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

Section 59

SCHEDULE 8 Costs in criminal cases: service courts

Part 1 Appeals from Court Martial

5Introduction

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) 10In 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
15make 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
20State 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) 25they 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
30Chancellor.”

Legal costs

3 After section 31 insert—

“31A Legal costs

(1) The costs which the Appeal Court may direct the Secretary of State
35to 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) provision 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
5of a sum in respect of legal costs exceeding an amount
specified in the regulations.

(3) In this section—

• “legal costs” means fees, charges, disbursements and other
  amounts payable in respect of advocacy services or litigation
  10services 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
  any proceedings, or contemplated proceedings, to provide;

• 15“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
  20reasonable to expect a person who is exercising, or
  contemplating exercising, a right to conduct litigation in
  relation to proceedings, or contemplated proceedings, to
  provide.”

Witnesses’ expenses

4 (1) 25Section 33 (witnesses’ expenses) is amended as follows.

(2) In 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
30under subsection (1) may not include sums in respect of expert
witness 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) 35Number 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
40Chancellor 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
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
5of a sum in respect of legal costs exceeding an amount
specified in the regulations.”

Further provision about costs

6 After section 33A insert—

“33B Further provision about costs

(1) 10The Lord Chancellor may by regulations—

(a) make provision as to the sums that may be directed or
ordered 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) 15make provision as to the circumstances in which and
conditions under which such sums may be paid or directed
or ordered to be paid,

(c) make provision requiring such sums to be fixed having
regard to regulations under paragraphs (a) and (b),

(d) 20make provision requiring such sums 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 to compensate the person concerned), and

(e) make provision as to the review of determinations of sums
25directed to be paid under section 31.

(2) 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.”

30Regulations

7 After section 33B insert—

“33C Regulations

(1) Regulations under sections 31, 31A, 33, 33A and 33B may, in
particular—

(a) 35make 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
40a direction or order and the fixing of a sum by means of a
determination.

(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
of Parliament, subject to subsection (4).

(4) A statutory instrument containing (whether alone or with other
5provision) 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.”

Consequential repeal

8 In consequence of the amendment made by paragraph 2(2), omit paragraph
101(6) of Schedule 2 to the Armed Forces Act 1971.

Part 2 Appeals from Court Martial Appeal Court

Introduction

9 Part 3 of the Court Martial Appeals Act 1968 (appeals from Court Martial
15Appeal Court) is amended as follows.

Application to Appeal Court

10 Before section 47 insert—

“46A Costs: application to Appeal Court by Director of Service Prosecutions

(1) Where the Appeal Court dismiss an application for leave to appeal
20to 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
compensate the accused for any expenses properly incurred by the
accused in resisting the application, subject to—

(a) 25subsection (2), and

(b) regulations under section 47A(1)(d).

(2) The sums which the Appeal Court may direct the Secretary of State
to pay do not include legal costs (as defined in section 31A), except
where regulations made by the Lord Chancellor provide otherwise.

(3) 30Regulations 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) provision requiring the Appeal Court, when they direct the
payment of a sum that includes a sum in respect of legal
35costs, 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

40Where 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) an order made under this section may be enforced in the
5manner 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).”

Application to Supreme Court

11 (1) 10Section 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
virtue of section 32(2)(a) (as applied by subsection (2)).”

(4) 15In subsection (3), at the end insert “subject to—

subsection (3A), and

(b) regulations under section 47A(1)(d).”

(5) After subsection (3) insert—

“(3A) The costs which the Supreme Court may direct the Secretary of State
20to 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) provision for an exception to arise where a determination has
25been 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) provision that the Supreme Court may not direct the
30payment 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 Accordingly, in the heading of section 47, at the end insert “: application to
35Supreme Court”.

Further provision about costs

13 After section 47 insert—

“47A Further provision about costs

(1) The Lord Chancellor may by regulations—

(a) 40make 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
conditions under which such sums may be paid or directed
5to 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
accordance with such regulations (whether or not that results
10in 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
incurred in proceedings before that court.

(3) 15Regulations 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.”

Regulations

14 20After 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
of case, including different provision in relation to different
25expenses, 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) A statutory instrument containing regulations under those sections
30is 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
unless a draft of the instrument has been laid before, and approved
35by 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
40relevant 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
application 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
5for leave to appeal is made.

Section 64

SCHEDULE 9 Changes to powers to make suspended sentence orders: consequential and
transitory provision

Part 1 10Consequential amendments

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

1 In 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 15The Criminal Justice Act 2003 is amended as follows.

3 For the heading of Chapter 3 of Part 12 substitute “SUSPENDED
SENTENCE ORDERS”.

4 In section 190(2) (limits on power to impose requirements by suspended
sentence order), for “189(1)(a)” substitute “189(1A)”.

5 20In section 191(1) (power to provide for review of suspended sentence order),
after “suspended sentence order” insert “that imposes one or more
community requirements”.

6 (1) Section 195 (interpretation of Chapter 3) is amended as follows.

(2) For the definition of “operational period” and “supervision period”
25substitute—

• ““operational period”, in relation to a suspended sentence, has
  the 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
  30the meaning given by section 189(1A).”

7 (1) Section 196 (meaning of “relevant order”) is amended as follows.

(2) In the heading, after ““relevant order”” insert “etc”.

(3) After subsection (1) insert—

“(1A) In this Chapter “suspended sentence order” means a suspended
35sentence order that imposes one or more community requirements.”

8 In section 200(4) (supervision period and operational period where unpaid
work requirement imposed by suspended sentence order)—

(a) for “189(1)(a)” substitute “189(1A)”, and

(b) for “189(1)(b)(ii)” substitute “189(1)(a)”.

9 In section 213(3)(d) (supervision requirement: meaning of “relevant period”)
for “189(1)(a)” substitute “189(1A)”.

10 (1) 5Paragraph 8 of Schedule 12 (powers of court in case of breach of community
requirement or conviction of further offence) is amended as follows.

(2) In sub-paragraph (2), at the beginning of paragraph (c) insert “in the case of
a suspended sentence order that imposes one or more community
requirements,”.

(3) 10After that paragraph insert—

“(d) in the case of a suspended sentence order that does not
impose any community requirements, the court may, subject
to section 189(3), amend the order by extending the
operational period.”

(4) 15In sub-paragraph (4)(a), for “the community requirements” substitute “any
community requirements”.

(5) In sub-paragraph (8), for “the community” substitute “any community”.

11 In Part 3 of Schedule 12 (amendment of suspended sentence order), before
paragraph 13 (and before the italic heading before that paragraph) insert—

20“Application of Part

12B This Part of this Schedule applies only in relation to a suspended
sentence order that imposes one or more community
requirements.”

12 (1) Schedule 13 (transfer of suspended sentence orders to Scotland or Northern
25Ireland) is amended as follows.

(2) In paragraph 1(1) (suspended sentence order in respect of an offender
residing in Scotland)—

(a) after “a suspended sentence order” in the first place those words
appear insert “that imposes one or more community requirements”,
30and

(b) before “a suspended sentence order” in the second place those words
appear insert “such”.

(3) In paragraph 6(1) (suspended sentence order in respect of an offender
residing in Northern Ireland)—

(a) 35after “a suspended sentence order” in the first place those words
appear insert “that imposes one or more community requirements”,
and

(b) before “a suspended sentence order” in the second place those words
appear insert “such”.

40Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (S.I. 2005/643S.I. 2005/643)

13 In the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order
2005 omit—

(a) article 2(2) (modifications to section 189 of the Criminal Justice Act
2003 pending the commencement of the repeal of section 78 of the
Powers of Criminal Courts (Sentencing) Act 2000), and

(b) article 3(2)(a) (modifications to section 189 of the Criminal Justice Act
52003 pending the commencement of section 61 of the Criminal
Justice and Court Services Act 2000).

Armed Forces Act 2006 (c. 52)2006 (c. 52)

14 The Armed Forces Act 2006 is amended as follows.

15 (1) Section 200 (suspended sentence orders with or without community
10requirements) is amended as follows.

(2) In the heading omit “with or without community requirements”.

(3) Omit subsections (1) to (4) (power of relevant service court to make
suspended sentence order with or without community requirements, and
meanings of those terms).

(4) 15In subsection (5) (modification of section 189(1) of the Criminal Justice Act
2003 in its application to a relevant service court)—

(a) for “(b)(ii)” substitute “(a)”,

(b) for “the end of sub-paragraph (ii)” substitute ““imprisonment),””,
and

(c) 20in the words treated as substituted, for “(a)” substitute “(i)” and for
“(b)” substitute “(ii)”.

(5) After subsection (6) insert—

“(7) In this Chapter “a suspended sentence order with community
requirements” means a suspended sentence order that imposes one
25or more community requirements within the meaning of section
189(7)(c) of the 2003 Act.”

16 Omit section 201 (provisions of the Criminal Justice Act 2003 that do not
apply to suspended sentence orders without community requirements).

17 In section 207 (definitions for purposes of Chapter 4 of Part 8)—

(a) 30in the definition of “suspended sentence order with community
requirements” for “200(3)” substitute “200(7)”, and

(b) omit the definition of “suspended sentence order without
community requirements”.

18 (1) Schedule 7 (suspended prison sentence: further conviction or breach of
35requirement) is amended as follows.

(2) For the heading before paragraph 1 substitute “Modifications of Part 2 of
Schedule 12 to the 2003 Act”.

(3) In paragraph 1 (modifications of Part 2 of Schedule 12 to the Criminal Justice
Act 2003 in case of suspended sentence orders with community
40requirements) omit “with community requirements”.

(4) Omit paragraph 2 (modifications of Part 2 of Schedule 12 to the Criminal
Justice Act 2003 in case of suspended sentence orders without community
requirements) and the heading before that paragraph.

(5) After paragraph 6 insert—

“6A Paragraph 8(2)(ba) of that Schedule has effect as if at the beginning
there were inserted “where the court dealing with the offender is
the Crown Court,”.”

5Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059SI 2009/1059)

19 In Schedule 2 to the Armed Forces Act 2006 (Transitional Provisions etc)
Order 2009 omit paragraph 2(2) (modifications to section 189 of the Criminal
Justice Act 2003 pending the commencement of the repeal of section 78 of the
Powers of Criminal Courts (Sentencing) Act 2000).

10Armed Forces Act 2011

20 In Schedule 3 to the Armed Forces Act 2011 (minor amendments of service
legislation), in paragraph 17 (amendment to section 200(5) of the Armed
Forces Act 2006) omit “paragraph (b) of”.

Part 2 15Transitory provision

21 In relation to any time before the coming into force of section 61 of the
Criminal Justice and Court Services Act 2000 (abolition of sentences of
detention in a young offender institution, custody for life etc), section 189 of
the Criminal Justice Act 2003 has effect with the following modifications—

(a) 20in subsection (1), after the first “imprisonment” insert “or, in the case
of a person aged at least 18 but under 21, a sentence of detention in a
young offender institution”,

(b) in that subsection, after the second “imprisonment” insert “or
detention in a young offender institution”, and

(c) 25in subsection (1B), after “imprisonment” insert “or detention in a
young offender institution”.

Section 82

SCHEDULE 10 Repeal of sections 181 to 188 of the Criminal Justice Act 2003: consequential
amendments

30Prison Act 1952 (c. 52)1952 (c. 52)

1 Omit section 49(4A) of the Prison Act 1952 (persons unlawfully at large).

Criminal Justice Act 1961 (c. 39)1961 (c. 39)

2 In section 23 of the Criminal Justice Act 1961 (prison rules)—

(a) in subsection (3), for “Subject to subsection (3A), the days” substitute
35“The days”;

(b) omit subsection (3A).