SCHEDULE 6 continued PART 1 continued
Contents page 50-58 60-69 70-79 80-89 90-99 100-116 117-119 120-129 130-139 140-149 150-159 160-169 170-179 180-189 190-199 200-201 Last page
Legal Aid, Sentencing and Punishment of Offenders BillPage 150
(1B)
In subsection (1A)(d) “relevant costs order” means a costs order
other 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
5relates to expenses, fees, costs, trouble or losses incurred in
proceedings in that court.
(1C) Regulations 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)
10make different provision in relation to different costs orders
and different areas, and
(c)
make 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) 15In subsection (3)—
(a) for “subsection (1)” substitute “subsection (1A)”,
(b)
for “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
20provision)”.
7 (1) Section 21 (interpretation) is amended as follows.
(2) In subsection (4) after “16” insert “, 16A”.
(3) In subsection (4A)(a) after “16” insert “, 16A”.
8 (1) Section 29 (regulations) is amended as follows.
(2) For subsection (1) substitute—
“(1)
A power to make regulations under this Act is exercisable by
statutory instrument.
(1A)
30A 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).
(1B)
A statutory instrument containing (whether alone or with other
provision) regulations under section 16A(6) or 19(4B) may not be
35made 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
this Act”.
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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.
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
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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.”
12 The Extradition Act 2003 is amended as follows.
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—
(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).
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(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.
(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
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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.”
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—
(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
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(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.
(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 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
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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.”
19
In section 223(6) (orders and regulations subject to affirmative procedure), at
the appropriate places insert—
25“section 62B(3)”;
“section 135B(3)”.
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;
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(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
1
Part 2 of the Court Martial Appeals Act 1968 (appeals from Court Martial) is
amended as follows.
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.”
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3 After section 31 insert—
(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.”
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(1)(d)”.
(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.”
5 (1) Section 33A (appellant’s expenses) is amended as follows.
(2) Number the existing provision subsection (1).
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(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.”
6 After section 33A insert—
(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.”
7 After section 33B insert—
(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