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The Criminal Defence Service (General) (No. 2) Regulations 2001

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Advocates in the Crown Court, Court of Appeal (Criminal Division) and House of Lords

14.—(1) A representation order may provide for the services of a Queen’s Counsel or of more than one advocate in respect of the whole or any specified part of any proceedings only in the cases specified and in the manner provided for by the following paragraphs of this regulation; and in this regulation “junior counsel” means any advocate other than a Queen’s Counsel.

(2) Subject to paragraphs (3) to (9), a representation order may provide for the services of a Queen’s Counsel or of more than one advocate in any of the following terms:

(a)a Queen’s Counsel alone;

(b)where two advocates are required:

(i)a Queen’s Counsel with a junior counsel;

(ii)a Queen’s Counsel with a noting junior counsel;

(iii)two junior counsel; or

(iv)a junior counsel with a noting junior counsel;

(c)where three advocates are required:

(i)in any of the terms provided for in sub-paragraph (b) plus an extra junior counsel; or

(ii)in any of the terms provided for in sub-paragraph (b) plus an extra noting junior counsel.

(3) A representation order relating to proceedings in the Crown Court may be made in the terms of paragraph (2)(a) if and only if:

(a)in the opinion of the court the case for the assisted person involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel; and

(b)either:

(i)a Queen’s Counsel or senior Treasury counsel has been instructed on behalf of the prosecution; or

(ii)the case for the assisted person is exceptional compared with the generality of cases involving similar offences.

(4) A representation order relating to proceedings in the Crown Court may be made in the terms of paragraph (2)(b)(iii) or (iv) if and only if:

(a)in the opinion of the court the case for the assisted person involves substantial novel or complex issues of law or fact which could not be adequately presented by a single advocate; and

(b)either:

(i)two or more advocates have been instructed on behalf of the prosecution;

(ii)the case for the assisted person is exceptional compared with the generality of cases involving similar offences;

(iii)the number of prosecution witnesses exceeds 80; or

(iv)the number of pages of prosecution evidence exceeds 1,000

and for this purpose 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.

(5) A representation order relating to proceedings in the Crown Court may be made in the terms of paragraph (2)(b)(i) or (ii) if and only if:

(a)in the opinion of the court the case for the assisted person involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel assisted by junior counsel; and

(b)either:

(i)the case for the assisted person is exceptional compared with the generality of cases involving similar offences; or

(ii)a Queen’s Counsel or senior Treasury counsel has been instructed on behalf of the prosecution and one of the conditions in paragraph (4)(b)(i), (iii) or (iv) is satisfied.

(6) A representation order may be made in the terms of paragraph (2)(c) if and only if:

(a)the proceedings arise from a prosecution brought by the Serious Fraud Office;

(b)the court making the order considers that three advocates are required; and

(c)in the case of proceedings in the Crown Court, the conditions in paragraph (4) or (5) are satisfied.

(7) The fact that a Queen’s Counsel has been or is proposed to be assigned under this regulation shall not by itself be a reason for making an order in any of the terms provided for by paragraph (2)(b) or (c).

(8) Where a Queen’s Counsel has been or is proposed to be assigned under this regulation, no order in any of the terms provided for by paragraph (2)(b) or (c) shall be made where the case relates to an appeal to the Court of Appeal or to the House of Lords and it appears to the court at the time of making the order that representation can properly be undertaken by a Queen’s Counsel alone.

(9) No order shall be made or amended so as to provide for representation:

(a)in the terms of paragraph (2)(b) unless the court making the order is of the opinion that the assisted person could not be adequately represented under an order in the terms of paragraph (2)(a);

(b)in the terms of paragraph (2)(b)(i) unless the court making the order is of the opinion that the assisted person could not be adequately represented under an order in the terms of paragraph (2)(b)(ii), (iii) or (iv);

(c)in the terms of paragraph (2)(b)(ii) unless the court making the order is of the opinion that the assisted person could not be adequately represented under an order in the terms of paragraph (2)(b)(iii) or (iv);

(d)in the terms of paragraph (2)(b)(iii) unless the court making the order is of the opinion that the assisted person could not be adequately represented under an order in the terms of paragraph (2)(b)(iv);

(e)in any of the terms provided for by paragraph (2)(c)(i) unless the court making the order is of the opinion that the assisted person could not be adequately represented under the corresponding order under paragraph (2)(c)(ii).

(10) Every application for a representation order in any of the terms provided for by paragraph (2), or for an amendment under paragraph (15), shall be in writing specifying:

(a)the terms of the order sought and the grounds of the application; and

(b)which of the conditions in paragraphs (3), (4), (5), (6) and (9) is relied upon in support of the order sought, and on what grounds it is contended that each such condition is fulfilled.

(11) A court may, before making a representation order in the terms provided for by paragraph (2) or amending the order under paragraph (15), require written advice from any advocate already assigned to the applicant on the question of what representation is needed in the proceedings.

(12) A court making a decision whether to make an order under paragraph (2) or to amend an order under paragraph (15) shall make annotations to the written application under paragraph (10), stating whether each of the conditions relied upon in support of the order made or sought is fulfilled.

(13) Subject to paragraph (14), a decision to make or amend a representation order so as to provide for the services of a Queen’s Counsel or of more than one advocate may only be made:

(a)in the course of a trial or of a preliminary hearing, pre-trial review or pleas and directions hearing, by the judge presiding at that trial or hearing;

(b)where the proceedings are in the Crown Court, by a High Court judge, the resident judge of the Crown Court or (in the absence of the resident judge) a judge nominated for that purpose by the presiding judge of the circuit; or

(c)where the proceedings are in the Court of Appeal, by the registrar, a High Court judge or a judge of the Court of Appeal.

(14) A magistrates' court which may grant a representation order as respects any proceedings in the Crown Court by virtue of these Regulations may make:

(a)a representation order providing for the services of a Queen’s Counsel without a junior counsel where the proceedings are a trial for murder and the order is made upon committal, transfer or sending for trial; or

(b)a representation order providing for the services of a Queen’s Counsel with one junior counsel where the prosecution is brought by the Serious Fraud Office and the order is made upon receiving a notice of transfer under section 4 of the Criminal Justice Act 1987

but shall have no other power to make an order under this regulation.

(15) In proceedings to which paragraph (3), (4), (5) or (6) applies, a representation order may be amended:

(a)in any terms provided for by paragraph (2) in accordance with the provisions of this regulation; or

(b)to provide for representation by one junior counsel only.

(16) In every case in which a representation order is made under this regulation for the provision of funded services in terms provided for by paragraph (2)(b) or (c), it shall be the duty of:

(a)each representative:

(i)to keep under review the need for more than one advocate to be present in court or otherwise providing services; and

(ii)to consider whether the representation order should be amended as provided for in paragraph (15);

(b)Queen’s Counsel, where the services of a Queen’s Counsel are provided, to keep under review the question whether he could act alone.

(17) It shall be the duty of each representative, if of the opinion that the representation order should be amended as provided for in paragraph (15), to notify that opinion in writing:

(a)to the other representatives for the assisted person; and

(b)to the court

and the court shall, after considering the opinion and any representations made by any other representatives for the assisted person, determine whether and in what manner the representation order should be amended.

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