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Criminal Defence Service (CDS)- Very high cost criminal cases
- Plea discussions
Plea discussions
- Background
- Applying for a PRO
- Agreeing work under the contract
- Extension, amendment and withdrawl of the PRO
- Disputes and appeals
- Claiming payment
- List of statutory instruments
Background
The purpose and spirit of the plea discussions is set out within the Attorney General’s Framework (March 2009).
It aims to provide the possibility of early resolution in certain cases with the potential to be at the most complex and expensive end of the spectrum.
It is hoped that, where successful, the results will be both in the interests of justice, and provide costs savings to the public purse.
Legal aid, where required, is available for the funding of plea discussions. It is provided in accordance with the terms of a Provisional Representation Order (PRO) (see SI 1995 of 2009 ) and the Legal Services Commission's (LSC)’s PRO Individual Case contract
The prosecuting agencies concerned will select those cases which they think suitable for plea discussions. When a prosecutor has selected a case, they will send a proffer letter to the relevant defendant’s representative. If the offer is accepted, plea discussions may commence.
Plea discussions may result in an agreed plea and subsequent proceedings (to enter the plea and deal with mitigation and sentence); no agreed plea and subsequent proceedings; no agreed plea and no subsequent proceedings.
A PRO may last up to three months. The defence team may seek to extend the PRO for a further three months by application to the Complex Crime Unit, (CCU), if there are reasonable grounds to expect that a further period will lead to an agreed plea. (SI 1995/09, s4(2) and Individual Case Contract paragraph 2.8)
Applying for a PRO
If a litigator wishes to apply for a PRO, they should notify the CCU on receipt of a written offer from the Prosecution. The CCU would recommend that the application for a PRO is made using the application form on the LSC website. The applicant should also supply copies of
- the offer letter and supporting documentation, (if available),
- one form of photographic identification for the client (passport or photocard driving licence or national identity card).
If the application form is not used, the applicant should request a PRO in writing. In addition to the documents identified above, the applicant should forward a signed authority (with original signature) confirming the client’s wish to enter into plea discussions, and to be represented by the litigator concerned.
If at the time of the Prosecution offer, or at any time thereafter, the litigator wishes to apply for the order to be extended to Counsel, they should also complete a Counsel Extension Pro-Forma and return that.
The CCU will return the following:
- The PRO
- Individual Case Contract & Contract Specification for signature
- PRO Extension Pro Forma and supporting guidance
Please note the contract manager will forward a copy of the electronic task list via email.
Agreeing work under the contract
The scope and terms of funding for plea discussions are contained within the Individual Case Contract. It is not necessary for a litigator to be a member of any panel to sign up to any such contract.
As in existing Very High Cost Cases (VHCC’s) the contract is managed by a contract manager, with the requirement that work be preauthorised and agreed following the submission of a task list.
When granting time, the CCU intends to apply some of the same principles already in existence for VHCCs.
However, in line with the intention of the Attorney General’s Framework, it is expected that defendants and their representatives entering into plea discussions will do so in a spirit of cooperation.
It follows that the full case preparation required for a contested trial should not be necessary, nor will it be necessary or appropriate for the defence to seek to put the prosecution to proof on all aspects of their case.
Because of this, the CCU would expect a far reduced need for a number of expenses, which will be granted only exceptionally. These may include, but are not limited to
- experts’ reports
- attendance upon defence witnesses
- distant travel
Additionally, reading times allowed are likely to vary from those routinely allowed in VHCCs being prepared for a contested trial.
Attached to this guidance are two template task lists (for both litigators and advocates) which are the starting point for times which the CCU might expect to allow for preparing plea discussion cases. These may be varied through negotiation with a contract manager in an individual case.
Extension, amendment and withdrawal of the PRO
A PRO may be extended to authorise the litigator to instruct
- a Junior alone, or
- a QC alone, or
- a led Junior and QC
Please note the regulations do not permit a PRO for 2 juniors as per s4 of SI 1853/09, and 2.5 of the Individual Case Contract.
Where a litigator applies for an extension of the PRO to include an advocate, the litigator must provide reasons to the CCU as to why the litigator cannot do the work without an advocate (note, PRO's do not cover court proceedings, or advocacy in open court.)
In deciding whether to grant such an application the CCU will strive to reach a reasonable decision based on all the circumstances of the case, including the principle of equality of arms.
Where a litigator applies for extension of the PRO to include QC alone, or junior counsel and QC, the CCU will seek to follow the principles of Regulation 14 of the CDS General Regulations 2001 in as far as they apply to the circumstances in hand.
The CCU will expect that all parties involved in plea discussions will seek to reach a satisfactory resolution within three months. Where the defence team make an application for the extension of the PRO for a further three months, the onus is on the defence team to provide reasons why this should be granted.
The defence team must provide clear evidence that there is a realistic prospect of successful resolution of the discussions within the next three months (see 2.8 of the Individual Case Contract) and without this the extension should not be granted.
The CCU has the power to withdraw the PRO and has an obligation to do so where it is in the interests of justice and the public interest, or where the plea discussions are discontinued (SI 1995/09 s4)
Disputes and appeals
The defence team have the right to appeal against the CCU’s decision in the following instances:-
- individual tasks disputed on the submitted task list
- hours in dispute within the submitted task list
- disbursements
- decisions regarding the amendment, extension of withdrawal of the PRO (including level of advocate authorised)
- designation of levels of fee earner
- reduction of work allowed on contract audit
Please see s7.3 of the Individual Case contract for the full list.
Appeals are to a single adjudicator and are heard on the papers only. S7 of the Individual Case Contract contains further detail about the appeals process.
Claiming payment
Claims for payment for both litigators and advocates should be made by submission of a bill to the CCU, by the litigator, at the conclusion of the plea discussions, or at the conclusion of the first three month stage if there is an extension to the PRO.
Rates for payment are set out at Section 3 of the Individual Case Contract, and in paragraph 6 of the Criminal Defence Service Funding Amendment Order (SI 1843/09).
All Plea Discussion cases are paid at the same rate, and there is no variation of case by category.
Where an advocate has been instructed under the PRO, and wishes to claim public funds for work done, the litigator may claim and receive payment on behalf of that advocate. (SI 1843/09, s6) There is no facility for the advocate to claim or receive payment directly from the CCU.
The litigator should submit the task list together with attendance notes evidencing work done, and advocates’ work logs where appropriate.
List of statutory instruments
Last updated: 06 November 2009