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 8 — Costs in criminal cases: service courts
Part 1 — Appeals from Court Martial
209

Part 4
Savings
20
The amendments made by paragraphs 2 to 5 do not have effect in relation to
costs orders made by a court in proceedings which commenced before the
relevant day.
5
21
The amendments made by paragraphs 9 to 11 do not have effect in relation
to a person’s entitlement to costs in connection with a reference made before
the relevant day.
22
The amendments made by paragraphs 12 to 19 do not have effect in relation
to orders made by a judge or court in proceedings which commenced before
10
the relevant day.
23
In paragraphs 20 to 22 “the relevant day”, in relation to an amendment,
means the day on which the amendment comes into force.
24
For the purposes of paragraphs 20 and 22—
(a)
proceedings commence in a magistrates’ court when a warrant,
15
requisition or summons relating to the proceedings is issued;
(b)
proceedings commence on an appeal to the Crown Court when a
notice of appeal is served;
(c)
other proceedings commence in the Crown Court when they are
committed, transferred or sent to that court;
20
(d)
proceedings commence in the High Court when an application for
leave to appeal by way of case stated is made or (in the absence of
such an application) when notice of appeal is given;
(e)
proceedings commence in the Court of Appeal when an application
for leave to appeal is made or (in the absence of such an application)
25
when notice of appeal is given;
(f)
proceedings commence in the Supreme Court when an application
for leave to appeal is made.
Schedule 8
Section 63

Costs in criminal cases: service courts
30
Part 1
Appeals from Court Martial
Introduction
1
Part 2 of the Court Martial Appeals Act 1968 (appeals from Court Martial) is
amended as follows.
35
Costs of successful appellant
2     (1)
Section 31 (costs of successful appellant) is amended as follows.
      (2)
In subsection (1) omit “other than an appeal against sentence”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 1 — Appeals from Court Martial
210

      (3)
In subsection (2) at the end insert “, subject to subsection (3), section 31A and
regulations under section 33B(1)(d).”
      (4)
After subsection (2) insert—
“(3)
Where the Appeal Court consider that there are circumstances that
make it inappropriate for the appellant to recover the whole of the
5
sums mentioned in subsection (2), a direction under this section must
be for the payment of such lesser sums as they consider just and
reasonable.
(4)
The Appeal Court must fix the sums to be paid by the Secretary of
State in the direction if they consider it appropriate to do so and—
10
(a)
the appellant agrees the sums, or
(b)
subsection (3) applies.
(5)
Where the Appeal Court do not fix the sums to be paid by the
Secretary of State in the direction—
(a)
they must describe in the direction any reduction required
15
under subsection (3), and
(b)
the sums must be fixed by means of a determination made by
or on behalf of the Appeal Court in accordance with
procedures specified in regulations made by the Lord
Chancellor.”
20
Legal costs
3
After section 31 insert—
“31A
Legal costs
(1)
The costs which the Appeal Court may direct the Secretary of State
to pay under section 31 do not include legal costs, except where
25
regulations made by the Lord Chancellor provide otherwise.
(2)
Regulations under this section may, in particular, include—
(a)
provision for an exception to arise where a determination has
been made by a person specified in the regulations,
(b)
provision requiring the Appeal Court, when they direct the
30
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and
(c)
provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
specified in the regulations.
35
(3)
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;
“advocacy services” means any services which it would be
40
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
services of an expert witness, including amounts payable in
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 1 — Appeals from Court Martial
211

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
contemplating exercising, a right to conduct litigation in
5
relation to proceedings, or contemplated proceedings, to
provide.”
Witnesses’ expenses
4     (1)
Section 33 (witnesses’ expenses) is amended as follows.
      (2)
In subsection (1) at the end insert “, subject to subsection (3) and regulations
10
under section 33B(1)(d)”.
      (3)
At the end insert—
“(3)
Sums ordered to be paid out of money provided by Parliament
under subsection (1) may not include sums in respect of expert
witness costs (as defined in section 31A), unless regulations made by
15
the Lord Chancellor provide otherwise.”
Expenses of appellant not in custody
5     (1)
Section 33A (appellant’s expenses) is amended as follows.
      (2)
Number the existing provision subsection (1).
      (3)
After that subsection insert—
20
“(2)
The expenses which the Appeal Court may direct the Secretary of
State to pay under this section do not include legal costs (as defined
in section 31A), except where regulations made by the Lord
Chancellor provide otherwise.
(3)
Regulations under this section may, in particular, include—
25
(a)
provision for an exception to arise where a determination has
been made by a person specified in the regulations,
(b)
provision requiring the Appeal Court, when they direct the
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and
30
(c)
provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
specified in the regulations.”
Further provision about costs
6
After section 33A insert—
35
“33B
Further provision about costs
(1)
The Lord Chancellor may by regulations—
(a)
make provision as to the sums that may be directed or
ordered to be paid under section 31, 33 or 33A, whether by
specifying rates or scales or by making other provision as to
40
the calculation of the sums,

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 1 — Appeals from Court Martial
212

(b)
make provision as to the circumstances in which and
conditions under which such sums may be paid or directed
or ordered to be paid,
(c)
make provision requiring such sums to be fixed having
regard to regulations under paragraphs (a) and (b),
5
(d)
make provision requiring such sums 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 to compensate the person concerned), and
(e)
make provision as to the review of determinations of sums
10
directed to be paid under section 31.
(2)
Regulations under this section may provide that provision as to the
calculation of sums (whether in the form of rates or scales or other
provision) may be determined by the Lord Chancellor with the
consent of the Treasury.”
15
Regulations
7
After section 33B insert—
“33C
Regulations
(1)
Regulations under sections 31, 31A, 33, 33A and 33B may, in
particular—
20
(a)
make different provision in relation to different cases and
different classes of case, including different provision in
relation to different expenses, trouble and loss, different
directions and orders and different areas, and
(b)
make different provision in relation to the fixing of a sum in
25
a direction or order and the fixing of a sum by means of a
determination.
(2)
A power to make regulations under those sections is exercisable by
statutory instrument.
(3)
A statutory instrument containing regulations under those sections
30
is subject to annulment in pursuance of a resolution of either House
of Parliament, subject to subsection (4).
(4)
A statutory instrument containing (whether alone or with other
provision) regulations under section 31A, 33 or 33A may not be made
unless a draft of the instrument has been laid before, and approved
35
by a resolution of, each House of Parliament.”
Consequential repeal
8
In consequence of the amendment made by paragraph 2(2), omit paragraph
1(6) of Schedule 2 to the Armed Forces Act 1971.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 2 — Appeals from Court Martial Appeal Court
213

Part 2
Appeals from Court Martial Appeal Court
Introduction
9
Part 3 of the Court Martial Appeals Act 1968 (appeals from Court Martial
Appeal Court) is amended as follows.
5
Application to Appeal Court
10
Before section 47 insert—
“46A
Costs: application to Appeal Court by Director of Service Prosecutions
(1)
Where the Appeal Court dismiss an application for leave to appeal
to the Supreme Court made by the Director of Service Prosecutions,
10
the Appeal Court may direct the payment by the Secretary of State of
such sums as appear to them to be reasonably sufficient to
compensate the accused for any expenses properly incurred by the
accused in resisting the application, subject to—
(a)
subsection (2), and
15
(b)
regulations under section 47A(1)(d).
(2)
The sums which the Appeal Court may direct the Secretary of State
to pay do not include legal costs (as defined in section 31A), except
where regulations made by the Lord Chancellor provide otherwise.
(3)
Regulations under subsection (2) may, in particular, include—
20
(a)
provision for an exception to arise where a determination has
been made by a person specified in the regulations,
(b)
provision requiring the Appeal Court, when they direct the
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and
25
(c)
provision that the Appeal Court may not direct the payment
of a sum in respect of legal costs exceeding an amount
specified in the regulations.
46B
Costs: application to Appeal Court by accused
Where the Appeal Court dismiss an application for leave to appeal
30
to the Supreme Court made by the accused—
(a)
the Appeal Court may make the like order as may be made
by the Court under section 32(1) of this Act where they
dismiss an application for leave to appeal to the Court,
(b)
an order made under this section may be enforced in the
35
manner described in section 32(2) of this Act, and
(c)
section 32(3) of this Act applies in relation to any sum
recovered by virtue of section 32(2)(a) (as applied by this
section).”
Application to Supreme Court
40
11    (1)
Section 47 (costs) is amended as follows.
      (2)
In subsections (1) and (2) omit “the Appeal Court or” (in each place).

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 2 — Appeals from Court Martial Appeal Court
214

      (3)
After subsection (2) insert—
“(2A)
Section 32(3) of this Act applies in relation to any sum recovered by
virtue of section 32(2)(a) (as applied by subsection (2)).”
      (4)
In subsection (3), at the end insert “subject to—
(a)
subsection (3A), and
5
(b)
regulations under section 47A(1)(d).”
      (5)
After subsection (3) insert—
“(3A)
The costs which the Supreme Court may direct the Secretary of State
to pay do not include legal costs (as defined in section 31A) incurred
in proceedings in a court below, except where regulations made by
10
the Lord Chancellor provide otherwise.
(3B)
Regulations under subsection (3A) may, in particular, include—
(a)
provision for an exception to arise where a determination has
been made by a person specified in the regulations,
(b)
provision requiring the Supreme Court, when they direct the
15
payment of a sum that includes a sum in respect of legal
costs, to include a statement to that effect in the direction, and
(c)
provision that the Supreme Court may not direct the
payment of a sum in respect of legal costs exceeding an
amount specified in the regulations.”
20
      (6)
In subsection (4) for “the foregoing provisions of” substitute “sections 46A,
46B and”.
12
Accordingly, in the heading of section 47, at the end insert “: application to
Supreme Court”.
Further provision about costs
25
13
After section 47 insert—
“47A
Further provision about costs
(1)
The Lord Chancellor may by regulations—
(a)
make provision as to the sums that may be directed to be paid
under section 46A or 47(3), whether by specifying rates or
30
scales or by making other provision as to the calculation of
the sums,
(b)
make provision as to the circumstances in which and
conditions under which such sums may be paid or directed
to be paid,
35
(c)
make provision requiring such sums to be fixed having
regard to regulations under paragraphs (a) and (b), and
(d)
make provision requiring such sums to be calculated in
accordance with such regulations (whether or not that results
in the fixing of an amount that the court considers reasonably
40
sufficient to compensate the person concerned).
(2)
The power under subsection (1)(d) may not be exercised in respect of
sums ordered to be paid by the Supreme Court in respect of expenses
incurred in proceedings before that court.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 8 — Costs in criminal cases: service courts
Part 3 — Savings
215

(3)
Regulations under this section may provide that provision as to the
calculation of sums (whether in the form of rates or scales or other
provision) may be determined by the Lord Chancellor with the
consent of the Treasury.”
Regulations
5
14
After section 47A insert—
“47B
Regulations
(1)
Regulations under sections 46A, 47 and 47A may, in particular, make
different provision in relation to different cases and different classes
of case, including different provision in relation to different
10
expenses, trouble and loss, different directions and orders and
different areas.
(2)
A power to make regulations under those sections is exercisable by
statutory instrument.
(3)
A statutory instrument containing regulations under those sections
15
is subject to annulment in pursuance of a resolution of either House
of Parliament, subject to subsection (4).
(4)
A statutory instrument containing (whether alone or with other
provision) regulations under section 46A or 47 may not be made
unless a draft of the instrument has been laid before, and approved
20
by a resolution of, each House of Parliament.”
Part 3
Savings
15
The amendments made by this Schedule do not have effect in relation to
directions and orders made by a court in proceedings commenced before the
25
relevant day.
16
For the purposes of paragraph 15—
(a)
“the relevant day”, in relation to an amendment, means the day on
which the amendment comes into force;
(b)
proceedings commence in the Court Martial Appeal Court when an
30
application for leave to appeal is made or (in the absence of such an
application) when notice of appeal is given;
(c)
proceedings commence in the Supreme Court when an application
for leave to appeal is made.