Legal Aid, Sentencing and Punishment of Offenders Bill (HL Bill 129)

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
under paragraph 1 or 2 of this Schedule as they apply in relation to
5regulations made by the Lord Chancellor under this Part.

Section 59

SCHEDULE 7 Costs in criminal cases

Part 1 Prosecution of Offences Act 1985

10Introduction

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) 15Where 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) 20Subsections (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
25appropriate 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) 30it 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) 35Omit 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
5funds 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.

(3) Condition A is that the accused is an individual and the order is
10made under—

(a) section 16(1),

(b) section 16(3), or

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

(4) Condition B is that the accused is an individual and the legal costs
15were 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
108 of the Magistrates’ Courts Act 1980 (right of appeal
against conviction or sentence).

(5) 20Condition C is that the legal costs were incurred in proceedings in
the Supreme Court.

(6) 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
25removing an exception, and

(b) provision for an exception to arise where a determination has
been made by a person specified in the regulations.

(7) Regulations under subsection (6) may not remove or limit the
exception provided by condition C.

(8) 30Where 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
effect.

(9) Where, in a defendant’s costs order, a court fixes an amount to be
35paid 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
regulations made by the Lord Chancellor.

(10) 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

  Legal Aid, Sentencing and Punishment of Offenders BillPage 182

  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.”

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) 15After subsection (2) insert—

“(2A) Where 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
20considers just and reasonable.

(2B) When 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) 25subsection (2A) applies.

(2C) Where 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) 30the 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.”

(4) Omit subsections (3) and (4).

Costs of witnesses and appellants not in custody

5 (1) 35Section 19 (provision for orders as to costs in other circumstances) is
amended 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
40under subsection (3)—

(a) the 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
accordingly.”

(3) After subsection (3C) insert—

“(3D) Regulations under subsection (3) may make provision generally or
5only in relation to particular descriptions of persons, expenses, fees,
costs, trouble or losses.”

(4) After subsection (4) insert—

“(4A) Subsection (4) has effect subject to regulations under section
20(1A)(d).

(4B) 10An 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) Regulations under subsection (4B) may, in particular, include—

(a) 15provision 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
a statement to that effect in the order, and

(c) 20provision 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) Section 20 (regulations) is amended as follows.

(2) 25In 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
paid out of central funds in pursuance of a costs order,
30whether 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
ordered to be paid,

(c) 35make 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
person out of central funds by a relevant costs order to be
40calculated 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) make provision as to the review of determinations of
45amounts 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) 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)”.

Interpretation

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”.

25Supplementary

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”.

Part 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
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.

Reference of sentence of Crown Court appearing to be unduly lenient

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

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.”

10Part 3 Extradition Act 2003

Introduction

12 The Extradition Act 2003 is amended as follows.

Extradition to Category 1 Territories

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—

“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
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).

(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.

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
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

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.”

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,
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—

“135A Appropriate amount: England and Wales

(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

(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.

135B Legal costs: England and Wales

(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