Gittins & Anor, R. v

A retrospective representation order may cover work performed on an application for leave to appeal. Under Access to Justice Act 1999, Schedule 3, paragraph 22 prohibits private and public payment for work in proceedings only after a representation order has been made. It does not retrospectively invalidate private payments made before the order, nor does it itself disentitle counsel to public payment under an order made retrospectively.

Applicants seeking retrospective public funding should disclose any prior private funding. If retrospective funding is granted despite such funding, it should be conditional on repayment of the private sums. The court may defer the issue of funding for past work until the appeal is determined.

In two criminal appeal matters, counsel had been privately paid for work on applications for leave to appeal. Retrospective representation orders were subsequently made, covering that work. Counsel accepted that they could not retain private fees if paid under the representation orders.

The issue was whether the earlier private funding prevented payment from public funds under the retrospective orders, and what procedure should govern future applications where private funding had preceded an application for public funding.

1. The court ruled that payment should not be withheld. There was no statutory basis for refusing payment to counsel under the retrospective representation orders, provided that counsel produced proof that all sums paid privately for the relevant work had been repaid.
2. Schedule 3, paragraph 10(5) of the Access to Justice Act 1999 permits a representation order to be made at any stage after notice of an application for leave to appeal. Under paragraph 10(6), the order may take effect from a specified stage. It may therefore operate retrospectively so as to cover work on the leave application as well as prospective work on the appeal.
3. Paragraph 22 gives effect to the principle that private and public funding should not coexist. Its language prohibits an assisted person’s solicitor or advocate from receiving, or participating in the making of, a payment for work connected with proceedings for which a representation order has been made. Properly construed, that prohibition operates only once the order has been made. It does not catch a receipt or payment made before the order, and it does not create a separate bar to payment under a retrospective order.
4. The court identified a practical safeguard for future cases. An application for a retrospective representation order should state clearly whether private funding has previously been provided. If the position is not disclosed or is unclear, the court should decline to make an order retrospective. If retrospective funding is nevertheless appropriate, it should be on terms requiring repayment of private sums. The court may instead adjourn the funding issue relating to past work until the appeal hearing, when it can consider whether a retrospective representation order or a defence costs order is appropriate.

• Court of Appeal (Criminal Division): The court determined funding issues arising in two applications for leave to appeal. No lower-court decision relevant to this ruling is stated in the judgment.