Legal Aid, Sentencing and Punishment of Offenders Bill (HC Bill 205)

exceed an amount specified by regulations made by the Lord
Chancellor.

(7) In this section—

• “legal costs” means fees, charges, disbursements and other
  5amounts payable in respect of advocacy services or litigation
  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
  10any proceedings, or contemplated proceedings, to provide;

• “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;

• 15“litigation services” means any services which it would be
  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) 20This section extends to England and Wales only.”

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,
25and the appropriate amount is to be determined, in accordance with
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 30In section 135 (supplementary provision about costs where discharge
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
35amount 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
person in the proceedings under this Part.

(2) But if the judge or court considers that there are circumstances that
40make it inappropriate for the person to recover the full amount
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) 45section 135B, and

(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
5order 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

(b) subsection (2) applies.

(5) Where the judge or court does not fix the amount to be paid out of
10money provided by Parliament in the order—

(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
15specified in regulations made by the Lord Chancellor.

(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
20as they apply in relation to amounts payable out of central funds in
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
25money provided by Parliament of an amount that includes an
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) 30proceedings in a magistrates’ court, or

(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
35removing an exception, and

(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) 40Where a judge or court in England and Wales makes an order under
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
45amount to be paid out of money provided by Parliament 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.

(7) In this section “legal costs” means—

• 5“legal costs” means fees, charges, disbursements and other
  amounts payable in respect of advocacy services or litigation
  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
  10contemplating 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
  services of an expert witness, including amounts payable in
  connection with attendance by the witness at court or
  15elsewhere;

• “litigation services” means any services which it would be
  reasonable to expect a person who is exercising, or
  contemplating exercising, a right to conduct litigation in
  relation to proceedings, or contemplated proceedings, to
  20provide.

(8) This section extends to England and Wales only.”

Regulations

19 In section 223(6) (orders and regulations subject to affirmative procedure), at
the appropriate places insert—

• 25“section 62B(3)”;

• “section 135B(3)”.

Part 4 Savings

20 The amendments made by paragraphs 2 to 5 do not have effect in relation to
30costs orders made by a court in proceedings which commenced before the
relevant day.

21 The amendments made by paragraphs 9 to 11 do not have effect in relation
to a person’s entitlement to costs in connection with a reference made before
the relevant day.

22 35The amendments made by paragraphs 12 to 19 do not have effect in relation
to orders made by a judge or court in proceedings which commenced before
the relevant day.

23 In paragraphs 20 to 22 “the relevant day”, in relation to an amendment,
means the day on which the amendment comes into force.

24 40For the purposes of paragraphs 20 and 22—

(a) proceedings commence in a magistrates’ court when a warrant,
requisition or summons relating to the proceedings is issued;

(b) proceedings commence on an appeal to the Crown Court when a
notice of appeal is served;

(c) other proceedings commence in the Crown Court when they are
committed, transferred or sent to that court;

(d) proceedings commence in the High Court when an application for
leave to appeal by way of case stated is made or (in the absence of
5such an application) when notice of appeal is given;

(e) proceedings commence in the Court of Appeal when an application
for leave to appeal is made or (in the absence of such an application)
when notice of appeal is given;

(f) proceedings commence in the Supreme Court when an application
10for leave to appeal is made.

Section 52

SCHEDULE 7 Costs in criminal cases: service courts

Part 1 Appeals from Court Martial

15Introduction

1 Part 2 of the Court Martial Appeals Act 1968 (appeals from Court Martial) is
amended as follows.

Costs of successful appellant

2 (1) Section 31 (costs of successful appellant) is amended as follows.

(2) 20In subsection (1) omit “other than an appeal against sentence”.

(3) In subsection (2), at the end insert “, subject to subsection (3), section 31A and
regulations under section 33B(1)(d).”

(4) After subsection (2) insert—

“(3) Where the Appeal Court consider that there are circumstances that
25make it inappropriate for the appellant to recover the whole of the
sums mentioned in subsection (2), a direction under this section must
be for the payment of such lesser sums as they consider just and
reasonable.

(4) The Appeal Court must fix the sums to be paid by the Secretary of
30State in the direction if they consider it appropriate to do so and—

(a) the appellant agrees the sums, or

(b) subsection (3) applies.

(5) Where the Appeal Court do not fix the sums to be paid by the
Secretary of State in the direction—

(a) 35they must describe in the direction any reduction required
under subsection (3), and

(b) the sums must be fixed by means of a determination made by
or on behalf of the Appeal Court in accordance with
procedures specified in regulations made by the Lord
40Chancellor.”

Legal costs

3 After section 31 insert—

“31A Legal costs

(1) The costs which the Appeal Court may direct the Secretary of State
5to pay under section 31 do not include legal costs, except where
regulations made by the Lord Chancellor provide otherwise.

(2) Regulations under this section 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) 10provision requiring the Appeal Court, when they direct the
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and

(c) provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
15specified in the regulations.

(3) In this section—

• “legal costs” means fees, charges, disbursements and other
  amounts payable in respect of advocacy services or litigation
  services including, in particular, expert witness costs;

• 20“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
  25services 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
  30contemplating exercising, a right to conduct litigation in
  relation to proceedings, or contemplated proceedings, to
  provide.”

Witnesses’ expenses

4 (1) Section 33 (witnesses’ expenses) is amended as follows.

(2) 35In subsection (1), at the end insert “, subject to subsection (3) and regulations
under section 33B”.

(3) At the end insert—

“(3) Sums ordered to be paid out of money provided by Parliament
under subsection (1) may not include sums in respect of expert
40witness costs (as defined in section 31A), unless regulations made by
the Lord Chancellor provide otherwise.”

Expenses of appellant not in custody

5 (1) Section 33A (appellant’s expenses) is amended as follows.

(2) Number the existing provision subsection (1).

(3) After that subsection insert—

“(2) The expenses which the Appeal Court may direct the Secretary of
State to pay under this section do not include legal costs (as defined
in section 31A), except where regulations made by the Lord
5Chancellor provide otherwise.

(3) Regulations under this section 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 Appeal Court, when they direct the
10payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and

(c) provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
specified in the regulations.”

15Further provision about costs

6 After section 33A insert—

“33B Further provision about costs

(1) The Lord Chancellor may by regulations—

(a) make provision as to the sums that may be directed or
20ordered to be paid under section 31, 33 or 33A, whether by
specifying rates or scales or by making other provision as to
the calculation of the sums,

(b) make provision as to the circumstances in which and
conditions under which such sums may be paid or directed
25or ordered to be paid,

(c) make provision requiring such sums to be fixed having
regard to regulations under paragraphs (a) and (b),

(d) make provision requiring such sums to be calculated in
accordance with such regulations (whether or not that results
30in the fixing of an amount that the court considers reasonably
sufficient to compensate the person concerned), and

(e) make provision as to the review of determinations of sums
directed to be paid under section 31.

(2) Regulations under this section may provide that provision as to the
35calculation of sums (whether in the form of rates or scales or other
provision) may be determined by the Lord Chancellor with the
consent of the Treasury.”

Regulations

7 After section 33B insert—

“33C 40Regulations

(1) Regulations under sections 31, 31A, 33, 33A and 33B may, in
particular—

(a) make different provision in relation to different cases and
different classes of case, including different provision in

relation to different expenses, trouble and loss, different
directions and orders and different areas, and

(b) make different provision in relation to the fixing of a sum in
a direction or order and the fixing of a sum by means of a
5determination.

(2) A power to make regulations under those sections is exercisable by
statutory instrument.

(3) A statutory instrument containing regulations under those sections
is subject to annulment in pursuance of a resolution of either House
10of Parliament, subject to subsection (4).

(4) A statutory instrument containing (whether alone or with other
provision) regulations under section 31A, 33 or 33A may not be made
unless a draft of the instrument has been laid before, and approved
by a resolution of, each House of Parliament.”

15Consequential repeal

8 In consequence of the amendment made by paragraph 2(2), omit paragraph
1(6) of Schedule 2 to the Armed Forces Act 1971.

Part 2 Appeals from Court Martial Appeal Court

20Introduction

9 Part 3 of the Court Martial Appeals Act 1968 (appeals from Court Martial
Appeal Court) is amended as follows.

Application to Appeal Court

10 Before section 47 insert—

“46A 25Costs: application to Appeal Court by Director of Service Prosecutions

(1) Where the Appeal Court dismiss an application for leave to appeal
to the Supreme Court made by the Director of Service Prosecutions,
the Appeal Court may direct the payment by the Secretary of State of
such sums as appear to them to be reasonably sufficient to
30compensate the accused for any expenses properly incurred by the
accused in resisting the application, subject to—

(a) subsection (2), and

(b) regulations under section 47A(1)(d).

(2) The sums which the Appeal Court may direct the Secretary of State
35to pay do not include legal costs (as defined in section 31A), except
where regulations made by the Lord Chancellor provide otherwise.

(3) Regulations under subsection (2) 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) 40provision requiring the Appeal Court, when they direct the
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and

(c) provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
specified in the regulations.

46B Costs: application to Appeal Court by accused

5Where the Appeal Court dismiss an application for leave to appeal
to the Supreme Court made by the accused—

(a) the Appeal Court may make the like order as may be made
by the Court under section 32(1) of this Act where they
dismiss an application for leave to appeal to the Court,

(b) 10an order made under this section may be enforced in the
manner described in section 32(2) of this Act, and

(c) section 32(3) of this Act applies in relation to any sum
recovered by virtue of section 32(2)(a) (as applied by this
section).”

15Application to Supreme Court

11 (1) Section 47 (costs) is amended as follows.

(2) In subsections (1) and (2) omit “the Appeal Court or” (in each place).

(3) After subsection (2) insert—

“(2A) Section 32(3) of this Act applies in relation to any sum recovered by
20virtue of section 32(2)(a) (as applied by subsection (2)).”

(4) In subsection (3), at the end insert “subject to—

subsection (3A), and

(b) regulations under section 47A(1)(d).”

(5) After subsection (3) insert—

“(3A) 25The costs which the Supreme Court may direct the Secretary of State
to pay do not include legal costs (as defined in section 31A) incurred
in proceedings in a court below, except where regulations made by
the Lord Chancellor provide otherwise.

(3B) Regulations under subsection (3A) may, in particular, include—

(a) 30provision for an exception to arise where a determination has
been made by a person specified in the regulations,

(b) provision requiring the Supreme Court, when they direct the
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and

(c) 35provision that the Supreme Court may not direct the
payment of a sum in respect of legal costs exceeding an
amount specified in the regulations.”

(6) In subsection (4) for “the foregoing provisions of” substitute “sections 46A,
46B and”.

12 40Accordingly, in the heading of section 47, at the end insert “: application to
Supreme Court”.

Further provision about costs

13 After section 47 insert—

“47A Further provision about costs

(1) The Lord Chancellor may by regulations—

(a) 5make provision as to the sums that may be directed to be paid
under section 46A or 47(3), whether by specifying rates or
scales or by making other provision as to the calculation of
the sums,

(b) make provision as to the circumstances in which and
10conditions under which such sums may be paid or directed
to be paid,

(c) make provision requiring such sums to be fixed having
regard to regulations under paragraphs (a) and (b), and

(d) make provision requiring such sums to be calculated in
15accordance with such regulations (whether or not that results
in the fixing of an amount that the court considers reasonably
sufficient to compensate the person concerned).

(2) The power under subsection (1)(d) may not be exercised in respect of
sums ordered to be paid by the Supreme Court in respect of expenses
20incurred in proceedings before that court.

(3) Regulations under this section may provide that provision as to the
calculation of sums (whether in the form of rates or scales or other
provision) may be determined by the Lord Chancellor with the
consent of the Treasury.”

25Regulations

14 After section 47A insert—

“47B Regulations

(1) Regulations under sections 46A, 47 and 47A may, in particular, make
different provision in relation to different cases and different classes
30of case, including different provision in relation to different
expenses, trouble and loss, different directions and orders and
different areas.

(2) A power to make regulations under those sections is exercisable by
statutory instrument.

(3) 35A statutory instrument containing regulations under those sections
is subject to annulment in pursuance of a resolution of either House
of Parliament, subject to subsection (4).

(4) A statutory instrument containing (whether alone or with other
provision) regulations under section 46A or 47 may not be made
40unless a draft of the instrument has been laid before, and approved
by a resolution of, each House of Parliament.”

Part 3 Savings

15 The amendments made by this Schedule do not have effect in relation to
directions and orders made by a court in proceedings commenced before the
5relevant day.

16 For the purposes of paragraph 15—

(a) “the relevant day”, in relation to an amendment, means the day on
which the amendment comes into force;

(b) proceedings commence in the Court Martial Appeal Court when an
10application for leave to appeal is made or (in the absence of such an
application) when notice of appeal is given;

(c) proceedings commence in the Supreme Court when an application
for leave to appeal is made.

Section 57

SCHEDULE 8 15Changes to powers to make suspended sentence orders: consequential and
transitory provision

Part 1 Consequential amendments

Powers of Criminal Courts (Sentencing) Act 2000 (c.6)2000 (c.6)

1 20In section 163 of the Powers of Criminal Courts (Sentencing) Act 2000 omit
the definition of “operational period”.

Criminal Justice Act 2003 (c. 44)2003 (c. 44)

2 The Criminal Justice Act 2003 is amended as follows.

3 For the heading of Chapter 3 of Part 12 substitute “SUSPENDED
25SENTENCE ORDERS”.

4 In section 190(2) (limits on power to impose requirements by suspended
sentence order), for “189(1)(a)” substitute “189(1A)”.

5 In section 191(1) (power to provide for review of suspended sentence order),
after “suspended sentence order” insert “that imposes one or more
30community requirements”.

6 (1) Section 195 (interpretation of Chapter 3) is amended as follows.

(2) For the definition of “operational period” and “supervision period”
substitute—

• ““operational period”, in relation to a suspended sentence, has
  35the meaning given by section 189(1)(a);”.

(3) After the definition of “sentence of imprisonment” insert—

• “supervision period”, in relation to a suspended sentence, has
  the meaning given by section 189(1A).”