Funding Criminal Appeals by Matthew Stanbury

3 October 2017

Undertaking appeals work has become more difficult following recent cuts to public funding. But it is not impossible to obtain funding to provide advice and assistance in a criminal appeals case. This How To Guide provides a brief outline on the rules governing the availability of public funding in this area.

The provision of advice on appeal will usually be covered by the Crown Court representation order, with the trial lawyers providing the advice and conducting any appeal.

The rules governing “second opinion” appeals and CCRC applications are contained in section 11, Part B of the Standard Crime Contract 2010 (the Contract). It is these cases with which this Guide is concerned.

The Contract contains the following initial guidance on “second opinions”:

11.6 Where there is further evidence or the Solicitor can point to some defect in the opinion or the proceedings, then further work may be justified for a further opinion, regardless of when the first opinion was obtained. We will allow you up to three hours (30 units) for the preparation of the instructions to Counsel or a Solicitor with higher court advocacy rights.

The Contract makes clear that it can never be used to obtain funding where an application is already before the Court of Appeal. At that stage public funding is only available under a representation order granted by the Court of Appeal.

The Sufficient Benefit Test

The Sufficient Benefit Test (SBT) is set out in Part A of the Contract, as follows:

Advice and Assistance

3.10 The Sufficient Benefit Test is set out below and must be satisfied in order to provide Advice and Assistance in this Contract.

“Advice and Assistance may only be provided on legal issues concerning English (or Welsh) law and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out.

3.11 This test applies both when the application is granted by you and when further Advice and Assistance is provided throughout the Matter. It must therefore be considered whenever work is carried out on the Matter…” (emphasis in original).

In appeals and review cases, a successful appeal will invariably constitute a “sufficient benefit”. Nevertheless, the prospects of success remain a relevant consideration by the requirement to “[have] regard to the circumstances of the matter.

The SBT must be kept under regular review, and this must be made clear on the file. If the test is not/no longer met then the file must not be opened/must be closed.

CCRC Cases

The Contract provides as follows:

Criminal Cases Review Commission

11.19 You must take instructions from the Client to establish whether the case is one which the CCRC could consider. You must bear in mind that the CCRC is a last resort and an application to the CCRC may only be made if the Client has either appealed against the original conviction or leave to appeal has been refused.

11.20 If  your  Client’s  Case  is  suitable  to  be  heard  by  the  CCRC,  you  must  consider   whether the case may be able to meet the referral criteria applied by the CCRC.

The latest CCRC Guidance for Legal Representatives, issued August 2015, sets out its acceptance criteria as follows:

We may refer a conviction if:

1. there is a real possibility the conviction would be overturned if it were referred; and
2. this real possibility arises from evidence or argument which was not put forward at trial or appeal (or there are exceptional circumstances); and
3. the applicant has already appealed or applied unsuccessfully for permission to appeal (or there are exceptional circumstances).

We may refer a sentence if:

1. there is a real possibility that the sentence would be reduced if it were referred; and

2. this real possibility arises from information or argument on a point of law which was not put forward at trial or appeal; and

3. the applicant has already appealed or applied unsuccessfully for permission to appeal (or there are exceptional circumstances).

Exceptional Circumstances

Under s.13(1)(c) of the Criminal Appeal Act 1995, an appeal must have been determined or formally abandoned or permission to appeal refused before we can consider a case unless there are ‘exceptional circumstances’. It is enough for an application to have been formally abandoned or, in the Court of Appeal, refused by the Single Judge (though a renewed application to the Full Court should be seriously considered before an application is made to the Commission).

We interpret ‘exceptional circumstances’ as circumstances where an applicant can only make progress with our assistance. Examples include where the applicant has pleaded guilty in the magistrates’ court (and has no other route to appeal) or in some circumstances where public body material needs to be obtained, which the applicant is unable to obtain directly because of, for instance, the sensitivity of the material.

As it is possible for a defendant to apply for permission to appeal out of time to both the Crown Court and the Court of Appeal, we do not accept that an appeal being ‘out of time’ amounts to exceptional circumstances.

Second Opinions

In terms of second (or subsequent) opinions, the Contract provides:

Previous Advice and Assistance

11.26 You must not Claim for Advice and Assistance provided to a Client who has received Advice and Assistance for the same matter from another Provider within the six months preceding the application, except where:

(a)  there is a gap in time and circumstances have changed materially between the first and second occasions when the Advice and Assistance was sought; or

(b)  the Client has reasonable cause to transfer from the first Provider; or

(c)  the first Provider has confirmed to you that he or she will be making no Claim for payment for the Advice and Assistance.

The big question, therefore, is what constitutes a “reasonable cause?” There is no guidance on this point, therefore it will be for the provider to justify its assessment. It might be thought that there would be a reasonable cause for the client to transfer where (a) the first provider represented the client at trial and the client sets out tenable concerns about the standard of representation provided, or (b) where there is something demonstrably flawed with the existing advice.

The contract is explicit that a file cannot be opened where:

(a)  the Client simply disagrees with the first advice and wants a second opinion;

(b)  there is only a short time between the first and second occasions when the Advice and Assistance is sought and no material change of circumstances has occurred;

(c)  the change requested is from a second to a third Provider (unless exceptionally it is reasonable for a further change); or

(d)  there is no reasonable explanation for the Client seeking further Advice and Assistance from a new Provider.

And:

11.33 You must ascertain whether previous Advice and Assistance has been provided in the same matter by making reasonable enquiries of your Client at the earliest opportunity. If the Client has received Advice and Assistance, and the circumstances in Paragraph 11.26(a) to (c) do not apply, you must either provide Advice and Assistance and not make a Claim for it, or should require the Client to contact the Provider who provided the original Advice and Assistance.

Limits on Claims

11.42 Subject to any extensions to the Upper Limit granted following an application made under Paragraphs 5.09 to 5.20 of this Specification, the Upper Limit specified in the Criminal Remuneration Regulations applies to Claims.

As at 31 March 2016, Schedule 4 to the Criminal Legal Aid (Remuneration) Regulations 2013 provide:

Advice and Assistance on an appeal against conviction or sentence or an application to the Criminal Cases Review Commission

8. The fixed amounts and hourly rates for Advice and Assistance on an appeal against conviction or sentence pursuant to a determination made under section 15 of the Act (except where there is a subsisting section 16 determination) or an application to the Criminal Cases Review Commission are specified in the table following this paragraph and are subject to an Upper Limit of—

(a) £273.75 for Advice and Assistance on appeals against conviction or sentence; and

(b) 456.25 for Advice and Assistance on an application to the Criminal Cases Review Commission.

Advice and Assistance an appeal against conviction or sentence or application to the Criminal Cases Review Commission

Routine letters written and routine telephone calls per item

£3.51 (London) £3.38 (National)

Preparation hourly rate £45.35 (L) £42.80 (N)

Travel and waiting hourly rate £24 (L) £24 (N).

Extending the Upper Funding Limit

The Contract provides in Part A:

5.10 You will not be paid more than the Upper Limit unless that limit has previously been extended by us in accordance with the provisions of this Specification (or in the case of Associated Civil Work, the provisions of the civil Specification). February 2015 38

5.11 An application for authority to exceed the Upper Limit must be made to us on a form specified by us.

5.12 In order that we can monitor high cost matters you must not exceed the Upper Limit without our authority. The Director may grant or refuse such authority on our behalf. If authority is granted, the Director will set a new Upper Limit on the Matter, above which payment will not be made unless you have applied for and been granted further authority.

5.13 Authority will not be granted by the Director unless the work carried out to date and the further work proposed is reasonable in accordance with the Contract Guide and the Sufficient Benefit Test (where applicable) and any other relevant Qualifying Criteria continue to be satisfied.

The Criminal Bills Assessment Manual (“The Assessment Manual”) sets out the process which LAA caseworkers should follows when considering applications to extend to the upper limit. It provides at §8.3:

8.3 Detailed Checks

1. The assessor should also ensure that a number of detailed checks are undertaken when assessing applications to extend an Upper Limit.
2. If the existing Upper Limit has been exceeded by the provider, the assessor should disallow any costs incurred in excess of that limit. If any further work requested is deemed reasonable, the application should then be part-granted by adding any further reasonable costs to the existing costs limit.
3. Justification should be provided detailing how the costs already incurred are reasonable and why the additional work requested is necessary.
4. Where preparation greater than 6 hours has been claimed, sufficient detail should be contained within the provider‘s application in order to justify the work claimed. If this has not been provided, the assessor should reject the form and request a comprehensive breakdown.
5. Advice and Assistance should not be provided where the client has already received advice in the same matter within the last 6 months (unless the relevant exceptions listed in the SCC Specification have been met). Any details relating to previous Advice and Assistance the client has received should be detailed on the application form” (emphasis added).
6. Accordingly, you should ensure that you supply as much information as you are able when making an application to extend the UL, and in particular you should justify the request. This will give the application the best chance of success.
7. In practice a file is opened using forms CRM 1 and 2, and extended using form CRM5.

Matthew is a barrister at Garden Court North Chambers. For more information and guidance on criminal appeals visit Matthew’s website appealsbarrister.com.