Legal Aid, Sentencing and Punishment of Offenders Bill (HL Bill 109)

Crime and Disorder Act 1998 (c. 37)Crime and Disorder Act 1998 (c. 37)

46 The Crime and Disorder Act 1998 is amended as follows.

47 (1) Section 50 (early administrative hearings) is amended as follows.

(2) In subsection (2)—

(a) 5after “this section” insert “—

(a)”, and

(b) for the words from “to be granted” to the end substitute “to be
provided with representation for the purposes of the proceedings
under Part 1 of the Legal Aid, Sentencing and Punishment of
10Offenders Act 2011, and

“(b) if he indicates that he does, the necessary
arrangements must be made for him to apply for it
and, where appropriate, obtain it.”

(3) Omit subsection (2A).

48 15In section 51B(6)(b) (effect of notice given under section 51B in serious or
complex fraud cases) for “paragraph 2 of Schedule 3 to the Access to Justice
Act 1999” substitute “regulations under section 18 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011”.

49 In section 52A(7) (matters to which reporting restrictions do not apply) for
20paragraph (h) substitute—

“(h) whether, for the purposes of the proceedings, representation
was provided to the accused or any of the accused under Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
Act 2011.”

50 25In paragraph 3(8) of Schedule 3 (matters to which reporting restrictions do
not apply) for paragraph (g) substitute—

“(g) whether, for the purposes of the proceedings,
representation was provided to the accused or any of the
accused under Part 1 of the Legal Aid, Sentencing and
30Punishment of Offenders Act 2011.”

Access to Justice Act 1999 (c. 22)Access to Justice Act 1999 (c. 22)

51 In the Access to Justice Act 1999 omit—

(a) sections 1 to 26 and Schedules 1 to 3A (legal aid), and

(b) Part 2 of Schedule 14 (transitional provision: Legal Services
35Commission).

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

52 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

53 (1) Section 83(3) (exception to restriction on imposition of custodial sentence on
persons not legally represented) is amended as follows.

(2) 40In paragraph (a)—

(a) for the words from the beginning to “but the right” substitute
“representation was made available to him for the purposes of the

proceedings under Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011 but”, and

(b) for “to be granted such a right” substitute “for such representation”.

(3) In paragraph (aa) for “to be granted a right to it” substitute “for such
5representation”.

54 In section 155(8) (alteration of Crown Court sentence) for “under section
17(2) of the Access to Justice Act 1999” substitute “relating to a requirement
to make a payment under regulations under section 22 or 23 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2011”.

10Freedom of Information Act 2000 (c. 36)Freedom of Information Act 2000 (c. 36)

55 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
authorities) omit “The Legal Services Commission.”

International Criminal Court Act 2001 (c. 17)International Criminal Court Act 2001 (c. 17)

56 In section 6(2)(c) of the International Criminal Court Act 2001
15(supplementary provisions as to proceedings before competent court) for
“Access to Justice Act 1999 (c.22)1999 (c.22) (advice, assistance and representation)”
substitute “Legal Aid, Sentencing and Punishment of Offenders Act 2011”.

Anti-terrorism, Crime and Security Act 2001 (c. 24)Anti-terrorism, Crime and Security Act 2001 (c. 24)

57 In Schedule 4 to the Anti-terrorism, Crime and Security Act 2001 (extension
20of disclosure powers)—

(a) omit paragraph 47, and

(b) after paragraph 53D insert—

“53E Sections 33(2) and 34 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011.”

25Proceeds of Crime Act 2002 (c. 29)Proceeds of Crime Act 2002 (c. 29)

58 The Proceeds of Crime Act 2002 is amended as follows.

59 In section 245C(6)(b) (exclusion from property freezing order or prohibition
on dealing with property to which order applies) for “funded by the Legal
Services Commission or” substitute “made available under arrangements
30made for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011 or funded by”.

60 In section 252(4A)(b) (exclusion from restriction on dealing with property)
for “funded by the Legal Services Commission or” substitute “made
available under arrangements made for the purposes of Part 1 of the Legal
35Aid, Sentencing and Punishment of Offenders Act 2011 or funded by”.

Communications Act 2003 (c. 21)Communications Act 2003 (c. 21)

61 In section 119(7)(a) of the Communications Act 2003 (charges to recover
costs of assistance in proceedings)—

(a) for “section 10(7) of the Access to Justice Act 1999 (c.22)1999 (c.22)” substitute
40“section 24 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011”, and

(b) for “Legal Services Commission” substitute “Lord Chancellor”.

Extradition Act 2003 (c. 41)Extradition Act 2003 (c. 41)

62 The Extradition Act 2003 is amended as follows.

63 In section 45(7) (consent to extradition) for paragraph (a) substitute—

“(a) 5in England and Wales, representation for the purposes of
criminal proceedings provided under arrangements made
for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011;”.

64 In section 127(8) (consent to extradition: general) for paragraph (a)
10substitute—

“(a) in England and Wales, representation for the purposes of
criminal proceedings provided under arrangements made
for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011;”.

15Criminal Justice Act 2003 (c. 44)Criminal Justice Act 2003 (c. 44)

65 In section 71(8) of the Criminal Justice Act 2003 (matters to which reporting
restrictions do not apply) for paragraph (g) substitute—

“(g) whether, for the purposes of the proceedings, representation
was provided to the defendant or any of the defendants
20under Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011.”

Domestic Violence, Crime and Victims Act 2004 (c. 28)Domestic Violence, Crime and Victims Act 2004 (c. 28)

66 In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004
(authorities within remit of Commissioner for Victims and Witnesses) omit
25paragraph 21 (Legal Services Commission).

Equality Act 2006 (c. 3)Equality Act 2006 (c. 3)

67 In section 29(3) of the Equality Act 2006 (costs of Equality and Human Rights
Commission in providing legal assistance) for “section 11(4)(f) of the Access
to Justice Act 1999 (c. 22)1999 (c. 22) (recovery of costs in funded cases)” substitute
30“section 24 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011 (statutory charge in connection with civil legal aid)”.

Legal Services Act 2007 (c. 29)Legal Services Act 2007 (c. 29)

68 In section 194(6) of the Legal Services Act 2007 (payments in respect of pro
bono representation) for paragraph (b) substitute—

“(b) 35provided under arrangements made for the purposes of Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
Act 2011.”

Criminal Justice and Immigration Act 2008 (c. 4)Criminal Justice and Immigration Act 2008 (c. 4)

69 In paragraph 19(2) of Schedule 1 to the Criminal Justice and Immigration Act
402008 (preconditions to imposing local authority residence requirement or
fostering requirement) for paragraph (a) (but not the “or” following it)

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,”.

Equality Act 2010 (c. 15)Equality Act 2010 (c. 15)

70 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities) omit
“The Legal Services Commission.”

Terrorist Asset-Freezing etc Act 2010 (c. 38)2010 (c. 38)

71 10In section 23(1)(d) (general power to disclose information) omit “the Legal
Services Commission,”.

Part 2 Repeals consequential on Part 1 of this Schedule

Section 39

SCHEDULE 6 Northern Ireland: information about financial resources

Obtaining information

1 (1) The relevant authority may make an information request to—

(a) 5the Secretary of State,

(b) a relevant Northern Ireland Department, or

(c) the Commissioners for Her Majesty’s Revenue and Customs (“the
Commissioners”).

(2) An information request may be made under this paragraph only for the
10purposes of facilitating a determination about an individual’s financial
resources for the purposes of —

(a) the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
(S.I. 1981/228 (N.I. 8)S.I. 1981/228 (N.I. 8)), or

(b) the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435S.I. 2003/435)
15(N.I. 10)).

(3) An information request made to the Secretary of State or a relevant Northern
Ireland Department under this paragraph may request the disclosure of
some or all of the following information—

(a) a relevant individual’s full name and any previous names;

(b) 5a relevant individual’s address and any previous addresses;

(c) a relevant individual’s date of birth;

(d) a relevant individual’s national insurance number;

(e) a relevant individual’s benefit status at a time specified in the
request;

(f) 10information of a prescribed description.

(4) An information request made to the Commissioners under this paragraph
may request the disclosure of some or all of the following information—

(a) whether or not a relevant individual is employed or was employed
at a time specified in the request;

(b) 15the name and address of the employer;

(c) whether or not a relevant individual is carrying on a business, trade
or profession or was doing so at a time specified in the request;

(d) the name under which it is or was carried on;

(e) the address of any premises used for the purposes of carrying it on;

(f) 20a relevant individual’s national insurance number;

(g) a relevant individual’s benefit status at a time specified in the
request;

(h) information of a prescribed description.

(5) The information that may be prescribed under sub-paragraphs (3)(f) and
25(4)(h) includes, in particular, information relating to—

(a) prescribed income of a relevant individual for a prescribed period,
and

(b) prescribed capital of a relevant individual.

(6) Information may not be prescribed under sub-paragraph (4)(h) without the
30Commissioners’ consent.

(7) The Secretary of State, the relevant Northern Ireland Departments and the
Commissioners may disclose to the relevant authority information specified
in an information request made under this paragraph.

(8) In this paragraph—

• 35“benefit status”, in relation to an individual, means whether or not the
  individual is in receipt of a prescribed benefit or benefits and, if so—

  (a)

  which benefit or benefits the individual is receiving,

  (b)

  whether the individual is entitled to the benefit or benefits
  alone or jointly,

  (c)

  40in prescribed cases, the amount the individual is receiving by
  way of the benefit (or each of the benefits) (“the benefit
  amount”), and

  (d)

  in prescribed cases, where the benefit consists of a number of
  elements, what those elements are and the amount included
  45in respect of each element in calculating the benefit amount;

• “financial resources”, in relation to an individual, includes an
  individual’s means, disposable income and disposable capital;

• “the relevant authority” means—

  Legal Aid, Sentencing and Punishment of Offenders BillPage 167

  (a)

  a prescribed person, or

  (b)

  in relation to circumstances for which no person is
  prescribed, the chief executive of the Northern Ireland Legal
  Services Commission;

• 5“a relevant individual”, in relation to an information request under this
  paragraph for the purposes of a determination about an individual’s
  financial resources, means—

  (a)

  that individual, and

  (b)

  any other individual whose financial resources are or may be
  10relevant for the purposes of the determination;

• “relevant Northern Ireland Department” means the Department for
  Social Development in Northern Ireland or the Department of
  Finance and Personnel in Northern Ireland.

Restrictions on disclosing information

2 (1) 15A person to whom information is disclosed under paragraph 1 of this
Schedule or this sub-paragraph may disclose the information to any person
to whom its disclosure is necessary or expedient in connection with
facilitating a determination described in paragraph 1(2).

(2) A person to whom such information is disclosed must not—

(a) 20disclose the information other than in accordance with sub-
paragraph (1), or

(b) use the information other than for the purpose of facilitating a
determination described in paragraph 1(2).

(3) Sub-paragraph (2) does not prevent—

(a) 25the disclosure of information in accordance with an enactment or an
order of a court,

(b) the disclosure of information for the purposes of the investigation or
prosecution of an offence (or suspected offence) under the law of
England and Wales or Northern Ireland or any other jurisdiction,
30except as otherwise prescribed,

(c) the disclosure of information for the purposes of instituting, or
otherwise for the purposes of, proceedings before a court, or

(d) the disclosure of information which has previously been lawfully
disclosed to the public.

(4) 35A person who discloses or uses information in contravention of this
paragraph is guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not
exceeding 2 years or a fine (or both);

(b) on summary conviction—

(i) 40in England and Wales, to imprisonment for a term not
exceeding 12 months or a fine not exceeding the statutory
maximum (or both), and

(ii) in Northern Ireland, to imprisonment for a term not
exceeding 6 months or a fine not exceeding the statutory
45maximum (or both).

(5) It is a defence for a person charged with an offence under this paragraph to
prove that the person reasonably believed that the disclosure or use was
lawful.

(6) In this paragraph “enactment” includes—

(a) an enactment contained subordinate legislation (within the meaning
of the Interpretation Act 1978), and

(b) an enactment contained in, or in an instrument made under, an Act
5or Measure of the National Assembly for Wales or Northern Ireland
legislation.

(7) In relation to an offence under this paragraph committed before the
commencement of section 154(1) of the Criminal Justice Act 2003, the
reference in sub-paragraph (4)(b)(i) to 12 months has effect as if it were a
10reference to 6 months.

Power to make consequential and supplementary provision etc

3 (1) The Department of Justice in Northern Ireland may by regulations make
consequential, supplementary, incidental or transitional provision in
relation to this Schedule extending to Northern Ireland.

(2) 15The regulations may, in particular—

(a) amend, repeal, revoke or otherwise modify Northern Ireland
legislation passed before this Schedule comes into force or an
instrument made under such legislation, and

(b) include transitory or saving provision.

20Regulations

4 (1) In this Schedule “prescribed” means prescribed by regulations made by the
Department of Justice in Northern Ireland.

(2) The powers under this Schedule to make regulations are exercisable by
statutory rule for the purposes of the Statutory Rules (Northern Ireland)
25Order 1979 (S.I. 1979/1573 (N.I. 12)S.I. 1979/1573 (N.I. 12)).

(3) Regulations under this Schedule are subject to negative resolution within the
meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954,
subject to sub-paragraph (4).

(4) The following regulations may not be made unless a draft of the regulations
30has been laid before, and approved by a resolution of, the Northern Ireland
Assembly—

(a) the first regulations under paragraph 1, and

(b) regulations under paragraph 3 that amend or repeal Northern
Ireland legislation (whether alone or with other provision).

(5) 35Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the
purposes of sub-paragraph (4) in relation to the laying of a draft as it applies
in relation to the laying of a statutory document under an enactment (as
defined in that Act).

(6) Subsections (1) to (3) of section 40 apply in relation to regulations made
40under paragraph 1 or 2 of this Schedule as they apply in relation to
regulations made by the Lord Chancellor under this Part.

Section 59

SCHEDULE 7 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) 30Omit subsections (7) and (9).

Legal costs

3 After section 16 insert—

“16A Legal costs

(1) A defendant’s costs order may not require the payment out of central
35funds 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.