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

(3) Condition A is that the accused is an individual and the order is
made under—

(a) section 16(1),

(b) section 16(3), or

(c) 5section 16(4)(a)(ii) or (iii) or (d).

(4) Condition 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
10108 of the Magistrates’ Courts Act 1980 (right of appeal
against 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
15exceptions from the prohibition in subsection (1), including—

(a) provision 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) 20Regulations under subsection (6) may not remove or limit the
exception 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
25effect.

(9) Where, 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
30regulations made by the Lord Chancellor.

(10) 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;

• 35“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
  40services 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
  45contemplating exercising, a right to conduct litigation in
  relation to proceedings, or contemplated proceedings, to
  provide.”

Prosecution costs

4 (1) Section 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) 5Where the court considers that there are circumstances that make it
inappropriate for the prosecution to recover the full amount
mentioned 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) 10When 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
appropriate to do so and—

(a) the prosecutor agrees the amount, or

(b) subsection (2A) applies.

(2C) 15Where the court does not fix the amount to be paid out of central
funds in the order—

(a) it must describe in the order any reduction required under
subsection (2A), and

(b) the amount must be fixed by means of a determination made
20by or on behalf of the court in accordance with procedures
specified in regulations made by the Lord Chancellor.”

(4) Omit 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
25amended as follows.

(2) After subsection (3) insert—

“(3ZA) In 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) 30the 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
35accordingly.”

(3) After 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) 40After subsection (4) insert—

“(4A) Subsection (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
Chancellor provide otherwise.

(4C) 5Regulations 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
a sum that includes a sum in respect of legal costs, to include
10a 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.”

Regulations

6 (1) 15Section 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) make provision as to the amounts that may be ordered to be
20paid 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
conditions under which such amounts may be paid or
25ordered 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) make provision requiring amounts required to be paid to a
30person 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
the person), and

(e) 35make 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
other than—

(a) 40an 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) Regulations under subsection (1A) may, in particular—

(a) 45make 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) make different provision in relation to the fixing of an
amount in a costs order and the fixing of an amount by means
5of a determination.”

(4) In 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) 10after “order” insert “(whether in the form of rates or scales or other
provision)”.

Interpretation

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

(2) In subsection (4) after “16” insert “, 16A”.

(3) 15In subsection (4A)(a) after “16” insert “, 16A”.

Supplementary

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
20statutory instrument.

(1A) A 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
25provision) 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) In subsection (2) for “Any such regulations” substitute “Regulations under
this Act”.

30Part 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
following acquittal on indictment) is amended as follows.

(2) 35In 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) subsection (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
5in respect of legal costs (as defined in section 16A of the Prosecution
of 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
10funds under subsection (5) as they apply in relation to amounts
payable 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.

15Reference of sentence of Crown Court appearing to be unduly lenient

11 (1) Schedule 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) 20in that sub-paragraph, omit “to his costs, that is to say”, and

(c) after 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
25Prosecution of Offences Act 1985 (as applied by this
paragraph).

(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)
30incurred in proceedings in the Court of Appeal.

(4) 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 funds payable out of central funds under sub-
35paragraph (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) In paragraph 12 (application to Northern Ireland)—

(a) for “11”, in each place, substitute “11(1)”, and

(b) 40after sub-paragraph (d) insert—

“(e) paragraph 11 has effect as if sub-paragraphs (2) to
(4) were omitted.”

Part 3 Extradition Act 2003

Introduction

12 The Extradition Act 2003 is amended as follows.

5Extradition to Category 1 Territories

13 (1) Section 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
10sections 62A and 62B.

(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).”

14 In section 62 (supplementary provision about costs where discharge
15ordered) omit subsections (1) and (2).

15 After 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
20considers 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
make it inappropriate for the person to recover the full amount
25mentioned in subsection (1), the order under section 61(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) section 62B, and

(b) 30regulations under section 20(1A)(d) of the Prosecution of
Offences 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) 35the 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
money provided by Parliament in the order—

(a) 40the 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 judge or court in accordance with
procedures specified in regulations made by the Lord
Chancellor.

(6) 5Subsections (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
10pursuance 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
15amount 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) 20proceedings 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) 25provision 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
30the 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
35includes 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—

• 40“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
  45contemplating exercising, a right of audience in relation to
  any proceedings, or contemplated proceedings, to provide;

Legal Aid, Sentencing and Punishment of Offenders BillPage 177

• “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;

• 5“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) 10This 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,
15and 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 20In 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
25amount 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
30make 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) 35section 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
40order 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
money provided by Parliament in the order—

(a) the judge or court must describe in the order any reduction
required under subsection (2), and

(b) 5the 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.

(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
10of central funds) apply in relation to amounts payable out of money
provided by Parliament in pursuance of an order under section 134
as 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 15Legal costs: England and Wales

(1) An order under section 134(5) may not require the payment out of
money 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
20section.

(2) Subsection (1) does not apply in relation to legal costs incurred in—

(a) proceedings in a magistrates’ court, or

(b) proceedings in the Supreme Court.

(3) The Lord Chancellor may by regulations make provision about
25exceptions from the prohibition in subsection (1), including—

(a) provision 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.

(4) 30Regulations 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 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
35must include a statement to that effect.

(6) Where, in an order under section 134(5), a judge or court fixes an
amount 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
40exceed an amount specified by regulations made by the Lord
Chancellor.

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

• “legal costs” means fees, charges, disbursements and other
  amounts payable in respect of advocacy services or litigation
  45services including, in particular, expert witness costs;

• “advocacy services” means any services which it would be
  reasonable to expect a person who is exercising, or

  Legal Aid, Sentencing and Punishment of Offenders BillPage 179

  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
  services of an expert witness, including amounts payable in
  5connection 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
  contemplating exercising, a right to conduct litigation in
  10relation to proceedings, or contemplated proceedings, to
  provide.

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

Regulations

19 In section 223(6) (orders and regulations subject to affirmative procedure), at
15the appropriate places insert—

• “section 62B(3)”;

• “section 135B(3)”.

Part 4 Savings

20 20The amendments made by paragraphs 2 to 5 do not have effect in relation to
costs 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
25the relevant day.

22 The 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,
30means the day on which the amendment comes into force.

24 For 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
35notice 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
40such 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
45for leave to appeal is made.