Solicitors continue to experience difficulty in obtaining prior authority (under reg 54 of the Costs in Criminal and Care Proceedings (General) Regulations 1989) to instruct doctors to prepare medical reports on their clients.

The cost of these reports is such that many firms cannot afford to take the risk of a later disallowance on taxation and so, to the disadvantage of their client, do not obtain a report.

The refusal by area offices and committees to authorise this expenditure appears to be based on a misleading entry in the legal aid handbook, para 18-17(b), and a failure properly to consider the law.In particular, it should be noted that the restriction on payments out of the legal aid fund in s 25 (3) of the Legal Aid Act 1988, whilst applying to the allowances for witnesses attending to give evidence, does not extend to their preparation of reports.

The handbook also fails fully to reflect the decision of the Law Society's costs appeals committee on this issue, reported as decision Crimla 3 (as amended) at para 18.28 of the handbook.

This now states that 'where it appears a court may be considering a disposal under the Mental Health Act, only in exceptional cases will the cost of medical or psychiatric reports be allowed for use in mitigation on conviction where no request has been made by the court'.

In relation to medical reports, s 19(3) of the Prosecution of Offences Act 1965 provides that 'the Lord Chancellor may by regulations make provision for the payment out of central funds .

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of such sums as appear to the court to be reasonably necessary .

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(c) to compensate a duly qualified medical practitioner who .

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(ii) makes a written report to a court in pursuance of a request to which S 32(2) of the Criminal Justice Act 1967 .

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applies for the expenses properly incurred in or incidental to his reporting to the court'.The relevant regulation is reg 25, Costs in Criminal Cases (General) Regulations 1986.

S 32(2) applies in relation to a registered medical practitioner making a written report to a court in pursuance of a request for which the sub-section applies.

The sub-section applies to a request made by a court:-- for the purpose of determining whether or not to make an order under s 3 of the Powers of Criminal Courts Act 1973 (probation orders requiring treatment for mental condition) or s 37 of the Mental Health Act 1983 (hospital orders and guardianship orders) or otherwise for the purposes of determining the most suitable method of dealing with an offender; or-- in exercising powers conferred by s 30 of the Magistrates' Courts Act 1980 (remand of the defendant for medical examination and requirement of such examination on committing a defendant for trial on bail).A medical report will, therefore, not be paid for from central funds if it is required to assist a solicitor to advise on appropriate plea, or to mitigate the seriousness of the offence without necessarily affecting the method of dealing with an offender.Crown Courts are indicating that, only if a report is required because the judge is considering a hospital/guardianship order or probation order requiring treatment for medical conditions, will a report be ordered by and prepared for the judge and payment made from central funds.

In all other cases it is for the defence to present such evidence as they consider appropriate, not for the judge to order it.

This approach is entirely consistent with Crimla 3 in its amended form and solicitors should seek to challenge the decisions of area offices or committees that are not in accordance with its terms.