• Home
• Guidance
• Interim Guidance in Connection with Criminal Cases and Plea and Case Management Hearings

Interim Guidance in Connection with Criminal Cases and Plea and Case Management Hearings

The guidance issued by the Professional Conduct and Complaints Committee on 15 November 2003 remains effective.

The Professional Standards Committee (now known as the Professional Practice Committee) will keep this difficult topic under review. Practitioners are strongly recommended to abide by this guidance until further notice.

1.  Concern has been expressed by the Criminal Bar Association as to the position of counsel asked to attend a Plea and Case Management Hearing (“PCMH”) under the new procedure under the Criminal Procedure Rules set up pursuant to the Courts Act 2003.

Instructions accepted on or after 4 April 2005

2.  At present funding is not available in respect of counsel attending PCMH hearings in the crown court. Thus counsel will normally be paid an attendance fee of £100. The nature of PCMH hearings is envisaged to be such that in a substantial case, it may be necessary for counsel to spend many hours or even days preparing for the PCMH hearing, for which £100 may well not be adequate remuneration.

3.  Where counsel is asked to accept a GFS case, counsel will be entitled to decline the brief if he forms the view that the remuneration is inadequate. Counsel is also entitled to indicate that he is prepared to accept instructions for one or more hearings in the case but not other hearings on the ground that remuneration for those hearings is not adequate. Guidance on this was given by the PCCC on 15 November 2003, a copy of the guidance is attached and it can also be found on the Bar Council website.

Instructions accepted before 4 April 2005

4.  The problem arises where counsel accepted instructions prior to 4 April 2005 before the PCMH procedure came into force and now finds that he is obliged to attend a PCMH hearing when he accepted instructions without qualification on the basis of the procedure then applying. This may mean that he will be obliged to do substantial work which he did not contemplate when he accepted the brief, and for which he may be inadequately remunerated.

5.  Although this problem is of serious concern, it is hoped that it is a short-term problem, and one that will only apply in a relatively small number of cases. In respect of instructions accepted after 4 April 2005, the problem does not arise because the PCMH procedure had already come into force when counsel will have taken the decision in any individual case whether to decline the instructions on the grounds of inadequate remuneration. Many of the PCMH hearings where instructions were accepted prior to 4 April have now been completed.

6.  The PSC and the PCCC take the view that in any normal case counsel who find themselves in this predicament, having accepted a brief prior to 4 April 2005, will be obliged to attend the PCMH hearing notwithstanding the inadequate fee. There may be circumstances when the obligation imposed on counsel is so radically different from that to which he agreed when accepting the brief that it may be possible to return the brief in the case on the grounds that there is “some other substantial reason for so doing” within para 609 (d) of the Code of Conduct but this is unlikely to apply in any normal case.

Obligation always to be properly prepared for hearings

7.  What is not acceptable is that counsel should ever attend a PCMH hearing inadequately prepared. If counsel attends a hearing, he is obliged to be properly prepared.