Banfield, R. v

Where a criminal representation order has been made for proceedings, a representative cannot recover private payment for work connected with those proceedings unless an express exception applies. This prohibition prevents "topping up", even where the representation order names leading counsel but not the solicitor.

For a period before any representation order was in force, private and public funding do not coexist. The court may consider a retrospective representation order on repayment terms or a defendant’s costs order. It must first receive full disclosure of the funding agreement and a detailed justification for the work and sums claimed.

Shirley Banfield was convicted of murder and related offences at the Central Criminal Court. Her renewed application for leave to appeal was initially privately funded after the Single Judge had refused leave. The Full Court later granted leave and made a representation order for leading counsel only.

Her murder conviction was subsequently quashed by the Court of Appeal: [2013] EWCA Crim 1394. She then sought a defendant’s costs order under section 16 of the Prosecution of Offences Act 1985 for personal expenses and for private legal costs. The remaining issues were whether solicitors could recover privately incurred costs after the representation order and what order, if any, could be made for the earlier unfunded period.

1. The costs application was adjourned in part. The appellant could not recover private solicitor costs incurred after 14 May 2013, when the Full Court made a representation order for the appeal.

2. Article 11 of the Criminal Defence Service (Funding) Order 2007 and regulation 9 of the Criminal Legal Aid (Remuneration) Regulations 2013 prohibited a representative from receiving private payment for work connected with proceedings covered by a representation order, save for the specified exceptions. The prohibition applied to anyone representing the defendant. It was not avoided because the order named leading counsel but did not name the solicitor. The wording, its policy, and the Standard Crime Contract all excluded private "topping up".

3. The Crown Court representation order did not cover the renewed application for leave to appeal. During the period from the Single Judge’s refusal on 2 October 2012 until the Full Court’s order on 14 May 2013, there was therefore no public funding and no prohibition on considering recovery of privately funded costs.

4. Applying the approach in R v Gittins and Khan [2007] EWCA Crim 806, the court could consider either a retrospective representation order, conditional on repayment of private sums, or a defendant’s costs order. In light of R v Hittendra Patel [2012] EWCA Crim 1508, neither course would be decided without full disclosure of the funding terms, evidence of all relevant arrangements, and a detailed explanation of the reasonableness of the work and charges.

• Court of Appeal (Criminal Division) The present judgment determined part of the appellant’s consequential costs application after her successful appeal.
• Court of Appeal (Criminal Division) On 31 July 2013, the court allowed the appeal and quashed the murder conviction: [2013] EWCA Crim 1394.
• Court of Appeal (Criminal Division) On 14 May 2013, the Full Court granted leave to appeal and made a representation order for leading counsel only. The Single Judge had refused leave on 2 October 2012.
• Central Criminal Court On 3 April 2012, the appellant was convicted of murder and sentenced to life imprisonment with an 18-year minimum term, together with concurrent sentences for related offences.