In each of three cases where a legally-aided defendant to criminal proceedings had been found unfit to stand trial for the offences of which he was charged, proceedings were conducted under section 4A of the Criminal Procedure (Insanity) Act 1964 to determine whether the accused had done the act or made the omission charged against him as the offence. In each case counsel or solicitors who had previously acted for the accused pursuant to a legal aid representation order were appointed by the court to represent him in the section 4A proceedings. Each of the representatives sought to have their costs of the section 4A proceedings paid out of central funds pursuant to regulation 13A of the Costs in Criminal Cases (General) Regulations 1986, made under section 19(1)(3) of the Prosecution of Offences Act 1985 and dealing with the “determination of the proper fee or costs of a court appointee”. In each case the determining officer decided that payment was not to be made out of central funds but was instead to be made in accordance with the Advocates' Graduated Fee Scheme for legal aid representation set out in Schedule 1 to the Criminal Defence Service (Funding) Order 2007. The representatives’ appeals were allowed by the costs judge who held that following a determination of unfitness the nature of the hearing moved from criminal to non-criminal and that, accordingly, the representatives’ costs ought to be met out of central funds. The Lord Chancellor appealed the decision on the basis that the costs judge’s decision failed to take proper account of paragraph 31 of Schedule 1 of the Criminal Legal Aid (Remuneration) Regulations 2013, made pursuant to powers conferred by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which provided expressly for the payment of an advocate instructed by the court in section 4A proceedings to be via the advocates’ graduated fee scheme, or of the very broad definition of “criminal proceedings” in section 14(a) of the 2012 Act in so far as it covered “proceedings before a court for dealing with an individual accused of an offence”.
On the Lord Chancellor’s appeal—
Held, appeal allowed. On a straightforward linguistic interpretation, the wide definition of a “criminal proceeding” in section 14(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 covered proceedings under section 4A of the Criminal Procedure (Insanity) Act 1964, since the proceedings by which the jury determined whether the accused had done the act or made the omission charged against him as an offence were proceedings before a court concerning an individual who had been accused of an offence, and those proceedings dealt with such an individual in the sense that they would lead to a determination which would result in either the discharge of the accused or the accused being made subject to a hospital order or supervision order. Section 14(a) of the 2012 Act did not require that proceedings which might potentially attract the benefit of publicly-funded representation had to bear the hallmarks of a criminal trial. That interpretation of section 114(a) was supported by the Criminal Legal Aid (Remuneration) Regulations 2013, paragraph 31 of Schedule 1 to which on its face provided a scheme for payment for an advocate who was already instructed pursuant to a legal aid order to act for an accused, and who was then appointed by the court under section 4A of the 1964 Act. As paragraph 31 prescribed, with mandatory effect, that a court-appointed representative subject to a pre-existing representation order was to be paid via the graduated fee scheme, it followed that the costs judge had been wrong to conclude that the legal representatives in the present cases ought to be paid from central funds under the Costs in Criminal Cases (General) Regulations 1986. His order would be quashed accordingly and substituted with an order for payment via the graduated fee scheme (paras 31–34, 37, 38).
Florence Iveson (instructed by Treasury Solicitor) for the Lord Chancellor.
The legal representatives in person.