Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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Civil legal aid

8       

Civil legal services

(1)   

In this Part “legal services” means the following types of services—

(a)   

providing advice as to how the law applies in particular circumstances,

(b)   

providing advice and assistance in relation to legal proceedings,

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(c)   

providing other advice and assistance in relation to the prevention of

disputes about legal rights or duties (“legal disputes”) or the settlement

or other resolution of legal disputes, and

(d)   

providing advice and assistance in relation to the enforcement of

decisions in legal proceedings or other decisions by which legal

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disputes are resolved.

(2)   

The services described in subsection (1) include, in particular, advice and

assistance in the form of—

(a)   

representation, and

(b)   

mediation and other forms of dispute resolution.

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(3)   

In this Part “civil legal services” means any legal services other than the types

of advice, assistance and representation that are required to be made available

under sections 13, 15 and 16 (criminal legal aid).

9       

General cases

(1)   

Civil legal services are to be available to an individual under this Part if—

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(a)   

they are civil legal services described in Part 1 of Schedule 1, and

(b)   

the Director has determined that the individual qualifies for the

services in accordance with this Part (and has not withdrawn the

determination).

(2)   

The Lord Chancellor may by order modify Schedule 1 by omitting services

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from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of

the Schedule).

10      

Exceptional cases

(1)   

Civil legal services other than services described in Part 1 of Schedule 1 are to

be available to an individual under this Part if subsection (2) or (4) is satisfied.

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(2)   

This subsection is satisfied where the Director—

(a)   

has made an exceptional case determination in relation to the

individual and the services, and

(b)   

has determined that the individual qualifies for the services in

accordance with this Part,

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(and has not withdrawn either determination).

(3)   

For the purposes of subsection (2), an exceptional case determination is a

determination—

(a)   

that it is necessary to make the services available to the individual

under this Part because failure to do so would be a breach of—

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(i)   

the individual’s Convention rights (within the meaning of the

Human Rights Act 1998), or

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(ii)   

any rights of the individual to the provision of legal services

that are enforceable EU rights, or

(b)   

that it is appropriate to do so, in the particular circumstances of the

case, having regard to any risk that failure to do so would be such a

breach.

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(4)   

This subsection is satisfied where—

(a)   

the services consist of advocacy in proceedings at an inquest under the

Coroners Act 1988 into the death of a member of the individual’s

family,

(b)   

the Director has made a wider public interest determination in relation

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to the individual and the inquest, and

(c)   

the Director has determined that the individual qualifies for the

services in accordance with this Part,

   

(and neither determination has been withdrawn).

(5)   

For the purposes of subsection (4), a wider public interest determination is a

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determination that, in the particular circumstances of the case, the provision of

advocacy under this Part for the individual for the purposes of the inquest is

likely to produce significant benefits for a class of person, other than the

individual and the members of the individual’s family.

(6)   

For the purposes of this section an individual is a member of another

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individual’s family if—

(a)   

they are relatives (whether of the full blood or half blood or by marriage

or civil partnership),

(b)   

they are cohabitants (as defined in Part 4 of the Family Law Act 1996),

or

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(c)   

one has parental responsibility for the other.

11      

Qualifying for civil legal aid

(1)   

The Director must determine whether an individual qualifies under this Part

for civil legal services in accordance with—

(a)   

section 21 (financial resources) and regulations under that section, and

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(b)   

criteria set out in regulations made under this paragraph.

(2)   

In setting the criteria, the Lord Chancellor—

(a)   

must consider the circumstances in which it is appropriate to make civil

legal services available under this Part, and

(b)   

must, in particular, consider the extent to which the criteria ought to

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reflect the factors in subsection (3).

(3)   

Those factors are—

(a)   

the likely cost of providing the services and the benefit which may be

obtained by the services being provided,

(b)   

the availability of resources to provide the services,

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(c)   

the appropriateness of applying those resources to provide the services,

having regard to present and likely future demands for the provision of

civil legal services under this Part,

(d)   

the importance for the individual of the matters in relation to which the

services would be provided,

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(e)   

the nature and seriousness of the act, omission, circumstances or other

matter in relation to which the services are sought,

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(f)   

the availability to the individual of services provided other than under

this Part and the likelihood of the individual being able to make use of

such services,

(g)   

if the services are sought by the individual in relation to a dispute, the

individual’s prospects of success in the dispute,

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(h)   

the conduct of the individual in connection with services made

available under this Part or an application for such services,

(i)   

the conduct of the individual in connection with any legal proceedings

or other proceedings for resolving disputes about legal rights or duties,

and

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(j)   

the public interest.

(4)   

In setting the criteria, the Lord Chancellor must seek to secure that, in cases in

which more than one form of civil legal service could be provided for an

individual, the individual qualifies under this Part for the form of service

which in all the circumstances is the most appropriate having regard to the

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criteria.

(5)   

The criteria must reflect the principle that, in many disputes, mediation and

other forms of dispute resolution are more appropriate than legal proceedings.

(6)   

Regulations under subsection (1)(b) may provide that no criteria apply in

relation to a prescribed description of individual or services.

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12      

Determinations

(1)   

A determination by the Director that an individual qualifies under this Part for

civil legal services must specify—

(a)   

the type of services, and

(b)   

the matters in relation to which the services are to be available.

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(2)   

Regulations may make provision about the making and withdrawal of

determinations under sections 9 and 10.

(3)   

Regulations under subsection (2) 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)   

provision for a determination to be disregarded for the purposes of this

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Part 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

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must be withdrawn,

(g)   

provision requiring information and documents to be provided,

(h)   

provision requiring individuals who are the subject of a determination

to be informed of the reasons for making or withdrawing the

determination, and

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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(i)   

provision for giving information to individuals who do not qualify for

civil legal services under this Part about alternative ways of obtaining

or funding civil legal services.

(4)   

The circumstances prescribed under subsection (3)(f) may, in particular, relate

to whether the individual who is the subject of the determination has complied

5

with requirements imposed by or under this Part.

(5)   

Regulations under subsection (2) must make provision establishing

procedures for the review of determinations under sections 9 and 10 and of the

withdrawal of such determinations.

(6)   

Regulations under subsection (2) may make provision for appeals to a court,

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tribunal or other person against such determinations and against the

withdrawal of such determinations.

Criminal legal aid

13      

Advice and assistance for individuals in custody

(1)   

Initial advice and initial assistance are to be available under this Part to an

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individual who is arrested and held in custody at a police station or other

premises if the Director has determined that the individual qualifies for such

advice and assistance in accordance with this Part (and has not withdrawn the

determination).

(2)   

The Director must make a determination under this section having regard, in

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particular, to the interests of justice.

(3)   

A determination under this section must specify the type of advice or

assistance (or both) to be available under this Part.

(4)   

Regulations may make provision about the making and withdrawal of

determinations under this section.

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(5)   

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

(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

30

prescribed 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,

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(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

must be withdrawn,

(g)   

provision requiring information and documents to be provided, and

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(h)   

provision requiring individuals who are the subject of a determination

to be informed of the reasons for making or withdrawing the

determination.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(6)   

The circumstances prescribed under subsection (5)(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.

(7)   

For the purposes of this section, in relation to an individual who is in custody—

“initial advice” means advice as to how the law in relation to a matter

5

relevant to the individual’s arrest applies in particular circumstances

and as to the steps that might be taken having regard to how it applies;

“initial assistance” means assistance in taking any of those steps which the

individual might reasonably take while in custody, including

assistance in the form of advocacy.

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(8)   

The Lord Chancellor may by regulations provide that prescribed advice or

assistance is not initial advice or initial assistance for the purposes of this

section.

14      

Criminal proceedings

In this Part “criminal proceedings” means—

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(a)   

proceedings before a court for dealing with an individual accused of an

offence,

(b)   

proceedings before a court for dealing with an individual convicted of

an offence, including proceedings in respect of a sentence or order,

(c)   

proceedings for dealing with an individual under the Extradition Act

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2003,

(d)   

proceedings for binding an individual over to keep the peace or to be

of good behaviour under section 115 of the Magistrates’ Courts Act

1980 and for dealing with an individual who fails to comply with an

order under that section,

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(e)   

proceedings on an appeal brought by an individual under section 44A

of the Criminal Appeal Act 1968 (appeal in case of death of appellant),

(f)   

proceedings on a reference under section 36 of the Criminal Justice Act

1972 on a point of law following the acquittal of an individual on

indictment,

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(g)   

proceedings for contempt committed, or alleged to have been

committed, by an individual in the face of a court, and

(h)   

such other proceedings, before any court, tribunal or other person, as

may be prescribed.

15      

Advice and assistance for criminal proceedings

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(1)   

Regulations may provide that prescribed advice and assistance is to be

available 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

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withdrawn the determination).

(2)   

Those 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),

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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(b)   

individuals who are before a court, tribunal or other person in criminal

proceedings, 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.

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(4)   

The regulations must require the Director to make determinations under the

regulations 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 21 (financial resources) and regulations under that section, and

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(b)   

criteria set out in the regulations.

(6)   

The 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

15

applications for determinations,

(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,

20

(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)   

provision about conditions which must be satisfied by an applicant

before a determination is made,

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(f)   

provision about the circumstances in which a determination may or

must 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

30

determination.

(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

35

or 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

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advocacy.

16      

Representation for criminal proceedings

(1)   

Representation for the purposes of criminal proceedings is to be available

under this Part to an individual if—

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid

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(a)   

the individual is a specified individual in relation to the proceedings,

and

(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).

5

(2)   

Representation for the purposes of criminal proceedings is to be available

under 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

10

the individual qualifies for such representation in accordance with this

Part (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—

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(a)   

any related bail proceedings, and

(b)   

any 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),

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and

(b)   

make 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.

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(6)   

In this section—

“the relevant authority”, in relation to a specified individual and criminal

proceedings, means the person who is authorised by or under section

18, 19 or 20 to determine (provisionally or otherwise) whether the

individual qualifies under this Part for representation for the purposes

30

of the proceedings;

“specified individual” means—

(a)   

in relation to criminal proceedings mentioned in any of

paragraphs (a) to (g) of section 14, an individual mentioned in

that paragraph in relation to those proceedings, and

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(b)   

in relation to criminal proceedings prescribed by regulations

under section 14(h), a description of individual specified in the

regulations in relation to those proceedings.

17      

Qualifying for representation

(1)   

The relevant authority must determine whether an individual qualifies under

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this Part for representation for the purposes of criminal proceedings (whether

provisionally or otherwise) in accordance with—

(a)   

section 21 (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

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determination, the following factors must be taken into account—

 
 

 
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Revised 22 March 2012