; or
(b)refuse the application.
(5) An order under paragraph (4) must not require any other individual to pay any of the cost of the individual’s representation.
(6) In this regulation “judge” means the trial judge or a judge nominated by the resident judge for the purpose of deciding the application.
As you can see the regulation applies where the defendant is charged with more than one offence, and convicted of one or more, but not all, such offences. In those circumstances the judge may order that he pay only a proportion of the cost of representation, if it would be “manifestly unreasonable to pay the whole amount”.
Plainly if a man was charged with s.18 GBH with an alternative of s.20, an application to apportion costs on the basis that he had only been convicted of s.18 would be absurd. The charges are alternatives and he could not have been convicted of both.
But where someone has been charged with a series of offences committed over a period of some years and is acquitted of some but convicted of others, at a different time or of a different nature, then he has a good argument for apportionment.
In my case there had been a retrial, the first trial having been abandoned after the jury had retired, due to an irregularity in the jury room. Here you have an argument that the Defendant should not be liable to pay the costs of the first trial.
The purpose of this article is to draw your attention to reg. 26(3).
The application (in writing) “must be made within 21 days of the date on which the individual is sentenced or otherwise dealt with…”
Note the use of the word “must”. This is a mandatory requirement and permits the judge no discretion to hear an application out of time. Whereas we are all familiar with similar time limits that apply, for example, to the making of Bad Character or Hearsay applications, or to the submission of an appeal against conviction or sentence, all of the rules relating to the making of such applications contain a specific or generalised provision for the making of applications out of time. In those cases The Criminal Procedure Rules or the statute/regulation that allows for the making of the application will contain a power to vary the time limit. By way of example, here is CPR 20.5 relating to Hearsay:
20.5.— Court’s power to vary requirements under this Part
(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally;
(c) dispense with the requirement for notice to introduce hearsay evidence.
(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.
There is no such get out clause under reg. 26, and nor does it fall within the ambit of any more generalised rule in the CPR. In short you either make the application within 21 days of sentence or not at all.
I have spent some time searching – in vain – for an analogous situation, where an appeal court has upheld a Crown Court judge’s decision to waive an apparently mandatory time limit. I was unable to find anything in favour of such a decision, but there are decisions to the contrary. In R. v West London Magistrates’ Court, Ex p. Lamai, 2000 WL 976031 the applicant sought leave to appeal against a refusal of the Crown Court to permit an appeal against a forfeiture order where The Drug Trafficking Act 1994 provides that the appeal should be brought within 30 days of the making of the order. His application was 6 days outside that time.
In refusing leave to appeal the High Court ruled that the Crown Court had no inherent jurisdiction to override a statute that made provision for the application of absolute deadlines.
In practical terms this requires the defendant’s solicitor to be aware that he is liable to pay for the costs of his representation and (assuming a partial acquittal has occurred) to submit the relevant form within 21 days of sentence. The form is available here:
Note that the form reads “An application should be made within 21 days of the date of sentence or Order”, the word “must” in the regulation itself having been replaced with the slightly less insistent “should”.
The form says that “where Judicial Apportionment is granted this form must be submitted to the LAA with form LF1 and AF1”.
There is nothing in the regulation providing for the LAA to respond to, or be present at, the application; the regulation does not specify whether the application is to be considered on paper, or in court. Presumably the judge can deal with it on paper or (as in my case, where there was an issue on timing) set it down for a hearing.
I suppose counsel anticipating a partial victory could have the form ready for service at sentence, if that follows immediately after verdict, or submit it at sentence and invite the judge to deal with it there and then. In such a case, counsel would have to be instructed that the defendant is liable to pay for his legal aid costs.
Alternatively the solicitor – who will after all be aware of his client’s liabilities – needs to ensure that the form is completed and submitted within 21 days of sentence.
For the sake of completeness, but only of interest to solicitors, there is at reg. 39 of The Criminal Legal Aid (Contribution Orders) Regulations 2013 the right to seek a redetermination of a liability to make a payment on grounds that either there has been a miscalculation of income or capital or the costs of representation; or an administrative error; or exceptional hardship.