The Lord Chancellor v Robert Ross
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 05 November 2021 |
| Neutral Citation | [2021] EWHC 2961 (QB) |
| Docket Number | Case No: QA-2021-000029 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2961 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lambert
Case No: QA-2021-000029
Florence Iveson (instructed by Government Legal Department) for the Appellant
In Person: the Respondents
Hearing dates: 2 July 2021 and 21 September 2021
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 1030 on Friday, 5 November 2021.
Introduction
This appeal concerns the correct mechanism for the payment of a legal representative appointed by the court to act in proceedings under s.4A Criminal Procedure (Insanity) Act 1964 (“the CPIA”) following a finding that the defendant is not fit to be tried. On 12 January 2021, Costs Judge Whalan considered appeals brought by four legal representatives of defendants in criminal proceedings who had been instructed by the court in s.4A CPIA proceedings to put the case on behalf of the accused. Costs Judge Whalan determined that payment to the legal representatives in respect of the s.4A proceedings should be from central funds. The Lord Chancellor appeals that decision. It is submitted on his behalf that the decision is wrong and that the correct mechanism for payment is under the Advocates' Graduated Fee Scheme.
This appeal is brought by the Lord Chancellor under regulation 11 of the Costs in Criminal Cases (General) Regulations 1986 which permits an appeal where the Lord Chancellor is “ dissatisfied with the decision of the Costs Judge on appeal under regulation 10”. The appeal lies to the Queen's Bench Division of the High Court. Permission is not required. Part 52 of the CPR applies to the appeal. The High Court has the same powers as the appropriate officer and a Costs Judge under these Regulations and may “ reverse, affirm or amend the decision appealed against or make such other order as the judge thinks fit”.
The Lord Chancellor was represented by Ms Iveson and the respondents represented themselves, although Mr Ross took the lead in submissions before me. I repeat my thanks to all concerned for the clear and focussed way in which their respective arguments were advanced.
The Context: s.4A Proceedings
I start with the relevant statutory context of the proceedings in the Crown Court. S.4 CPIA sets out the procedure by which a determination of an accused person's fitness to be tried is to be made by the court when, during criminal proceedings, an issue arises as to whether the accused is under a disability. If the court determines that the accused person is under a disability and is not therefore fit to stand trial, the jury must determine whether the accused “ did the act or made the omission charged against him as the offence”.
The relevant provisions of the CPIA are:
Criminal Procedure (Insanity) Act 1964
4. Finding of unfitness to plead.
(1) This section applies where on the trial of a person the question arises whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
…
(5) the question of fitness to be tried shall be determined by the court without a jury.
4A Finding that the accused did the act or made the omission charged against him.
(1) This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury –
a. On the evidence (if any) already given in the trial; and
b. On such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was or is to be or was being tried, that he did the act or made the omission charged against him as the offence.
These provisions must be read in conjunction with the Criminal Procedure Rules 2020 which provide at paragraph 25.10(3) that, where the court has determined that the defendant is not fit to be tried:
( a) the court must exercise its power to appoint a person to put the case for the defence, taking account of all the circumstances and in particular –
(i) the willingness and suitability (including the qualifications and experience) of that person.
(ii) the nature and complexity of the case,
(iii) any advantage of continuity of representation, and
(iv) the defendant's wishes and needs;
The Context: Funding of Representation in s.4A Proceedings
Regulations
Section 19(1)(3)(a) of the Prosecution of Offences Act 1985 (“the POA”) enables the Lord Chancellor to enact regulations which provide for the payment out of central funds in relation to “ such criminal proceedings as may be specified” to various individuals involved in criminal proceedings including pursuant to section 19(1)(3)(d) a person “ appointed by the Crown Court under section 4A of the Criminal Procedure (Insanity) Act 1964 to put the case for the defence”.
The Costs in Criminal Cases (General) Regulations 1986 were enacted by the Lord Chancellor pursuant to powers conferred by the POA. Part III of the 1986 Regulations applies to the “ determination of the proper fee or costs of a court appointee” (Regulation 13A). The definition of a court appointee in Regulation 13C includes “ a person appointed by the Crown Court under section 4A of the Criminal Procedure (Insanity) Act 1964 to put the case for the defence”.
Funding Order
The Criminal Defence Service (Funding) Order 2001 was made by the Lord Chancellor under powers conferred by provisions in the Access to Justice Act 1999. The Order came into force on 2 April 2001. It made no specific reference to the mechanism of payment to advocates appointed by the court under s.4A CPIA. However, the 2001 Funding Order was amended by the Criminal Defence Service (Funding) (Amendment)(No.3) Order 2001 which came into force on 29 October 2001. By the amendment, paragraph 27 was inserted into Schedule 4, Part 5 of the 2001 Funding Order. It provided for payment of advocates acting for a person found unfit to plead and stated that, where a trial on indictment did not continue or was not held due to a finding that the person was unfit, the “ trial advocate” must be paid a graduated fee in relation to the fitness hearing itself and subsequent hearing. The meaning of “ trial advocate” as set out in Part 1 is “a person instructed in accordance with a representation order to represent the assisted person at the main hearing in any case”. The Explanatory Note accompanying the Amendment provided for the “ payment of a graduated fee calculated in accordance with a representation order to represent the assisted person at the main hearing in any case”.
Funding Order
The 2001 Funding Order was revoked in April 2007 by the Criminal Defence Service (Funding) Order 2007. The 2007 Funding Order contained a more detailed provision in Schedule 1 for payment under the graduated fee scheme for trial advocates appointed under s.4A CPIA.
26. Assisted person unfit to plead or stand trial
Where in any case a hearing is held to determine the question of whether the assisted person is unfit to plead or to stand trial (a “fitness hearing”) –
(a) If a trial on indictment is held, or continues at any time thereafter, the length of the fitness hearing is included in determining the length of the trial for the calculation of the graduated fee in accordance with Part 2 or Part 3;
(b) If a trial on indictment is not held or does not continue thereafter by reason of the assisted person being found unfit to plead or to stand trial, the trial advocate must be paid –
i) A graduated fee calculated in accordance with paragraph 4 as appropriate to the combined length of
aa) The fitness hearing; and
bb) Any hearing under section 4A of the Criminal Procedure (Insanity) Act 1964 (finding that the accused did the act or made the omission charged against him); or
ii) A graduated fee calculated in accordance with paragraph 6 as appropriate for representing an assisted person in a cracked trial, whichever the trial advocate elects”
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO”) came into force on 1 April 2013. Its purpose is, amongst other things, to “ make provision about legal aid; to make further provision about funding legal services; to make provision about costs and other amounts awarded in civil and criminal proceedings”. Section 14 provides the following definition of criminal proceedings for the purposes of the Act:
14. Criminal proceedings
In this Part “criminal proceedings” means –
(a) proceedings before a court for dealing with an individual accused of an offence,
(b) proceedings before a court for dealing with an individual convicted of an offence, including proceedings in respect of a sentence or order,
(c) proceedings for dealing with an individual under the Extradition Act 2003,
(d) proceedings for binding an individual over to keep the peace or to be of good behaviour under section 115 of the Magistrates' Courts Act 1980 and for dealing with an individual who fails to comply with an order under that section,
(e) proceedings on an appeal brought by an individual under section 44A of the Criminal Appeal Act 1968 (appeal in case of death of appellant),
(f) proceedings on a reference under section 36 of the Criminal Justice Act 1972 on a point of law...
To continue reading
Request your trial