England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/09/2014

Lord Thomas of Cwmgiedd, CJ:

1. The main issue on this application is whether, when a representation order has been made by this court for leading counsel for an appellant, additional costs incurred on a private basis can be recovered by those acting for the appellant.

Background

2. On 3 April 2012 Shirley Banfield and Lynette Banfield were convicted of the murder of Donald Banfield at the Central Criminal Court. They had earlier pleaded guilty to offences of conspiracy to defraud and forgery and conspiracy to pervert the course of justice. They were sentenced to life imprisonment with a minimum term in the case of Shirley Banfield of 18 years. She also received concurrent sentences totalling 4½ years for the offences to which she had pleaded guilty. At the Crown Court Shirley Banfield was represented under a representation order; that order included the costs of making an application for leave to appeal to the single judge. Both Shirley Banfield and Lynette Banfield sought leave to appeal to this court. On 2 October 2012, the Single Judge refused leave. On 14 May 2013, the Full Court heard a renewed application for leave to appeal; Shirley Banfield was represented by William Clegg QC on a private basis. The Full Court granted leave to appeal and a representation order for Leading Counsel only for the appeal to the court. The court did not make a representation order for solicitors. On 31 July 2013 this court (Rafferty LJ, Simon and Carr JJ) allowed the appeal and quashed the convictions for murder: see [2013] EWCA Crim 1394.

The application under s.16 of the Prosecution of Offences Act 1985

3. After judgment had been handed down Mr Clegg QC made an application under s.16 (4) of the Prosecution of Offences Act 1985 in respect of costs incurred that had not been covered by the representation order granted by the Crown Court and the representation order granted by this Court on 14 May 2013 and for the expenses personally incurred by Shirley Banfield in attending at the trial. No order for costs was made on that date. By order dated 9 October 2013 the question of costs was adjourned by the court for the appellant's solicitors to lodge a written application setting out the type of costs and the amount claimed, as per Criminal Procedure Rule 76.4(4) (b) and (c), by no later than 23 October 2013.

The application for costs

4. As eventually served, the application for costs was for four separate items:

i) Disbursements in a small amount incurred prior to the refusal of the application for leave by the Single Judge. The solicitor was covered by the Crown Court representation order.

ii) The expenses incurred by Shirley Banfield personally in connection with attending trial

iii) Private costs and disbursements incurred by solicitor and counsel when there was no representation order in place between the initial refusal of leave by the Single Judge on 2 October 2012 and the grant by the Full Court of leave on 14 May 2013, including the fees of Mr Clegg QC on the renewed application.

iv) Private costs and disbursements incurred by the solicitor after 15 May 2013, as no representation order was made for the Full Court for anyone other than Leading Counsel; the work done included attendances on Shirley Banfield in person in prison, by phone and by letter, correspondence and attendance at the Court of Appeal on the hearing of the appeal.

5. At a hearing on 5 February 2014, an order was made in respect of Shirley Banfield's reasonable expenses of attending the trial. The claim for disbursements in the small amount was withdrawn. The other parts of the application were adjourned.

The relevant legislative and contractual background.

6. Under s.16 of the 1985 Act, the court is given broad powers to make a defendant's costs order in favour of an accused in various circumstances, including the allowing of an appeal against conviction. S.16(6) provides:

"A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings."

7. However the right of a legal representative in whose favour a legal aid representation order has been made to seek to recover costs is restricted by provisions governing the grant of the representation order.

i) S.22(2) of the Access to Justice Act 1999 contains a general provision preventing a person who provides legal aid from taking other payments:

"A person who provides services funded by the Commission as part of the Community Legal Service or Criminal Defence Service shall not take any payment in respect of the services apart from—

(a) that made by way of that funding, and

(b) any authorised by the Commission to be taken."

ii) S.28(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out a similar provision in materially the same terms.

iii) These provisions are subject to elaboration in Article 11 of the Criminal Defence Service (Funding) Order 2007 (the 2007 Order) which provides:

"Payments from other sources

11.  Where a representation order has been made in respect of any proceedings, the representative, whether acting under a representation order or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made—

(a) by the Lord Chancellor or the Commission; or

(b) in respect of any expenses or fees incurred in—

(i) preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii) obtaining any transcripts or recordings,

where an application under CDS Regulations for an authority to incur such fees or expenses has been refused by a committee appointed under arrangements made by the Commission to deal with, amongst other things, appeals of, or review of, assessment of costs."

The definitions in Article 2 of the Order define an "advocate" as a barrister or solicitor advocate or a solicitor who is exercising automatic rights of audience in the Crown Court, and "representative" as a litigator or an advocate, including where appropriate an instructed advocate. A "litigator" is defined as "the person named on the representation order as representing an assisted person, being a solicitor, firm of solicitors or other appropriately qualified person." The instructed advocate is defined as:

""instructed advocate" means

(a) where a representation order provides for a single advocate, the first barrister or solicitor advocate instructed in the case, who has primary responsibility for the case; or

(b) where a representation order provides for more than one advocate, each of—

(i) the leading instructed advocate; and

(ii) the led instructed advocate;"

Provisions to similar effect were previously contained in Regulation 55 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 and Regulation 22 of the Criminal Defence Service (General) (No 2) Regulations 2001 and the amendment to those Regulations made in 2004.

iv) The Criminal Legal Aid (Remuneration) Regulations 2013 (which came into force on 1 April 2013) (the 2013 Regulations) makes similar provision to Article 11 of the 2011 Order by Regulation 9:

"Payments from other sources

9.  Where representation is provided in respect of any proceedings, the representative, whether acting pursuant to a section 16 determination or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made—

(a) by the Lord Chancellor; or

(b) in respect of any expenses or fees incurred in—

(i) preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii) obtaining any transcripts or recordings,

where an application under regulation 13 for an authority to incur such fees or expenses has been refused by a committee appointed under arrangements made by the Lord Chancellor to deal with, amongst other things, appeals of, or review of, assessment of costs."

"Representative" is defined as a "litigator or an advocate including where appropriate, an instructed advocate". The other relevant definitions are in the same or materially the same terms as those in the 2007 Regulations.

v) In addition to these statutory provisions, the Legal Aid Agency Standard Crime Contract issued in 2010 and current at the time contains further restrictions. Paragraph 8.50 of that contract prohibits charging a fee to a client for the services provided under the Crime Contract or to seek reimbursement from a client in any way. An exception is provided by paragraph 8.52 which enables a client to pay on a private basis for certain work where prior authority for costs to be incurred has been refused. The exceptions extend to obtaining expert reports, transcripts and instructing counsel except where an individual is entitled to counsel (as may be determined by the court in accordance with regulations 16 and 17 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013).

The claims made

(a) The claim for the costs incurred by the solicitors after the making of the Representation Order

8. It has been a long established principle that where a defendant in criminal proceedings is funded by a representation order, those acting for him cannot seek payment on a private basis for work done in relation to those proceedings. In R v Grant [2006] 1 Costs LR 173 Costs Judge Gordon-Saker observed in respect of the regulations which were the predecessor regulations to Article 11 of the 2007 Order that the purpose of the Regulation was to prevent lawyers charging for work done in relation to proceedings for which there was a representation order; there had been a similar long standing provision in respect of civil legal aid. This court referred in R v Gittins and Khan [2007] EWCA Crim 806 to the principle that private and public funding could not co-exist. A similar conclusion was reached under the 2007 Regulations in R v McCatty [2013] 5 Costs LR 863.
9. We have considered the issue afresh in the light of the submissions presented to us that Article 11 of the 2007 Order and Regulation 9 of the 2013 Regulations permitted what was described as "topping up"; as the representation order made by the Full Court did not name the solicitor, topping up was permitted, as the solicitor was not "a representative" as defined in the 2007 Order of the 2013 Regulations. It was argued that the decision in R v Grant was wrong.
10. It seems to us clear from the terms of both the 2007 Order and 2013 Regulations that where a representation order is made, as it was in this case by the Full Court on 14 May 2013, then no-one representing the defendant is entitled to charge privately for work done, unless that work falls within the exceptions enumerated. In our judgment the words of the Order and the Regulation make that clear, quite apart from the strong policy reasons which underlie the provision. That conclusion is reinforced by the terms of the Standard Crime Contract.
11. It is clear therefore that Shirley Banfield is not entitled to recover any part of the costs for which she has been charged by her solicitors after 14 May 2013.

(b) The costs of making the renewed application

12. It has been clear since the decision of Sachs J on a costs appeal in Broudie v Lord Chancellor (17 May 2000) that the representation order in the Crown Court does not cover a renewed application for leave to appeal. That was not in issue.
13. It was, however contended on the basis of the decision of this court in R v Gittins and Khan, that if the renewed application is privately funded, then the court is entitled to make retrospectively, on terms, a representation order covering the application after the appeal or to make a defendant's costs order.
14. In Gittins & Khan, counsel had represented the appellants on a private basis. The court held that, as the principle that private and public funding could not co-exist only applied after the making of the representation order, there was nothing to prevent a court making a retrospective representation order on terms that all the funds that had been paid privately had been repaid.
15. As the court acknowledged in Gittins & Khan, an alternative would be to make a defendant's costs order in respect of the period between the expiry of the representation order made by the Crown Court after the refusal of leave by the Single Judge on 2 October 2012 and the grant by the Full Court of a representation order on 14 May 2013. There would be no prohibition in relation to the co-existence of private and public funding, as there would have been no public funding for that period.
16. However, in the light of what occurred in R v Hittendra Patel [2012] EWCA Crim 1508, the court will not make a defendant's costs order without full disclosure of the terms on which the defendant agreed to fund representation and a detailed examination of the costs claimed.
17. The court will therefore consider in respect of the period between 2 October 2012 and on 14 May 2013 (1) making either a retrospective representation order on terms which will include proof of repayment of any sums paid by Shirley Banfield in respect of counsel or solicitors or (2) a defendant's costs order.
18. Before deciding whether to make either such order, the court will require full disclosure of the documents evidencing the terms on which Shirley Banfield agreed to pay for her representation and all other matters relating to the terms of the representation. It will also require a detailed explanation as to the reasonableness of the work done and the amounts charged for it.