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- 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.
Where successful, the results will be both in the interests of justice and provide costs savings to the public purse.
Legal aid is available for funding plea discussions. It is provided in accordance with the terms of a Provisional Representation Order (PRO) (see SI 1995 of 2009 ) and the L LSC’s PRO individual case contract.
Prosecuting agencies select cases they think suitable for plea discussions and send a proffer letter to the defendant’s representative. If the offer is accepted, plea discussions may begin.
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 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
To apply for a PRO, litigators should notify the CCU on receipt of a written offer from the prosecution. Application for a PRO should be made using the application form in the douments panel. Applicants should also supply copies of
- the offer letter and supporting documentation (if available),
- one form of photographic identification for the client (passport, 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, applicants 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 after, the litigator wishes to apply for the order to be extended to Counsel, they should also complete a Counsel Extension Pro-Forma.
The CCU will return the following:
- The PRO
- Individual case contract and contract specification for signature
- PRO Extension Pro Forma and supporting guidance
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. Litigators don't have to be a member of any panel to sign up to any such contract.
As in existing Very High Cost Cases (VHCCs) the contract is managed by a contract manager. Work must 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, defendants and their representatives shoud enter into plea discussions in a spirit of cooperation.
Full case preparation required for a contested trial should not be necessary. Nor will it be appropriate for the defence 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
The regulations don't permit a PRO for 2 juniors as per s4 of SI 1853/09, and 2.5 of the individual case contract.
Where a litigator aplies for an extension of the PRO to include an advocate, they must provide reasons to the CCU as to why they cannot do the work without an advocate. (PROs don't cover court proceedings, or advocacy in open court.)
In deciding whether to grant such an application the CCU will try 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.
All parties involved in plea discussions should aim 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 can 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: 20 October 2010