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Legal Aid, Sentencing and Punishment of Offenders Bill


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

144

 

compensate for expenses, fees, costs, trouble or losses is

subject to regulations made under section 20(1A)(d), and

(b)   

regulations under subsection (3) may make provision

accordingly.”

      (3)  

After subsection (3C) insert—

5

“(3D)   

Regulations under subsection (3) may make provision generally or

only in relation to particular descriptions of persons, expenses, fees,

costs, trouble or losses.”

      (4)  

After subsection (4) insert—

“(4A)   

Subsection (4) has effect subject to regulations under section

10

20(1A)(d).

(4B)   

An order under subsection (4) may not require the payment out of

central funds of a sum that includes a sum in respect of legal costs (as

defined in section 16A), except where regulations made by the Lord

Chancellor provide otherwise.

15

(4C)   

Regulations under subsection (4B) may, in particular, include—

(a)   

provision for an exception to arise where a determination has

been made by a person specified in the regulations,

(b)   

provision requiring the court, when it orders the payment of

a sum that includes a sum in respect of legal costs, to include

20

a statement to that effect in the order, and

(c)   

provision that the court may not order the payment of a sum

in respect of legal costs exceeding an amount specified in the

regulations.”

Regulations

25

6     (1)  

Section 20 (regulations) is amended as follows.

      (2)  

In subsection (1) omit the words from “and the regulations” to the end.

      (3)  

After that subsection insert—

“(1A)   

The Lord Chancellor may by regulations—

(a)   

make provision as to the amounts that may be ordered to be

30

paid out of central funds in pursuance of a costs order,

whether by specifying rates or scales or by making other

provision as to the calculation of the amounts,

(b)   

make provision as to the circumstances in which and

conditions under which such amounts may be paid or

35

ordered to be paid,

(c)   

make provision requiring amounts required to be paid out of

central funds by a costs order to be calculated having regard

to regulations under paragraphs (a) and (b),

(d)   

make provision requiring amounts required to be paid to a

40

person out of central funds by a relevant costs order to be

calculated in accordance with such regulations (whether or

not that results in the fixing of an amount that the court

considers reasonably sufficient or necessary to compensate

the person), and

45

 
 

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

145

 

(e)   

make provision as to the review of determinations of

amounts required to be paid out of central funds by costs

orders.

(1B)   

In subsection (1A)(d) “relevant costs order” means a costs order

other than—

5

(a)   

an order made by any court under section 17, and

(b)   

so much of a costs order made by the Supreme Court as

relates to expenses, fees, costs, trouble or losses incurred in

proceedings in that court.

(1C)   

Regulations under subsection (1A) may, in particular—

10

(a)   

make different provision in relation to amounts to be paid in

respect of different expenses, fees, costs, trouble and losses,

(b)   

make different provision in relation to different costs orders

and different areas, and

(c)   

make different provision in relation to the fixing of an

15

amount in a costs order and the fixing of an amount by means

of a determination.”

      (4)  

In subsection (3)—

(a)   

for “subsection (1)” substitute “subsection (1A)”,

(b)   

for “rates or scales of allowances” substitute “provision as to the

20

calculation of amounts”, and

(c)   

after “order” insert “(whether in the form of rates or scales or other

provision)”.

Interpretation

7     (1)  

Section 21 (interpretation) is amended as follows.

25

      (2)  

In subsection (4) after “16” insert “, 16A”.

      (3)  

In subsection (4A)(a) after “16” insert “, 16A”.

Supplementary

8     (1)  

Section 29 (regulations) is amended as follows.

      (2)  

For subsection (1) substitute—

30

“(1)   

A power to make regulations under this Act is exercisable by

statutory instrument.

(1A)   

A statutory instrument containing regulations under this Act is

subject to annulment in pursuance of a resolution of either House of

Parliament, subject to subsection (1B).

35

(1B)   

A statutory instrument containing (whether alone or with other

provision) regulations under section 16A(6) or 19(4B) may not be

made unless a draft of the instrument has been laid before, and

approved by a resolution of, each House of Parliament.”

      (3)  

In subsection (2) for “Any such regulations” substitute “Regulations under

40

this Act”.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 2 — Attorney General’s references

146

 

Part 2

Attorney General’s references

Reference of point of law following acquittal on indictment

9     (1)  

Section 36 of the Criminal Justice Act 1972 (reference of point of law

following acquittal on indictment) is amended as follows.

5

      (2)  

In subsection (5) omit “to his costs, that is to say”.

      (3)  

Omit subsection (5A).

      (4)  

After that subsection insert—

“(5A)   

Subsection (5) has effect subject to—

(a)   

subsection (5B), and

10

(b)   

regulations under section 20(1A)(d) of the Prosecution of

Offences Act 1985 (as applied by this section).

(5B)   

A person is not entitled under subsection (5) to the payment of sums

in respect of legal costs (as defined in section 16A of the Prosecution

of Offences Act 1985) incurred in proceedings in the Court of Appeal.

15

(5C)   

Subsections (1A) to (1C) and (3) of section 20 of the Prosecution of

Offences Act 1985 (regulations as to amounts ordered to be paid out

of central funds) apply in relation to amounts payable out of central

funds under subsection (5) as they apply in relation to amounts

payable out of central funds in pursuance of costs orders made under

20

section 16 of that Act.”

10         

In consequence of the amendments made by paragraph 9, omit paragraph 8

of Schedule 1 to the Prosecution of Offences Act 1985.

Reference of sentence of Crown Court appearing to be unduly lenient

11    (1)  

Schedule 3 to the Criminal Justice Act 1988 (reference of sentence of Crown

25

Court appearing to be unduly lenient) is amended as follows.

      (2)  

In paragraph 11 (recovery of costs of representation)—

(a)   

number the existing provision sub-paragraph (1),

(b)   

in that sub-paragraph, omit “to his costs, that is to say”, and

(c)   

after that sub-paragraph insert—

30

    “(2)  

Sub-paragraph (1) has effect subject to—

(a)   

sub-paragraph (3), and

(b)   

regulations under section 20(1A)(d) of the

Prosecution of Offences Act 1985 (as applied by this

paragraph).

35

      (3)  

A person is not entitled under sub-paragraph (1) to the

payment of sums in respect of legal costs (as defined in

section 16A of the Prosecution of Offences Act 1985)

incurred in proceedings in the Court of Appeal.

      (4)  

Subsections (1A) to (1C) and (3) of section 20 of the

40

Prosecution of Offences Act 1985 (regulations as to

amounts ordered to be paid out of central funds) apply in

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 3 — Extradition Act 2003

147

 

relation to funds payable out of central funds under sub-

paragraph (1) as they apply in relation to amounts payable

out of central funds in pursuance of costs orders made

under section 16 of that Act.”

      (3)  

In paragraph 12 (application to Northern Ireland)—

5

(a)   

for “11”, in each place, substitute “11(1)”, and

(b)   

after sub-paragraph (d) insert—

“(e)   

paragraph 11 has effect as if sub-paragraphs (2) to

(4) were omitted.”

Part 3

10

Extradition Act 2003

Introduction

12         

The Extradition Act 2003 is amended as follows.

Extradition to Category 1 Territories

13    (1)  

Section 61 (costs where discharge ordered) is amended as follows.

15

      (2)  

After subsection (5) insert—

“(5A)   

In England and Wales, an order under subsection (5) is to be made,

and the appropriate amount is to be determined, in accordance with

sections 62A and 62B.

(5B)   

In Scotland and Northern Ireland, an order under subsection (5) is to

20

be made, and the appropriate amount is to be determined, in

accordance with subsections (6) to (9).”

14         

In section 62 (supplementary provision about costs where discharge

ordered) omit subsections (1) and (2).

15         

After section 62 insert—

25

“62A    

Appropriate amount: England and Wales

(1)   

For the purposes of an order under section 61(5), the appropriate

amount is such amount as the judge or court making the order

considers reasonably sufficient to compensate the person in whose

favour the order is made for any expenses properly incurred by the

30

person in the proceedings under this Part.

(2)   

But if the judge or court considers that there are circumstances that

make it inappropriate for the person to recover the full amount

mentioned in subsection (1), the order under section 61(5) must be

for the payment out of money provided by Parliament of such lesser

35

amount as the judge or court considers just and reasonable.

(3)   

Subsections (1) and (2) have effect subject to—

(a)   

section 62B, and

(b)   

regulations under section 20(1A)(d) of the Prosecution of

Offences Act 1985 (as applied by this section).

40

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 3 — Extradition Act 2003

148

 

(4)   

When making an order under section 61(5), the judge or court must

fix the amount to be paid out of money provided by Parliament in the

order if the judge or court considers it appropriate to do so and—

(a)   

the person in whose favour the order is made agrees the

amount, or

5

(b)   

subsection (2) applies.

(5)   

Where the judge or court does not fix the amount to be paid out of

money provided by Parliament in the order—

(a)   

the judge or court must describe in the order any reduction

required under subsection (2), and

10

(b)   

the amount must be fixed by means of a determination made

by or on behalf of the judge or court in accordance with

procedures specified in regulations made by the Lord

Chancellor.

(6)   

Subsections (1A) to (1C) and (3) of section 20 of the Prosecution of

15

Offences Act 1985 (regulations as to amounts ordered to be paid out

of central funds) apply in relation to amounts payable out of money

provided by Parliament in pursuance of an order under section 61 as

they apply in relation to amounts payable out of central funds in

pursuance of costs orders made under section 16 of that Act.

20

(7)   

This section extends to England and Wales only.

62B     

Legal costs: England and Wales

(1)   

An order under section 61(5) may not require the payment out of

money provided by Parliament of an amount that includes an

amount in respect of legal costs incurred by the person in whose

25

favour the order is made, subject to the following provisions of this

section.

(2)   

Subsection (1) does not apply in relation to legal costs incurred in—

(a)   

proceedings in a magistrates’ court, or

(b)   

proceedings in the Supreme Court.

30

(3)   

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

removing an exception, and

(b)   

provision for an exception to arise where a determination has

35

been made by a person specified in the regulations.

(4)   

Regulations under subsection (3) may not remove or limit the

exception provided by subsection (2)(b).

(5)   

Where a judge or court makes an order under section 61(5) requiring

the payment out of money provided by Parliament of an amount that

40

includes an amount in respect of legal costs, the order must include

a statement to that effect.

(6)   

Where, in an order under section 61(5), a judge or court fixes an

amount to be paid out of money provided by Parliament that

includes an amount in respect of legal costs incurred in proceedings

45

in a court other than the Supreme Court, the latter amount must not

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 3 — Extradition Act 2003

149

 

exceed an amount specified by regulations made by the Lord

Chancellor.

(7)   

In this section—

“legal costs” means fees, charges, disbursements and other

amounts payable in respect of advocacy services or litigation

5

services including, in particular, expert witness costs;

“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;

10

“expert witness costs” means amounts payable in respect of the

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

15

reasonable to expect a person who is exercising, or

contemplating exercising, a right to conduct litigation in

relation to proceedings, or contemplated proceedings, to

provide.

(8)   

This section extends to England and Wales only.”

20

Extradition to Category 2 Territories

16    (1)  

Section 134 (costs where discharge ordered) is amended as follows.

      (2)  

After subsection (5) insert—

“(5A)   

In England and Wales, an order under subsection (5) is to be made,

and the appropriate amount is to be determined, in accordance with

25

sections 135A and 135B.

(5B)   

In Scotland and Northern Ireland, an order under subsection (5) is to

be made, and the appropriate amount is to be determined, in

accordance with subsections (6) to (9).”

17         

In section 135 (supplementary provision about costs where discharge

30

ordered) omit subsections (1) and (2).

18         

After section 135 insert—

“135A   

Appropriate amount: England and Wales

(1)   

For the purposes of an order under section 134(5), the appropriate

amount is such amount as the judge or court making the order

35

considers reasonably sufficient to compensate the person in whose

favour the order is made for any expenses properly incurred by the

person in the proceedings under this Part.

(2)   

But if the judge or court considers that there are circumstances that

make it inappropriate for the person to recover the full amount

40

mentioned in subsection (1), the order under section 134(5) must be

for the payment out of money provided by Parliament of such lesser

amount as the judge or court considers just and reasonable.

(3)   

Subsections (1) and (2) have effect subject to—

(a)   

section 135B, and

45

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Costs in criminal cases
Part 3 — Extradition Act 2003

150

 

(b)   

regulations under section 20(1A)(d) of the Prosecution of

Offences Act 1985 (as applied by this section).

(4)   

When making an order under section 134(5), the judge or court must

fix the amount to be paid out of money provided by Parliament in the

order if the judge or court considers it appropriate to do so and—

5

(a)   

the person in whose favour the order is made agrees the

amount, or

(b)   

subsection (2) applies.

(5)   

Where the judge or court does not fix the amount to be paid out of

money provided by Parliament in the order—

10

(a)   

the judge or court must describe in the order any reduction

required under subsection (2), 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.

15

(6)   

Subsections (1A) to (1C) and (3) of section 20 of the Prosecution of

Offences Act 1985 (regulations as to amounts ordered to be paid out

of central funds) apply in relation to amounts payable out of money

provided by Parliament in pursuance of an order under section 134

as they apply in relation to amounts payable out of central funds in

20

pursuance of costs orders made under section 16 of that Act.

(7)   

This section extends to England and Wales only.

135B    

Legal costs: England and Wales

(1)   

An order under section 134(5) may not require the payment out of

money provided by Parliament of an amount that includes an

25

amount in respect of legal costs incurred by the person in whose

favour the order is made, subject to the following provisions of this

section.

(2)   

Subsection (1) does not apply in relation to legal costs incurred in—

(a)   

proceedings in a magistrates’ court, or

30

(b)   

proceedings in the Supreme Court.

(3)   

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

removing an exception, and

35

(b)   

provision for an exception to arise where a determination has

been made by a person specified in the regulations.

(4)   

Regulations under subsection (3) may not remove or limit the

exception provided by subsection (2)(b).

(5)   

Where a judge or court in England and Wales makes an order under

40

section 134(5) requiring the payment out of money provided by

Parliament of an amount that includes an amount in respect of legal

costs, the order must include a statement to that effect.

(6)   

Where, in an order under section 134(5), a judge or court fixes an

amount to be paid out of money provided by Parliament that

45

includes an amount in respect of legal costs incurred in proceedings

 
 

 
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