Public and private funding cannot co-exist, but the case examines how private costs incurred in renewing an application, not covered by a representation order, may be recovered.
On the 3rd April 2012 Shirley Banfield and Lynette Banfield were convicted of the murder of Donald Banfield at the Central Criminal Court. At the Crown Court Shirley Banfield was represented under a representation order that included the costs of making an application for leave to appeal to a Single Judge.
Both Ms Shirley Banfield and Lynette Banfield sought leave to appeal that was refused on the 2nd of October 2012. On the 14th May 2013 the Full Court heard a renewed application for leave to appeal. Ms Shirley Banfield was represented by Mr William Clegg QC on a private fee basis. Leave to appeal was granted and a representation order for Leading Counsel only. There was no representation order made in respect of the solicitors. On the 31st July 2013 the appeal was allowed and the convictions for murder were quashed.
After judgment had been delivered Mr Clegg QC made an application for costs under s16(4) of the Prosecution of Offences Act 1985 in respect of costs incurred that had not been covered by the representation order granted by the Crown Court and the representation order granted by the Court of Appeal on the 14th May 2013. The application for costs in regards to the solicitors was for the following:
1) Private costs and disbursements incurred by solicitor and counsel when there was no representation order in place between the initial refusal of leave by the Single Judge on 2nd October 2012 and the grant by the Full Court on 14th May 2013, including the fees of Mr Clegg QC on the renewed application;
2) Private costs and disbursements incurred by the solicitor after the 15th May 2013, as no representation order was made for the Full Court for anyone other than Leading Counsel; the work done included seeing Ms Shirley Banfield in prison, speaking to her by phone and writing to her and attendance at the Court of Appeal on the day of the appeal hearing.
Held: The Court of Appeal considered the decision in R v Grant  1 Costs LR 173 where Costs Judge Gordon-Saker observed that the purpose of the Criminal Defence Funding regulations were to prevent lawyers charging for work done in relation to proceedings for which there was a representation order. The case of R v Gittins and Khan  EWCA Crim 806 also reinforces the notion that private and public funding could not co-exist. The Court took the view that it was clearly established that where a representation order was made the defendant is not entitled to charge privately for work done. Therefore Ms Shirley Banfield was not entitled to recover any part of the costs for which she had been charged by her solicitors after the 14th May 2013.
In regards to costs occurred in making the renewed appeal application it was contended on the basis of the decision in R v Gittins and Khan  EWCA Crim 806 that if a renewed application is privately funded, then the court is entitled to make retrospectively, on terms, a representation order covering the application after the appeal. Alternatively a defendant's costs order could be made in respect of the period between the expiry of the representation order made by the Crown Court after the refusal of leave by the Single Judge on the 2nd October 2012 and the grant by the Full Court of a representation order on the 14th May 2013. Thereby there would be no prohibition in relation to the co-existence of private and public funding, as there would have been no public funding for that period. Such costs would need to be carefully examined however to confirm they were reasonable and the basis on which they were incurred.
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