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 7 — Costs in criminal cases
Part 1 — Prosecution of Offences Act 1985
202

(a)
make provision as to the amounts that may be ordered to be
paid out of central funds in pursuance of a costs order,
whether 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
5
conditions under which such amounts may be paid or
ordered to be paid,
(c)
make 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),
10
(d)
make provision requiring amounts required to be paid to a
person out of central funds by a relevant costs order 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 or necessary to compensate
15
the person), and
(e)
make provision as to the review of determinations of
amounts required to be paid out of central funds by costs
orders.
(1B)
In subsection (1A)(d) “relevant costs order” means a costs order
20
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
relates to expenses, fees, costs, trouble or losses incurred in
proceedings in that court.
25
(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)
make different provision in relation to different costs orders
and different areas, and
30
(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)
In subsection (3)—
(a)
for “subsection (1)” substitute “subsection (1A)”,
35
(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
provision)”.
Interpretation
40
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”.
Supplementary
8     (1)
Section 29 (regulations) is amended as follows.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 2 — Attorney General’s references
203

      (2)
For subsection (1) substitute—
“(1)
A power to make regulations under this Act is exercisable by
statutory instrument.
(1A)
A statutory instrument containing regulations under this Act is
subject to annulment in pursuance of a resolution of either House of
5
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
made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.”
10
      (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
15
9     (1)
Section 36 of the Criminal Justice Act 1972 (reference of point of law
following 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—
20
“(5A)
Subsection (5) has effect subject to—
(a)
subsection (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
25
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.
(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
30
funds under subsection (5) as they apply in relation to amounts
payable 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.
35
Reference of sentence of Crown Court appearing to be unduly lenient
11    (1)
Schedule 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),
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 3 — Extradition Act 2003
204

(b)
in that sub-paragraph, omit “to his costs, that is to say”, and
(c)
after 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
5
Prosecution of Offences Act 1985 (as applied by this
paragraph).
      (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)
10
incurred in proceedings in the Court of Appeal.
      (4)
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 funds payable out of central funds under sub-
15
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)
In paragraph 12 (application to Northern Ireland)—
(a)
for “11”, in each place, substitute “11(1)”, and
20
(b)
after sub-paragraph (d) insert—
“(e)
paragraph 11 has effect as if sub-paragraphs (2) to
(4) were omitted.”
Part 3
Extradition Act 2003
25
Introduction
12
The Extradition Act 2003 is amended as follows.
Extradition to Category 1 Territories
13    (1)
Section 61 (costs where discharge ordered) is amended as follows.
      (2)
After subsection (5) insert—
30
“(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)
In Scotland and Northern Ireland, an order under subsection (5) is to
be made, and the appropriate amount is to be determined, in
35
accordance with subsections (6) to (9).”
14
In section 62 (supplementary provision about costs where discharge
ordered) omit subsections (1) and (2).

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 3 — Extradition Act 2003
205

15
After 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
5
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
make it inappropriate for the person to recover the full amount
mentioned in subsection (1), the order under section 61(5) must be
10
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)
section 62B, and
(b)
regulations under section 20(1A)(d) of the Prosecution of
15
Offences 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
20
amount, 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
25
required 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.
30
(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 61 as
they apply in relation to amounts payable out of central funds in
35
pursuance 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
40
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)
proceedings in a magistrates’ court, or
45
(b)
proceedings in the Supreme Court.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 3 — Extradition Act 2003
206

(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)
provision for an exception to arise where a determination has
5
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
the payment out of money provided by Parliament of an amount that
10
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
includes an amount in respect of legal costs incurred in proceedings
15
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
20
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
contemplating exercising, a right of audience in relation to
25
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
connection with attendance by the witness at court or
elsewhere;
30
“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.
35
(8)
This 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,
40
and 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).”
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 3 — Extradition Act 2003
207

17
In 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
5
amount 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
10
make 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—
15
(a)
section 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
20
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
amount, or
(b)
subsection (2) applies.
(5)
Where the judge or court does not fix the amount to be paid out of
25
money 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
30
specified 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
35
as 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
40
money 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—
45
(a)
proceedings in a magistrates’ court, or

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 7 — Costs in criminal cases
Part 3 — Extradition Act 2003
208

(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
removing an exception, and
5
(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)
Where a judge or court makes an order under section 134(5)
10
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
amount to be paid out of money provided by Parliament that
15
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.
(7)
In this section “legal costs” means—
20
“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
25
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
connection with attendance by the witness at court or
30
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
relation to proceedings, or contemplated proceedings, to
35
provide.
(8)
This section extends to England and Wales only.”
Regulations
19
In section 223(6) (orders and regulations subject to affirmative procedure), at
the appropriate places insert—
40
“section 62B(3)”;
“section 135B(3)”.