"For the purposes of this Schedule the number of pages of prosecution evidence shall include all witness statements, documentary and pictorial exhibits and records of interview with the assisted person and with other defendants forming part of the committal documents or served prosecution documents or included in any notice of additional evidence."
"Dino Simm (aka Peter Leigh) and Sidney Eric Austin on divers days between the first day of January 2002 and fifth day of July 2003 conspired together and with persons known and unknown to defraud such persons who have an interest in motion picture films by manufacturing, importing and selling infringing copies of films."
'trial advocate' means a person instructed in account with a representation order to represent the assisted person at the main hearing in any case [including a Queen's Counsel or a leading junior counsel so instructed after the hearing at which pleas are taken]; 'case' means proceedings in the Crown Court against any one assisted person: (a) on one or more counts of a single indictment; (b) arising out of a single notice of appeal against conviction or sentence, or a single committal for sentence, whether on one or more charges; or (c) arising out of a single alleged breach of an order in order of the Crown Court and a case falling within paragraph (c) shall be treated as a separate case from the proceedings in which the order was made; 'cracked trial' and 'guilty plea' have the meaning given in paragraph 9(3), (4) and (5) of this Schedule; 'main hearing' means: (a) in relation to a case which goes to trial, the trial; (b) in relation to a guilty plea ..., the hearing at which pleas are taken or, where there is more than one such hearing, the last such hearing; [(bb) in relation to a cracked trial, the hearing at which - (i) the case becomes a cracked trial by meeting the conditions in paragraph 9(3) or (4), whether or not any pleas were taken at that hearing; or (ii) a formal verdict of not guilty was entered as a result of the prosecution offering no evidence under the administrative procedure, whether or not the parties were required by the court to attend the hearing;] (c) in relation to an appeal against conviction or sentence, the hearing of the appeal; (d) in relation to proceedings arising out of a committal for sentence, the sentencing hearing; and (e) in relation to proceedings arising out of an alleged breach of an order of the Crown Court, the final hearing; '
"The Determining Officer was correct in her assertion, citing R v Kemp (itself considering R v Phillips) that the graduated fee scheme is a 'comprehensive scheme which must be applied according to its explicit words'. There can be no doubt that the scheme is a rigid one, which must be applied to its letter, regardless of the fact that, on occasion, this may result in anomalies; see e.g. Martin Meeke QC v The Secretary of State for Constitutional Affairs. There is no requirement within the scheme that counsel is required to have read/studied the evidence which is to form the basis of the calculation of pages of prosecution evidence. On a literal, rigid interpretation of the scheme, as has typically been applied, counsel is therefore entitled to be paid for all pages of prosecution evidence, regardless of the scrutiny to which he has subjected them. Notwithstanding the above, thorough consideration was given to the DVDs/inlays served. It would have been open to counsel to require the prosecution to prove that each and every DVD seized was counterfeit; this was particularly so because the prosecution accepted from the outset that the defendant was trading a number of genuine DVDs. However, counsel saved vast expense by drafting admissions to the effect that the majority of the DVDs/inlays were indeed counterfeit. Nevertheless, the prosecution still wished to serve the entirety of the DVDs/inlays as exhibits, so that they gravity of the case was brought home to the jury and so that they could be regularly referred to. Had counsel so elected, in accordance with Part 4 paragraph 19(2), Counsel would have been able to claim for viewing the discs [or parts thereof] since they were part of the evidence in the case. It is submitted that this would have complied with the 'letter' of the scheme but would, nevertheless, have been against the 'spirit' thereof. Counsel would have been criticised for such a claim."
"7. On the wording of the Funding Order it is plain that the Graduated Fee Scheme prescribed by Schedule 4 is a comprehensive scheme providing for the remuneration of defence advocates in criminal legal aid proceedings in the Crown Court. Any case that meets the criteria for graduated fees prescribed under Part 1 of Schedule 4 must be paid fees in accordance with the scheme and with the exception of appeals, committals for sentence, and committals to be dealt with for a breach of a Crown Court order, there is no provision for the advocate to elect, or the determining officer to pay, fees other than those prescribed in Schedule 4. Similarly there is no discretion allowing the determining officer to choose among the different fees prescribed in Schedule 4 on the ground of reasonableness, or to extend a given fee beyond the cases to which it applies on its wording. 8. To be included in the page count, as defined under paragraph 1(2) of Schedule 4, the said pages must form 'part of the committal or served prosecution documents or be included in any notice of additional evidence. (See R v Sturdy X9 of the Graduated Fee Guidance - copy attached). The addition of the words 'or served prosecution' in paragraph 1(2) since the decision in Sturdy was inserted to reflect the fact that not all cases are now committed to the Crown Court and can be sent or transferred. Consequently, the prosecution pages of evidence must be included in either the committal/transfer/sent documents or in any notice of additional evidence. It is also necessary to give the words 'pages' and 'documents' their literal meaning. According to the court records only 1,956 pages of prosecution evidence meet the definition under paragraph 1(2) of Schedule 4. This, as far as 1,038 paper exhibits are concerned, has been verified by the determining officer contacting the prosecuting solicitors to confirm the number. 9. Should the Costs Judge be against our submission on the proper interpretation of paragraph 1 (2) of the Schedule 4, we would submit hat consideration should be given to the decision of Costs Judge Campbell in R v. Rigelsford (X42 of the Graduated Fee Guidance - copy attached). In that appeal the Costs Judge commented that there was 'something unsatisfactory about a submission which, if accepted, would result in public funds paying out tens of thousands of pounds to remunerate counsel for a job she did not do in full, namely examining all the photographs in the case'. This, we submit, counters the appellant's argument that 'there is no requirement within the scheme that counsel is required to have read/studied the evidence which is to form the basis of the calculation of pages of prosecution evidence'. We further submit that, as in the case of Rigelsford, only a sample of the DVDs and inlays were put before the jury in this case. In addition to this the defence made an admission that the majority of the DVDs and inlays were indeed counterfeit." 20 This met with an equally forceful and concise response on behalf of the appellants as follows: "1. Paragraph 7 of the LCD's representations (i) It is stated by the LCD in paragraph 7 of its submissions that 'any case that meets the criteria ... must be paid in accordance with the scheme.' It is further accepted by the LCD that there is 'no provision for the advocate to elect... fees other than those prescribed' and that, most importantly, 'there is no discretion allowing the determining officer to choose among the fees ... on the grounds of reasonableness.' It is submitted on behalf of the appellants that the meaning of the preceding sentence (taken from the case of R v Kemp, citing the LCD's own submissions in R v Phillips) is clear: there is no discretion afforded to the determining officer to decline or Farry payment of the prescribed fee under the scheme, either in favour of counsel, or in favour of the LCD. This is the case regardless of whether it results in putative 'unfairness' to either party. 2. Paragraph 8 of the LCD's submissions (i) It is agreed, as outlined in paragraph 8 of the LCD's submissions that to be included in the page count the said pages must form 'part of the committal or served prosecution documents ...' In this case, there can be no dispute that the 'pages' in question were included as part of the Crown's original committal bundle and can only properly be characterised as 'served' prosecution evidence. Should there be any dispute, the Appellants would rely on the exhibit index to the original committal bundles and the explanatory letter drafted by counsel for the prosecution, Mr. Groome. (ii) The LCD states in its representations at paragraph 8 that it is necessary to give the words 'pages' and 'documents' their literal meaning. This point is not expanded upon, nor does it appear to be supported by any authority cited in the LCD's submissions. The appellants aver that 'pages' is strictly defined by the terms of the scheme: Schedule 4, Part 1, Section 1, subsection 2 of the Criminal Defence Funding Order (as amended) dictates that: 'For the purpose of this Schedule, the number of pages of prosecution evidence shall include all witness statements, documentary and pictorial exhibits and records of interview with the assisted person and with other defendants forming part of the committal documents or included in any notice of additional evidence.' The appellants reiterate that the scheme 'must be applied in accordance with its explicit words' (again, R v Kemp, citing the LCD's own submissions in R v Phillips). The Appellants further rely on the case of R v Sturdy to support the assertion that the application of the scheme is to be a matter of 'pure construction'. It is further submitted that R v Sturdy provides authority for the proposition that it is irrelevant whether, when the words of the scheme are purely construed, the result is 'contrary to the spirit thereof'. 3. Paragraph 9 of the LCD's submissions (i) The LCD cites the case of its R v Rigelsford in paragraph 9 of its representations; essentially, it would appear, in order to suggest that a test of 'reasonableness' or 'justness' is to be imported into the determination of fees under the scheme. The Appellants submit that the other authorities cited in these submissions are at odds with R v Rigelsford and make it clear that reasonableness or justness is not a valid consideration under the scheme. In R v Sturdy, the learned costs judge expressed sympathy for counsel treated harshly by the scheme, but nonetheless felt compelled to make a decision which 'was contrary to the spirit' of the regulations. The learned costs judge felt similarly bound to make a ruling upholding the rigidity of the scheme in Martin Meeke QC v The Secretary of State for Constitutional Affairs. It is submitted that the result in each of those cases was not 'just' in the manner discussed in R v Rigelsford, but justness was irrelevant. Moreover, the same learned costs judge who presided over the case of R v Rigelsford did not read any similar requirement of justness into the graduated fee scheme when determining the case of R v Beckford. There, the learned costs judge interpreted the scheme to the letter, notwithstanding that, 'the outcome [gave] the appearance of being unjust.' It is submitted that, if the scheme truly required the importation in certain circumstances of a test of reasonableness or justness, the costs judge in all the above cases would most probably have awarded the fees as requested by counsel. (ii) It is submitted that the LCD has chosen to implement a scheme which is deliberately rigid in its interpretation, the result of which is frequent unfairness to advocates. The LCD has, further, confirmed its position with regard to the rigidity of the interpretation of the scheme through case law (e.g. through the submissions made in R v Phillips). It is submitted that it is disingenuous for the LCD to now adopt the position that, where a rigid interpretation results in an unfavourable outcome for the LCD, as opposed to counsel, the scheme may be applied far less strictly. It is submitted that such reasoning is both intellectually dishonest and an affront to natural justice. (iii) Notwithstanding the above, the Appellants seek to reiterate the point made in earlier submissions, namely that thorough consideration was given to the DVDs/inlays served. It would have been open to counsel to require the prosecution to prove that each and every DVD seized was counterfeit: yet counsel saved expense to the public purse by drafting admissions to the effect that the majority of the DVDs/inlays were indeed counterfeit. This case can again be distinguished from R v Rigelsford, on the basis that, unlike in R v Rigelsford, the entirety of the exhibits in this case were brought to court and deliberately made available by the Crown for the jury to inspect at any point."
"My assessors have informed me that the amounts laid down in the Tables were worked out as a result of a complex statistical analysis of historical costs across the whole range of Crown Court cases carried out by the Bar Council and the Department prior to the introduction of the scheme. The object of this was to provide 'cost neutrality' as between the old ex post facto regime and the new graduated fee scheme. That is to say that, following the introduction of the scheme, barristers as a whole would receive, and the legal aid fund would pay out, neither more nor less in real terms than what had been received and paid in the year preceding the scheme's introduction. To achieve this laudable aim, however, many arithmetical compromises were required with the result that, as was readily recognised at the time, there is a large element of 'swings and roundabouts' in the amounts payable to advocates for carrying out work rewarded by the graduated fee scheme. Since the scheme was introduced the Department have added to it and expanded it."