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).”