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

14 Advice and assistance for criminal proceedings

(1) Regulations may provide that prescribed advice and assistance is to be
available under this Part to an individual described in subsection (2) if—

(a) prescribed conditions are met, and

(b) 5the Director has determined that the individual qualifies for such
advice and assistance in accordance with the regulations (and has not
withdrawn the determination).

(2) Those individuals are—

(a) individuals who are involved in investigations which may lead to
10criminal proceedings (other than individuals arrested and held in
custody at a police station or other premises),

(b) individuals who are before a court, tribunal or other person in criminal
proceedings, and

(c) individuals who have been the subject of criminal proceedings.

(3) 15When making the regulations, the Lord Chancellor must have regard, in
particular, to the interests of justice.

(4) The regulations must require the Director to make determinations under the
regulations having regard, in particular, to the interests of justice.

(5) The regulations may require the Director to make such determinations in
20accordance with—

(a) section 20 (financial resources) and regulations under that section, and

(b) criteria set out in the regulations.

(6) The regulations may make provision about the making and withdrawal of
determinations under the regulations.

(7) 25The regulations may, in particular, include—

(a) provision about the form and content of determinations and
applications for determinations,

(b) provision permitting or requiring applications and determinations to
be made and withdrawn in writing, by telephone or by other
30prescribed means,

(c) provision setting time limits for applications and determinations,

(d) provision for a determination to be disregarded for the purposes of this
Part if made in response to an application that is made otherwise than
in accordance with the regulations,

(e) 35provision about conditions which must be satisfied by an applicant
before a determination is made,

(f) provision about the circumstances in which a determination may or
must be withdrawn,

(g) provision requiring information and documents to be provided, and

(h) 40provision requiring individuals who are the subject of a determination
to be informed of the reasons for making or withdrawing the
determination.

(8) The circumstances prescribed under subsection (7)(f) may, in particular, relate
to whether the individual who is the subject of the determination has complied
45with requirements imposed by or under this Part.

(9) The regulations may provide for the review of, or appeals to a court, tribunal
or other person against, a decision by the Director—

(a) that the interests of justice do not require advice or assistance to be
made available to an individual under the regulations, or

(b) that criteria prescribed under subsection (5)(b) are not met.

(10) In this section “assistance” includes, in particular, assistance in the form of
5advocacy.

15 Representation for criminal proceedings

(1) Representation for the purposes of criminal proceedings is to be available
under this Part to an individual if—

(a) the individual is a specified individual in relation to the proceedings,
10and

(b) the relevant authority has determined (provisionally or otherwise) that
the individual qualifies for such representation in accordance with this
Part (and has not withdrawn the determination).

(2) Representation for the purposes of criminal proceedings is to be available
15under this Part to an individual if—

(a) the proceedings involve the individual resisting an appeal to the
Crown Court otherwise than in an official capacity, and

(b) the relevant authority has determined (provisionally or otherwise) that
the individual qualifies for such representation in accordance with this
20Part (and has not withdrawn the determination).

(3) Where an individual qualifies under this Part for representation for the
purposes of criminal proceedings (“the principal proceedings”), representation
is also to be available to the individual for the purposes of—

(a) any related bail proceedings, and

(b) 25any preliminary or incidental proceedings.

(4) Regulations may—

(a) make provision specifying whether proceedings are or are not to be
regarded as preliminary or incidental for the purposes of subsection (3),
and

(b) 30make provision for exceptions from subsection (3).

(5) Regulations under subsection (4)(b) may, in particular, make exceptions for
proceedings taking place more than a prescribed period of time before or after
the principal proceedings.

(6) In this section—

• 35“the relevant authority”, in relation to a specified individual and criminal
  proceedings, means the person who is authorised by or under section
  17, 18 or 19 to determine (provisionally or otherwise) whether the
  individual qualifies under this Part for representation for the purposes
  of the proceedings;

• 40“specified individual” means—

  (a)

  in relation to criminal proceedings mentioned in any of
  paragraphs (a) to (g) of section 13, an individual mentioned in
  that paragraph in relation to those proceedings, and

  (b)

  in relation to criminal proceedings prescribed by regulations
  45under section 13(h), a description of individual specified in the
  regulations in relation to those proceedings.

16 Qualifying for representation

(1) The relevant authority must determine whether an individual qualifies under
this Part for representation for the purposes of criminal proceedings (whether
provisionally or otherwise) in accordance with—

(a) 5section 20 (financial resources) and regulations under that section, and

(b) the interests of justice.

(2) In deciding what the interests of justice consist of for the purposes of such a
determination, the following factors must be taken into account—

(a) whether, if any matter arising in the proceedings is decided against the
10individual, the individual would be likely to lose his or her liberty or
livelihood or to suffer serious damage to his or her reputation,

(b) whether the determination of any matter arising in the proceedings
may involve consideration of a substantial question of law,

(c) whether the individual may be unable to understand the proceedings
15or to state his or her own case,

(d) whether the proceedings may involve the tracing, interviewing or
expert cross-examination of witnesses on behalf of the individual, and

(e) whether it is in the interests of another person that the individual be
represented.

(3) 20The Lord Chancellor may by order amend subsection (2) by adding or varying
a factor.

(4) Regulations may prescribe circumstances in which making representation
available to an individual for the purposes of criminal proceedings is to be
taken to be in the interests of justice for the purposes of a determination under
25section 15.

(5) In this section “the relevant authority”, in relation to an individual and criminal
proceedings, means the person who is authorised by or under section 17, 18 or
19 to determine (provisionally or otherwise) whether the individual qualifies
under this Part for representation for the purposes of the proceedings.

17 30Determinations by Director

(1) The Director is authorised to determine whether an individual qualifies under
this Part for representation for the purposes of criminal proceedings, except in
circumstances in which a court is authorised to make the determination under
regulations under section 18.

(2) 35A determination by the Director under section 15 must specify the criminal
proceedings.

(3) Regulations may make provision about the making and withdrawal of
determinations by the Director under that section.

(4) Regulations under subsection (3) may, in particular, include—

(a) 40provision about the form and content of determinations and
applications for determinations,

(b) provision permitting or requiring applications and determinations to
be made and withdrawn in writing, by telephone or by other
prescribed means,

(c) 45provision setting time limits for applications and determinations,

(d) provision for a determination to be disregarded for the purposes of this
Part if made in response to an application that is made otherwise than
in accordance with the regulations,

(e) provision about conditions which must be satisfied by an applicant
5before a determination is made,

(f) provision about the circumstances in which a determination may or
must be withdrawn,

(g) provision requiring information and documents to be provided,

(h) provision requiring individuals who are the subject of a determination
10to be informed of the reasons for making or withdrawing the
determination, and

(i) provision for the review of a decision by the Director that the interests
of justice do not require representation to be made available, or to
continue to be made available, to an individual under this Part for the
15purposes of criminal proceedings.

(5) The circumstances prescribed under subsection (4)(f) may, in particular, relate
to whether the individual who is the subject of the determination has complied
with requirements imposed by or under this Part.

(6) An appeal lies to such court, tribunal or other person as may be prescribed
20against a decision by the Director that the interests of justice do not require
representation to be made available, or to continue to be made available, to an
individual under this Part for the purposes of criminal proceedings, subject to
subsection (7).

(7) Regulations may provide for exceptions from subsection (6).

(8) 25This section does not authorise the Director to make a provisional
determination and accordingly—

(a) references in this section to a determination do not include a
provisional determination, and

(b) references in this section to a decision do not include a decision made
30as part of such a determination.

18 Determinations by court

(1) Regulations may—

(a) provide that a court before which criminal proceedings take place, or
are to take place, is authorised to determine whether an individual
35qualifies under this Part for representation for the purposes of criminal
proceedings of a prescribed description, and

(b) make provision about the making and withdrawal of such
determinations by a court.

(2) The regulations may, in particular, include—

(a) 40provision about the form and content of determinations and
applications for determinations,

(b) provision permitting or requiring applications and determinations to
be made and withdrawn in writing, by telephone or by other
prescribed means,

(c) 45provision setting time limits for applications and determinations,

(d) provision enabling a court to determine that an individual qualifies
under this Part for representation for the purposes of criminal
proceedings before another court,

(e) provision for the powers of a magistrates’ court of any area under the
5regulations to be exercised by a single justice of the peace for the area,
and

(f) provision about the circumstances in which a determination may or
must be withdrawn.

(3) The circumstances prescribed under subsection (2)(f) may, in particular, relate
10to whether the individual who is the subject of the determination has complied
with requirements imposed by or under this Part.

(4) The regulations must provide that, subject to prescribed exceptions, an appeal
lies to such court, tribunal or other person as may be prescribed against a
decision by a court that the interests of justice do not require representation to
15be made available, or to continue to be made available, to an individual under
this Part for the purposes of criminal proceedings.

(5) The regulations may include consequential provision modifying an Act or
instrument.

(6) Regulations under this section may not authorise a court to make a provisional
20determination and accordingly—

(a) references in this section to a determination do not include a
provisional determination, and

(b) references in this section to a decision do not include a decision made
as part of such a determination.

19 25Provisional determinations

(1) Regulations may provide that the Director or a court may make a provisional
determination that an individual qualifies under this Part for representation
for the purposes of criminal proceedings where—

(a) the individual is involved in an investigation which may result in
30criminal proceedings,

(b) the determination is made for the purposes of criminal proceedings
that may result from the investigation, and

(c) any prescribed conditions are met.

(2) The regulations may, in particular, include—

(a) 35provision about the stage in an investigation at which a provisional
determination may be made,

(b) provision about the making and withdrawal of provisional
determinations, including provision equivalent to that described in
section 17(4)(a) to (i) and (5),

(c) 40provision about the circumstances in which a provisional
determination is to cease to be provisional, and

(d) provision about the circumstances in which a provisional
determination is to be treated as if it were a determination made by the
Director or a court in reliance on section 17 or 18.

(3) 45In this Part, as it applies in connection with a provisional determination made
under regulations under this section as to whether an individual qualifies for
representation for the purposes of criminal proceedings, references to

proceedings include criminal proceedings that may result from the
investigation concerned.

Financial resources

20 Financial resources

(1) 5A person may not make a relevant determination that an individual qualifies
under this Part for services unless the person has determined that the
individual’s financial resources are such that the individual is eligible for the
services (and has not withdrawn the determination).

(2) Regulations may—

(a) 10make provision about when an individual’s financial resources are
such that the individual is eligible under this Part for services, and

(b) make provision for exceptions from subsection (1).

(3) Regulations may provide that an individual is to be treated, for the purposes
of regulations under subsection (2), as having or not having financial resources
15of a prescribed description.

(4) The regulations may, in particular, provide that the individual is to be treated
as having prescribed financial resources of a person of a prescribed
description.

(5) Regulations may make provision about the making and withdrawal of
20determinations under this section.

(6) Regulations under subsection (5) may, in particular, include—

(a) provision about the form and content of determinations,

(b) provision permitting or requiring determinations to be made and
withdrawn in writing, by telephone or by other prescribed means,

(c) 25provision setting time limits for determinations,

(d) provision about conditions which must be satisfied before a
determination is made,

(e) provision about the circumstances in which a determination may or
must be withdrawn,

(f) 30provision requiring information and documents to be provided,

(g) provision requiring individuals who are the subject of a determination
to be informed of the reasons for making or withdrawing the
determination, and

(h) provision for the review of a determination in respect of an individual’s
35financial resources.

(7) The circumstances prescribed under subsection (6)(e) may, in particular, relate
to whether the individual who is the subject of the determination has complied
with requirements imposed by or under this Part.

(8) In this section “relevant determination” means a determination that is required
40to be carried out in accordance with this section by—

(a) section 10 or 16, or

(b) regulations under section 12 or 14 or paragraph 4 of Schedule 3.

21 Information about financial resources

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

(a) the Secretary of State,

(b) a relevant Northern Ireland Department, or

(c) 5the Commissioners for Her Majesty’s Revenue and Customs (“the
Commissioners”).

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

(3) 10An information request made to the Secretary of State or a relevant Northern
Ireland Department under this section may request the disclosure of some or
all of the following information—

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

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

(c) 15a 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) information of a prescribed description.

(4) An information request made to the Commissioners under this section may
20request 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) the name and address of the employer;

(c) whether or not a relevant individual is carrying on a business, trade or
25profession 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) a relevant individual’s national insurance number;

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

(h) 30information of a prescribed description.

(5) The information that may be prescribed under subsections (3)(f) and (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) 35Information may not be prescribed under subsection (4)(h) without the
Commissioners’ 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 section.

(8) 40In this section—

• “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
  45or jointly,

  Legal Aid, Sentencing and Punishment of Offenders BillPage 17

  (c)

  in 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
  5elements, what those elements are and the amount included in
  respect of each element in calculating the benefit amount;

• “the relevant authority” means—

  (a)

  a prescribed person, or

  (b)

  in relation to circumstances for which no person is prescribed,
  10the Director;

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

  (a)

  that individual, and

  (b)

  15any other individual whose financial resources are or may be
  relevant 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.

20Contributions and costs

22 Payment for services

(1) An individual for whom services are made available under this Part is not to
be required to make a payment in connection with the provision of the services,
except where regulations provide otherwise.

(2) 25The regulations may, in particular, provide that in prescribed circumstances an
individual must do one or more of the following—

(a) pay the cost of the services;

(b) pay a contribution in respect of the cost of the services of a prescribed
amount;

(c) 30pay a prescribed amount in respect of administration costs.

(3) The regulations may, in particular, provide that where—

(a) civil legal services are provided to an individual under this Part in
relation to a dispute, and

(b) prescribed conditions are met,

35the individual must pay a prescribed amount which may exceed the cost of the
civil legal services provided.

(4) The regulations may, in particular, make provision about the determination of
the cost of services for the purposes of the regulations.

(5) The regulations may, in particular—

(a) 40provide for an individual’s liability under the regulations to make a
payment to change or cease in prescribed circumstances,

(b) provide for an individual’s liability under the regulations to arise on a
determination by a prescribed person,

(c) provide for such a determination to be varied or withdrawn by a
45prescribed person, and

(d) provide for the review of such a determination in respect of an
individual’s liability to make a payment.

(6) The regulations may, in particular, provide that an individual is to be treated,
for the purposes of the regulations, as having or not having financial resources
5of a prescribed description.

(7) Regulations under subsection (6) may, in particular, provide that the
individual is to be treated as having prescribed financial resources of a person
of a prescribed description.

(8) The regulations may, in particular, include provision for an amount to be
10payable entirely or partly—

(a) by periodical payments;

(b) by one or more lump sums;

(c) out of income;

(d) out of capital.

(9) 15The regulations may, in particular, include—

(a) provision requiring information and documents to be provided,

(b) provision about the time and manner in which payments must be
made,

(c) provision about the person to whom payments must be made, and

(d) 20provision about what that person must do with the payments.

(10) The regulations may, in particular, make provision for the payment by an
individual of interest, on such terms as may be prescribed, in respect of—

(a) a loan made to the individual under this Part,

(b) a payment in connection with the provision of services which is not
25required by the regulations to be made by the individual until after the
time when the services are provided, and

(c) so much of a payment as remains unpaid after the time when it is
required by the regulations to be made by the individual.

(11) The regulations—

(a) 30must make provision for the repayment to an individual of any amount
in excess of the individual’s liability under the regulations or under
section 23, and

(b) may make provision for the payment of interest on the excess.

(12) In this section—

• 35“administration costs” means costs in connection with the administration
  of legal aid, including the administration of charges arising under
  section 24;

• “prescribed amount” includes an amount calculated in a prescribed
  manner.

23 40Enforcement

(1) Regulations may make provision about the enforcement of an obligation to
make a payment imposed under section 22.

(2) The regulations may, in particular, make provision for costs incurred in
connection with the enforcement of an individual’s obligation to make a
45payment to be recovered from the individual.

(3) Regulations under this section may, in particular—

(a) provide that overdue amounts are recoverable summarily as a civil
debt;

(b) provide that overdue amounts are recoverable as if they were payable
5under an order of the High Court or a county court, if the court in
question so orders on the application of the person to whom the
amounts are due.

(4) Regulations under this section may include provision requiring information
and documents to be provided.

(5) 10Schedule 2 (criminal legal aid: motor vehicle orders) has effect.

24 Charges on property in connection with civil legal services

(1) Where civil legal services are made available for an individual under this Part,
the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings,
15or in any compromise or settlement of a dispute, in connection with
which the services were provided (whether the property is recovered or
preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection
with such proceedings or such a dispute.

(2) 20Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of
the services (except to the extent that they are recovered by other
means), and

(b) other amounts payable by the individual in connection with the
25services under section 22 or 23.

(3) Regulations may make provision for exceptions from subsection (1).

(4) Regulations may make provision about the charge under subsection (1)
including, in particular—

(a) provision as to whether the charge is in favour of the Lord Chancellor
30or a person by whom the services were made available, and

(b) provision about its enforcement.

(5) Regulations under subsection (4)(b) may, in particular, include—

(a) provision requiring amounts recovered by the individual in
proceedings or as part of a compromise or settlement of a dispute, and
35costs payable to the individual, to be paid to the Lord Chancellor or a
person by whom the services were made available,

(b) provision about the time and manner in which the amounts must be
paid,

(c) provision about what the Lord Chancellor or the person by whom the
40services were made available must do with the amounts,

(d) provision for the payment of interest on all or part of the amounts,

(e) provision for the payment to the individual concerned of any amount
in excess of the amounts described in subsection (2), and

(f) provision for the enforcement of requirements described in paragraph
45(a).