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

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

5was withdrawn because of the offender’s conduct,”.

Part 2 Repeals consequential on Part 1 of this Schedule

Section 52

SCHEDULE 6 Costs in criminal cases

Part 1 Prosecution of Offences Act 1985

5Introduction

1 The Prosecution of Offences Act 1985 is amended as follows.

Defence costs

2 (1) Section 16 (defence costs) is amended as follows.

(2) After subsection (6) insert—

“(6A) 10Where the court considers that there are circumstances that make it

inappropriate for the accused to recover the full amount mentioned

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) 15Subsections (6) and (6A) have effect subject to—

(a) section 16A, and

(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

20appropriate to do so and—

(a) the accused agrees the amount, or

(b) subsection (6A) applies.

(6D) Where the court does not fix the amount to be paid out of central

funds in the order—

(a) 25it must describe in the order any reduction required under

subsection (6A), 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.”

(3) Omit subsections (7) and (9).

Legal costs

3 After section 16 insert—

“16A Legal costs

(1) 5A defendant’s costs order may not require the payment out of central

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) 10Condition A is that the accused is an individual and the order is

made under—

(a) section 16(1),

(b) section 16(3), or

(c) section 16(4)(a)(ii) or (iii) or (d).

(4) 15Condition B is that the accused is an individual and the legal costs

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

20against conviction or sentence).

(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) 25provision amending this section by adding, modifying or

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

30exception provided by condition C.

(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) 35Where, in a defendant’s costs order, a court fixes an amount to be

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) 40In 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;

Legal Aid, Sentencing and Punishment of Offenders BillPage 144

• “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;

• 5“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
  
  10reasonable to expect a person who is exercising, or
  
  contemplating exercising, a right to conduct litigation in
  
  relation to proceedings, or contemplated proceedings, to
  
  provide.”

Prosecution costs

4 (1) 15Section 17 (prosecution costs) is amended as follows.

(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

20mentioned in subsection (1), an order under this section must be for

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

25appropriate to do so and—

(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) 30it must describe in the order any reduction required under

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) 35Omit subsections (3) and (4).

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) 40In relation to a sum that may be required by a court other than the

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

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) 5After subsection (3C) insert—

“(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) 10Subsection (4) has effect subject to regulations under section

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

15Chancellor provide otherwise.

(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

20a sum that includes a sum in respect of legal costs, to include

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.”

25Regulations

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) 30make provision as to the amounts that may be ordered to be

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

35conditions under which such amounts may be paid or

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) 40make provision requiring amounts required to be paid to a

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

45the person), and

(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

5other than—

(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) 10Regulations under subsection (1A) may, in particular—

(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) 15make different provision in relation to the fixing of an

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) 20for “rates or scales of allowances” substitute “provision as to the

calculation of amounts”, and

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

provision)”.

Interpretation

7 (1) 25Section 21 (interpretation) is amended as follows.

(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) 30For subsection (1) substitute—

“(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

35Parliament, subject to subsection (1B).

(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) 40In subsection (2) for “Any such regulations” substitute “Regulations under

this Act”.

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

5following acquittal on indictment) is amended as follows.

(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) 10subsection (5B), and

(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

15of Offences Act 1985) incurred in proceedings in the Court of Appeal.

(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

20payable out of central funds in pursuance of costs orders made under

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) 25Schedule 3 to the Criminal Justice Act 1988 (reference of sentence of Crown

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) 30after that sub-paragraph insert—

“(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

35paragraph).

(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) 40Subsections (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 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) 5In paragraph 12 (application to Northern Ireland)—

(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.”

10Part 3 Extradition Act 2003

Introduction

12 The Extradition Act 2003 is amended as follows.

Extradition to Category 1 Territories

13 (1) 15Section 61 (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

sections 62A and 62B.

(5B) 20In 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).”

14 In section 62 (supplementary provision about costs where discharge

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

15 25After section 62 insert—

“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

30favour 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

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

35for 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 62B, and

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

40Offences Act 1985 (as applied by this section).

(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

5amount, 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—

(a) the judge or court must describe in the order any reduction

10required under subsection (2), and

(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) 15Subsections (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 61 as

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

20pursuance of costs orders made under section 16 of that Act.

(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

25amount 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

(b) 30proceedings 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

(b) 35provision 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 makes an order under section 61(5) requiring

40the 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 61(5), a judge or court fixes an

amount to be paid out of money provided by Parliament that

45includes an amount in respect of legal costs incurred in proceedings

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