Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Northern Ireland: information about financial resources
195

Short title and chapter
Extent of repeal

Human Fertilisation and
Schedule 6, paragraph 38.

Embryology Act 2008 (c. 22)

Coroners and Justice Act 2009
Section 51.

(c. 25)
Sections 149 to 153.

5

Schedule 18.

Policing and Crime Act 2009
In Schedule 7, paragraphs 65 and 98.

(c. 26)

Schedule 6
Section 40

Northern Ireland: information about financial resources
10
Obtaining information
1     (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
15
Commissioners”).
      (2)
An information request may be made under this paragraph only for the
purposes of facilitating a determination about an individual’s financial
resources for the purposes of —
(a)
the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
20
(S.I. 1981/228 (N.I. 8)), or
(b)
the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435)
(N.I. 10)).
      (3)
An information request made to the Secretary of State or a relevant Northern
Ireland Department under this paragraph may request the disclosure of
25
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)
a relevant individual’s national insurance number;
30
(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 paragraph
may request the disclosure of some or all of the following information—
35
(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 profession or was doing so at a time specified in the request;
40
(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;

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Northern Ireland: information about financial resources
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(g)
a relevant individual’s benefit status at a time specified in the
request;
(h)
information of a prescribed description.
      (5)
The information that may be prescribed under sub-paragraphs (3)(f) and
(4)(h) includes, in particular, information relating to—
5
(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 sub-paragraph (4)(h) without the
Commissioners’ consent.
10
      (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 paragraph.
      (8)
In this paragraph—
“benefit status”, in relation to an individual, means whether or not the
15
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 or jointly,
(c)
in prescribed cases, the amount the individual is receiving by
20
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
elements, what those elements are and the amount included
in respect of each element in calculating the benefit amount;
25
“financial resources”, in relation to an individual, includes an
individual’s means, disposable income and disposable capital;
“the relevant authority” means—
(a)
a prescribed person, or
(b)
in relation to circumstances for which no person is
30
prescribed, the chief executive of the Northern Ireland Legal
Services Commission;
“a relevant individual”, in relation to an information request under this
paragraph for the purposes of a determination about an individual’s
financial resources, means—
35
(a)
that individual, and
(b)
any 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
40
Finance and Personnel in Northern Ireland.
Restrictions on disclosing information
2     (1)
A person to whom information is disclosed under paragraph 1 of this
Schedule or this sub-paragraph may disclose the information to any person
to whom its disclosure is necessary or expedient in connection with
45
facilitating a determination described in paragraph 1(2).
      (2)
A person to whom such information is disclosed must not—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 6 — Northern Ireland: information about financial resources
197

(a)
disclose the information other than in accordance with sub-
paragraph (1), or
(b)
use the information other than for the purpose of facilitating a
determination described in paragraph 1(2).
      (3)
Sub-paragraph (2) does not prevent—
5
(a)
the disclosure of information in accordance with an enactment or an
order of a court,
(b)
the disclosure of information for the purposes of the investigation or
prosecution of an offence (or suspected offence) under the law of
England and Wales or Northern Ireland or any other jurisdiction,
10
except as otherwise prescribed,
(c)
the disclosure of information for the purposes of instituting, or
otherwise for the purposes of, proceedings before a court, or
(d)
the disclosure of information which has previously been lawfully
disclosed to the public.
15
      (4)
A person who discloses or uses information in contravention of this
paragraph is guilty of an offence and liable—
(a)
on conviction on indictment, to imprisonment for a term not
exceeding 2 years or a fine (or both);
(b)
on summary conviction—
20
(i)
in England and Wales, to imprisonment for a term not
exceeding 12 months or a fine not exceeding the statutory
maximum (or both), and
(ii)
in Northern Ireland, to imprisonment for a term not
exceeding 6 months or a fine not exceeding the statutory
25
maximum (or both).
      (5)
It is a defence for a person charged with an offence under this paragraph to
prove that the person reasonably believed that the disclosure or use was
lawful.
      (6)
In this paragraph “enactment” includes—
30
(a)
an enactment contained subordinate legislation (within the meaning
of the Interpretation Act 1978), and
(b)
an enactment contained in, or in an instrument made under, an Act
or Measure of the National Assembly for Wales or Northern Ireland
legislation.
35
      (7)
In relation to an offence under this paragraph committed before the
commencement of section 154(1) of the Criminal Justice Act 2003, the
reference in sub-paragraph (4)(b)(i) to 12 months has effect as if it were a
reference to 6 months.
Power to make consequential and supplementary provision etc
40
3     (1)
The Department of Justice in Northern Ireland may by regulations make
consequential, supplementary, incidental or transitional provision in
relation to this Schedule extending to Northern Ireland.
      (2)
The regulations may, in particular—
(a)
amend, repeal, revoke or otherwise modify Northern Ireland
45
legislation passed before this Schedule comes into force or an
instrument made under such legislation, and

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Schedule 7 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
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(b)
include transitory or saving provision.
Regulations
4     (1)
In this Schedule “prescribed” means prescribed by regulations made by the
Department of Justice in Northern Ireland.
      (2)
The powers under this Schedule to make regulations are exercisable by
5
statutory rule for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 (S.I. 1979/1573 (N.I. 12)).
      (3)
Regulations under this Schedule are subject to negative resolution within the
meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954,
subject to sub-paragraph (4).
10
      (4)
The following regulations may not be made unless a draft of the regulations
has been laid before, and approved by a resolution of, the Northern Ireland
Assembly—
(a)
the first regulations under paragraph 1, and
(b)
regulations under paragraph 3 that amend or repeal Northern
15
Ireland legislation (whether alone or with other provision).
      (5)
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the
purposes of sub-paragraph (4) in relation to the laying of a draft as it applies
in relation to the laying of a statutory document under an enactment (as
defined in that Act).
20
      (6)
Subsections (1) to (3) of section 41 apply in relation to regulations made
under paragraph 1 or 2 of this Schedule as they apply in relation to
regulations made by the Lord Chancellor under this Part.
Schedule 7
Section 63

Costs in criminal cases
25
Part 1
Prosecution of Offences Act 1985
Introduction
1
The Prosecution of Offences Act 1985 is amended as follows.
Defence costs
30
2     (1)
Section 16 (defence costs) is amended as follows.
      (2)
After subsection (6) insert—
“(6A)
Where 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
35
out of central funds of such lesser amount as the court considers just
and reasonable.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
199

(6B)
Subsections (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
5
appropriate 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—
10
(a)
it 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.”
15
      (3)
Omit 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
20
funds 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
25
made 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
30
were incurred in proceedings in a court below which were—
(a)
proceedings in a magistrates’ court, or
(b)
proceedings on an appeal to the Crown Court under section
108 of the Magistrates’ Courts Act 1980 (right of appeal
against conviction or sentence).
35
(5)
Condition C is that the legal costs were incurred in proceedings in
the Supreme Court.
(6)
The Lord Chancellor may by regulations make provision about
exceptions from the prohibition in subsection (1), including—
(a)
provision amending this section by adding, modifying or
40
removing an exception, and
(b)
provision for an exception to arise where a determination has
been made by a person specified in the regulations.

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Schedule 7 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
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(7)
Regulations under subsection (6) may not remove or limit the
exception provided by condition C.
(8)
Where a court makes a defendant’s costs order requiring the
payment out of central funds of an amount that includes an amount
in respect of legal costs, the order must include a statement to that
5
effect.
(9)
Where, in a defendant’s costs order, a court fixes an amount to be
paid out of central funds that includes an amount in respect of legal
costs incurred in proceedings in a court other than the Supreme
Court, the latter amount must not exceed an amount specified by
10
regulations made by the Lord Chancellor.
(10)
In this section—
“legal costs” means fees, charges, disbursements and other
amounts payable in respect of advocacy services or litigation
services including, in particular, expert witness costs;
15
“advocacy services” means any services which it would be
reasonable to expect a person who is exercising, or
contemplating exercising, a right of audience in relation to
any proceedings, or contemplated proceedings, to provide;
“expert witness costs” means amounts payable in respect of the
20
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
reasonable to expect a person who is exercising, or
25
contemplating exercising, a right to conduct litigation in
relation to proceedings, or contemplated proceedings, to
provide.”
Prosecution costs
4     (1)
Section 17 (prosecution costs) is amended as follows.
30
      (2)
In subsection (1) for “subsection (2)” substitute “subsections (2) and (2A)”.
      (3)
After 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
35
the payment out of central funds of such lesser amount as the court
considers 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—
40
(a)
the prosecutor agrees the amount, or
(b)
subsection (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
45
subsection (2A), and

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
201

(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.”
      (4)
Omit subsections (3) and (4).
Costs of witnesses and appellants not in custody
5
5     (1)
Section 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
10
under 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
15
(b)
regulations under subsection (3) may make provision
accordingly.”
      (3)
After subsection (3C) insert—
“(3D)
Regulations under subsection (3) may make provision generally or
only in relation to particular descriptions of persons, expenses, fees,
20
costs, trouble or losses.”
      (4)
After subsection (4) insert—
“(4A)
Subsection (4) has effect subject to regulations under section
20(1A)(d).
(4B)
An order under subsection (4) may not require the payment out of
25
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)
provision for an exception to arise where a determination has
30
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)
provision that the court may not order the payment of a sum
35
in respect of legal costs exceeding an amount specified in the
regulations.”
Regulations
6     (1)
Section 20 (regulations) is amended as follows.
      (2)
In subsection (1) omit the words from “and the regulations” to the end.
40
      (3)
After that subsection insert—
“(1A)
The Lord Chancellor may by regulations—