Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Consequential amendments
Part 1 — Amendments
137

45    (1)
Section 50 (early administrative hearings) is amended as follows.
      (2)
In subsection (2)—
(a)
after “this section” insert “—
(a)
”, and
(b)
for the words from “to be granted” to the end substitute “to be
5
provided with representation for the purposes of the proceedings
under Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011, and
(b)
if he indicates that he does, the necessary
arrangements must be made for him to apply for it
10
and, where appropriate, obtain it.”
      (3)
Omit subsection (2A).
46
In section 51B(6)(b) (effect of notice given under section 51B in serious or
complex fraud cases) for “paragraph 2 of Schedule 3 to the Access to Justice
Act 1999” substitute “regulations under section 18 of the Legal Aid,
15
Sentencing and Punishment of Offenders Act 2011”.
47
In section 52A(7) (matters to which reporting restrictions do not apply) for
paragraph (h) substitute—
“(h)
whether, for the purposes of the proceedings, representation
was provided to the accused or any of the accused under Part
20
1 of the Legal Aid, Sentencing and Punishment of Offenders
Act 2011.”
48
In paragraph 3(8) of Schedule 3 (matters to which reporting restrictions do
not apply) for paragraph (g) substitute—
“(g)
whether, for the purposes of the proceedings,
25
representation was provided to the accused or any of the
accused under Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011.”
Access to Justice Act 1999
49
In the Access to Justice Act 1999 omit—
30
(a)
sections 1 to 26 and Schedules 1 to 3A (legal aid), and
(b)
Part 2 of Schedule 14 (transitional provision: Legal Services
Commission).
Powers of Criminal Courts (Sentencing) Act 2000
50
The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
35
51    (1)
Section 83(3) (exception to restriction on imposition of custodial sentence on
persons not legally represented) is amended as follows.
      (2)
In paragraph (a)—
(a)
for the words from the beginning to “but the right” substitute
“representation was made available to him for the purposes of the
40
proceedings under Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011 but”, and
(b)
for “to be granted such a right” substitute “for such representation”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Consequential amendments
Part 1 — Amendments
138

      (3)
In paragraph (aa) for “to be granted a right to it” substitute “for such
representation”.
52
In section 155(8) (alteration of Crown Court sentence) for “section 17(2) of
the Access to Justice Act 1999” substitute “relating to a requirement to make
a payment under regulations under section 22 or 23 of the Legal Aid,
5
Sentencing and Punishment of Offenders Act 2011”.
Freedom of Information Act 2000
53
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
authorities) omit “The Legal Services Commission.”
International Criminal Court Act 2001
10
54
In section 6(2)(c) of the International Criminal Court Act 2001
(supplementary provisions as to proceedings before competent court) for
“Access to Justice Act 1999 (c.22) (advice, assistance and representation)”
substitute “Legal Aid, Sentencing and Punishment of Offenders Act 2011”.
Anti-terrorism, Crime and Security Act 2001
15
55
In Schedule 4 to the Anti-terrorism, Crime and Security Act 2001 (extension
of disclosure powers)
(a)
omit paragraph 47, and
(b)
after paragraph 53C insert—
“53D
Section 33 of the Legal Aid, Sentencing and Punishment of
20
Offenders Act 2011.”
Proceeds of Crime Act 2002
56
The Proceeds of Crime Act 2002 is amended as follows.
57
In section 245C(6)(b) (exclusion from property freezing order or prohibition
on dealing with property to which order applies) for “funded by the Legal
25
Services Commission or” substitute “made available under arrangements
made for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011 or funded by”.
58
In section 252(4A)(b) (exclusion from restriction on dealing with property)
for “funded by the Legal Services Commission or” substitute “made
30
available under arrangements made for the purposes of Part 1 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2011 or funded by”.
Communications Act 2003
59
In section 119(7)(a) of the Communications Act 2003 (charges to recover
costs of assistance in proceedings)—
35
(a)
for “section 10(7) of the Access to Justice Act 1999 (c.22)” substitute
“section 24 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011”, and
(b)
for “Legal Services Commission” substitute “Lord Chancellor”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Consequential amendments
Part 1 — Amendments
139

Extradition Act 2003
60
The Extradition Act 2003 is amended as follows.
61
In section 45(7) (consent to extradition) for paragraph (a) substitute—
“(a)
in England and Wales, representation for the purposes of
criminal proceedings provided under arrangements made
5
for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011;”.
62
In section 127(8) (consent to extradition: general) for paragraph (a)
substitute—
“(a)
in England and Wales, representation for the purposes of
10
criminal proceedings provided under arrangements made
for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011;”.
Criminal Justice Act 2003
63
In section 71(8) of the Criminal Justice Act 2003 (matters to which reporting
15
restrictions do not apply) for paragraph (g) substitute—
“(g)
whether, for the purposes of the proceedings, representation
was provided to the defendant or any of the defendants
under Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011.”
20
Domestic Violence, Crime and Victims Act 2004
64
In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004
(authorities within remit of Commissioner for Victims and Witnesses) omit
paragraph 21 (Legal Services Commission).
Equality Act 2006
25
65
In section 29(3) of the Equality Act 2006 (costs of Equality and Human Rights
Commission in providing legal assistance) for “section 11(4)(f) of the Access
to Justice Act 1999 (c. 22) (recovery of costs in funded cases)” substitute
“section 24 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011 (statutory charge in connection with civil legal aid)”.
30
Legal Services Act 2007
66
In section 194(6) of the Legal Services Act 2007 (payments in respect of pro
bono representation) for paragraph (b) substitute—
“(b)
provided under arrangements made for the purposes of Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
35
Act 2011.”
Criminal Justice and Immigration Act 2008
67
In paragraph 19(2) of Schedule 1 to the Criminal Justice and Immigration Act
2008 (preconditions to imposing local authority residence requirement or
fostering requirement) for paragraph (a) (but not the “or” following it)
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Consequential amendments
Part 2 — Repeals consequential on Part 1 of this Schedule
140

substitute—
“(a)
that representation was made available to the offender for
the purposes of the proceedings under Part 1 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2011 but
was withdrawn because of the offender’s conduct,”.
5
Part 2
Repeals consequential on Part 1 of this Schedule

Short title and chapter
Extent of repeal

Legal Aid Act 1988
In Schedule 5, paragraph 13.

Access to Justice Act 1999
In Schedule 4—

10

(a)
paragraph 8;

(b)
paragraphs 10 and 11;

(c)
paragraphs 16 to 19;

(d)
paragraphs 29 and 30(2) and (3)(a);

(e)
paragraph 33;

15

(f)
paragraph 35;

(g)
paragraphs 38 to 40;

(h)
paragraph 47;

(i)
paragraph 49;

(j)
paragraphs 51(3) and 52;

20

(k)
paragraph 55.

Terrorism Act 2000
In Schedule 15, paragraph 19.

Child Support, Pensions and
In Schedule 8, paragraph 15.

Social Security Act 2000

Criminal Defence Service
The whole Act.

25

(Advice and Assistance) Act

2001

Anti-terrorism, Crime and
Section 2(1) to (3).

Security Act 2001

Proceeds of Crime Act 2002
In Schedule 11, paragraph 36.

30

Adoption and Children Act
In Schedule 3, paragraph 102.

2002

Nationality, Immigration and
Section 116.

Asylum Act 2002

Extradition Act 2003
Section 182.

35

Civil Partnership Act 2004
In Schedule 27, paragraph 156.

Constitutional Reform Act 2005
In Schedule 9, paragraph 68(3).

Mental Capacity Act 2005
In Schedule 6, paragraph 44.

Criminal Defence Service Act
Sections 1 to 3.

2006
Section 4(1).

40

Serious Crime Act 2007
In Schedule 8, paragraph 159.

Legal Services Act 2007
In Schedule 21, paragraph 128.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
141

Short title and chapter
Extent of repeal

Criminal Justice and
Sections 56 to 58.

Immigration Act 2008

Human Fertilisation and
Schedule 6, paragraph 38.

Embryology Act 2008

5

Coroners and Justice Act 2009
Section 51.

Sections 149 to 153.

Schedule 18.

Policing and Crime Act 2009
In Schedule 7, paragraph 98.

Schedule 6
10
Section 52

Costs in criminal cases
Part 1
Prosecution of Offences Act 1985
Introduction
1
The Prosecution of Offences Act 1985 is amended as follows.
15
Defence costs
2     (1)
Section 16 (defence costs) is amended as follows.
      (2)
After subsection (6) insert—
“(6A)
Where the court considers that there are circumstances that make it
inappropriate for the accused to recover the full amount mentioned
20
in subsection (6), a defendant’s costs order must be for the payment
out of central funds of such lesser amount as the court considers just
and reasonable.
(6B)
Subsections (6) and (6A) have effect subject to—
(a)
section 16A, and
25
(b)
regulations under section 20(1A)(d).
(6C)
When making a defendant’s costs order, the court must fix the
amount to be paid out of central funds in the order if it considers it
appropriate to do so and—
(a)
the accused agrees the amount, or
30
(b)
subsection (6A) applies.
(6D)
Where the court does not fix the amount to be paid out of central
funds in the order—
(a)
it must describe in the order any reduction required under
subsection (6A), and
35
(b)
the amount must be fixed by means of a determination made
by or on behalf of the court in accordance with procedures
specified in regulations made by the Lord Chancellor.”

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
142

      (3)
Omit subsections (7) and (9).
Legal costs
3
After section 16 insert—
“16A
Legal costs
(1)
A defendant’s costs order may not require the payment out of central
5
funds of an amount that includes an amount in respect of the
accused’s legal costs, subject to the following provisions of this
section.
(2)
Subsection (1) does not apply where condition A, B or C is met.
(3)
Condition A is that the accused is an individual and the order is
10
made under—
(a)
section 16(1),
(b)
section 16(3), or
(c)
section 16(4)(a)(ii) or (iii) or (d).
(4)
Condition B is that the accused is an individual and the legal costs
15
were incurred in proceedings in a court below which were—
(a)
proceedings in a magistrates’ court, or
(b)
proceedings on an appeal to the Crown Court under section
108 of the Magistrates’ Courts Act 1980 (right of appeal
against conviction or sentence).
20
(5)
Condition C is that the legal costs were incurred in proceedings in
the Supreme Court.
(6)
The Lord Chancellor may by regulations make provision about
exceptions from the prohibition in subsection (1), including—
(a)
provision amending this section by adding, modifying or
25
removing an exception, and
(b)
provision for an exception to arise where a determination has
been made by a person specified in the regulations.
(7)
Regulations under subsection (6) may not remove or limit the
exception provided by condition C.
30
(8)
Where a court makes a defendant’s costs order requiring the
payment out of central funds of an amount that includes an amount
in respect of legal costs, the order must include a statement to that
effect.
(9)
Where, in a defendant’s costs order, a court fixes an amount to be
35
paid out of central funds that includes an amount in respect of legal
costs incurred in proceedings in a court other than the Supreme
Court, the latter amount must not exceed an amount specified by
regulations made by the Lord Chancellor.
(10)
In this section—
40
“legal costs” means fees, charges, disbursements and other
amounts payable in respect of advocacy services or litigation
services including, in particular, expert witness costs;

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
143

“advocacy services” means any services which it would be
reasonable to expect a person who is exercising, or
contemplating exercising, a right of audience in relation to
any proceedings, or contemplated proceedings, to provide;
“expert witness costs” means amounts payable in respect of the
5
services of an expert witness, including amounts payable in
connection with attendance by the witness at court or
elsewhere;
“litigation services” means any services which it would be
reasonable to expect a person who is exercising, or
10
contemplating exercising, a right to conduct litigation in
relation to proceedings, or contemplated proceedings, to
provide.”
Prosecution costs
4     (1)
Section 17 (prosecution costs) is amended as follows.
15
      (2)
In subsection (1) for “subsection (2)” substitute “subsections (2) and (2A)”.
      (3)
After subsection (2) insert—
“(2A)
Where the court considers that there are circumstances that make it
inappropriate for the prosecution to recover the full amount
mentioned in subsection (1), an order under this section must be for
20
the payment out of central funds of such lesser amount as the court
considers just and reasonable.
(2B)
When making an order under this section, the court must fix the
amount to be paid out of central funds in the order if it considers it
appropriate to do so and—
25
(a)
the prosecutor agrees the amount, or
(b)
subsection (2A) applies.
(2C)
Where the court does not fix the amount to be paid out of central
funds in the order—
(a)
it must describe in the order any reduction required under
30
subsection (2A), and
(b)
the amount must be fixed by means of a determination made
by or on behalf of the court in accordance with procedures
specified in regulations made by the Lord Chancellor.”
      (4)
Omit subsections (3) and (4).
35
Costs of witnesses and appellants not in custody
5     (1)
Section 19 (provision for orders as to costs in other circumstances) is
amended as follows.
      (2)
After subsection (3) insert—
“(3ZA)
In relation to a sum that may be required by a court other than the
40
Supreme Court to be paid out of central funds under regulations
under subsection (3)—
(a)
the requirement under that subsection for the sum to be such
sum as the court considers reasonably necessary to cover or