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Legal Aid, Sentencing and Punishment of Offenders BillPage 10

(h) such other proceedings, before any court, tribunal or other person, as
may be prescribed.

14 Advice and assistance for criminal proceedings

(1) Regulations may provide that prescribed advice and assistance is to be
5available under this Part to an individual described in subsection (2) if—

(a) prescribed conditions are met, and

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withdrawn the determination).

(2) 10Those individuals are—

(a) individuals who are involved in investigations which may lead to
criminal 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
15proceedings, and

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

(3) When 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
20regulations having regard, in particular, to the interests of justice.

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

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

(b) criteria set out in the regulations.

(6) 25The regulations may make provision about the making and withdrawal of
determinations under the regulations.

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

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

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be made and withdrawn in writing, by telephone or by other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

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

(d) provision for a determination to be disregarded for the purposes of this
35Part 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
before a determination is made,

(f) provision about the circumstances in which a determination may or
40must be withdrawn,

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

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

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(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
with requirements imposed by or under this Part.

(9) The regulations may provide for the review of, or appeals to a court, tribunal
5or 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
10advocacy.

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,
15and

(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
20under 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
25Part (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) 30any 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) 35make 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—

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
10provisionally or otherwise) in accordance with—

(a) section 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) 15whether, if any matter arising in the proceedings is decided against the
individual, 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) 20whether the individual may be unable to understand the proceedings
or 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
25represented.

(3) The 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
30taken to be in the interests of justice for the purposes of a determination under
section 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
35under this Part for representation for the purposes of the proceedings.

17 Determinations 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
40regulations under section 18.

(2) A 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) 45Regulations under subsection (3) may, in particular, include—

Legal Aid, Sentencing and Punishment of Offenders BillPage 13

(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
5prescribed 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) 10provision 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,

(h) 15provision requiring individuals who are the subject of a determination
to 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
20continue to be made available, to an individual under this Part for the
purposes 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) 25An appeal lies to such court, tribunal or other person as may be prescribed
against 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) 30Regulations may provide for exceptions from subsection (6).

(8) This 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) 35references in this section to a decision do not include a decision made
as part of such a determination.

18 Determinations by court

(1) Regulations may—

(a) provide that a court before which criminal proceedings take place, or
40are to take place, is authorised to determine whether an individual
qualifies 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) 45The regulations may, in particular, include—

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

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

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

(d) 5provision 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
regulations to be exercised by a single justice of the peace for the area,
10and

(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
to whether the individual who is the subject of the determination has complied
15with 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
be made available, or to continue to be made available, to an individual under
20this 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
determination and accordingly—

(a) 25references 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 Provisional determinations

(1) 30Regulations 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
criminal proceedings,

(b) 35the 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) provision about the stage in an investigation at which a provisional
40determination 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) provision about the circumstances in which a provisional
45determination is to cease to be provisional, and

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(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) In this Part, as it applies in connection with a provisional determination made
5under 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 10Financial resources

(1) A 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) 15Regulations may—

(a) make 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
20of regulations under subsection (2), as having or not having financial resources
of 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) 25Regulations may make provision about the making and withdrawal of
determinations 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
30withdrawn in writing, by telephone or by other prescribed means,

(c) provision 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
35must be withdrawn,

(f) provision 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) 40provision for the review of a determination in respect of an individual’s
financial 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.

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(8) In this section “relevant determination” means a determination that is required
to 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 5Information 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) the Commissioners for Her Majesty’s Revenue and Customs (“the
10Commissioners”).

(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) An information request made to the Secretary of State or a relevant Northern
15Ireland 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) a relevant individual’s date of birth;

(d) 20a 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
request the disclosure of some or all of the following information—

(a) 25whether 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
profession or was doing so at a time specified in the request;

(d) 30the 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) information of a prescribed description.

(5) 35The 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) Information may not be prescribed under subsection (4)(h) without the
40Commissioners’ 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) In this section—

25Contributions 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) 30The 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) 35pay 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,

40the 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) 45provide for an individual’s liability under the regulations to make a
payment to change or cease in prescribed circumstances,

Legal Aid, Sentencing and Punishment of Offenders BillPage 18

(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
prescribed person, and

(d) 5provide 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
of a prescribed description.

(7) 10Regulations 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
payable entirely or partly—

(a) 15by periodical payments;

(b) by one or more lump sums;

(c) out of income;

(d) out of capital.

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

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

(10) 25The 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
required by the regulations to be made by the individual until after the
30time 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) must make provision for the repayment to an individual of any amount
35in 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—

Legal Aid, Sentencing and Punishment of Offenders BillPage 19

23 Enforcement

(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
5connection with the enforcement of an individual’s obligation to make a
payment 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) 10provide that overdue amounts are recoverable as if they were payable
under 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
15and documents to be provided.

(5) Schedule 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) 20any property recovered or preserved by the individual in proceedings,
or 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
25with such proceedings or such a dispute.

(2) Those 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) 30other amounts payable by the individual in connection with the
services 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) 35provision as to whether the charge is in favour of the Lord Chancellor
or 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
40proceedings or as part of a compromise or settlement of a dispute, and
costs 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,

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