The Supreme Court Costs Office

No.3 of 2007

R v Gittins [2007] EWCA Crim 806

14 December 2006

Latham LJ, Mitting, Teare, JJ

This short but important ruling of the Court of Appeal (Criminal Division) concerns the situation which arises in criminal cases when hitherto privately paid counsel become publicly paid after a representation order is granted retrospectively. The Court said that as a matter of principle, private and public funding should not co-exist. However the only relevant restriction on payment is to be found in paragraph 22 of Part II to the Criminal Defence Service (General) (No.2) Regulations 2001 (as amended 18 May 2004 by SI 2004 No.1196). (Note: the references in the transcript at paragraphs 2 and 3 are not accurate.) This renders unlawful the receipt or payment of any money in proceedings in which the representation order has been made, but there can be no justification in the withholding of public funds to pay counsel provided they prove repayment of any privately funded fees.

This case should be read in conjunction with Goulden v Wilson Barca (A Firm) [2000] 1 All ER 169 CA and the restrictions which apply to a defendant who wishes to “top up” his publicly funded defence with payments made out of his own resources (see Greenslade on Costs at paragraph H383).