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Criminal Defence Service Bill [HL]


Criminal Defence Service Bill [HL]

1

 

[NOTE: The words marked in bold type were inserted by the Lords to avoid

questions of privilege.]

A

Bill

To

Make provision about representation funded as part of the Criminal Defence

Service. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

1       

Grant of rights to representation

(1)   

Schedule 3 to the Access to Justice Act 1999 (c. 22) (grant of right to

representation in respect of criminal proceedings) is amended as mentioned in

subsections (2) to (8).

(2)   

In paragraph 2 (grant of right by court), in sub-paragraph (1) (power of court

5

to grant right in respect of proceedings before it), for “except in such

circumstances as may be prescribed” there is substituted “subject to sub-

paragraph (1A)”.

(3)   

In that paragraph, after sub-paragraph (1) there is inserted—

   “(1A)  

The power under sub-paragraph (1) shall not be exercisable—

10

(a)   

in relation to proceedings in respect of which the

Commission has power to grant a right to representation

under paragraph 2A, unless regulations otherwise provide,

or

(b)   

in such other circumstances as may be prescribed.”

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(4)   

In that paragraph, in sub-paragraph (5) (power of court to withdraw right in

respect of proceedings before it), at the beginning there is inserted “Subject to

sub-paragraph (5A),”.

(5)   

In that paragraph, after sub-paragraph (5) there is inserted—

   “(5A)  

Sub-paragraph (5) does not apply where the Commission has power

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to withdraw the right to representation in respect of the

proceedings.”

 
Bill 6454/1
 
 

Criminal Defence Service Bill [HL]

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(6)   

After the heading “Grant of right by commission” there is inserted—

“2A   (1)  

Regulations may—

(a)   

provide that the Commission shall have power to grant rights

to representation in respect of criminal proceedings of a

prescribed description;

5

(b)   

provide that the Commission shall, except in such

circumstances as may be prescribed, have power to

withdraw any rights to representation granted in respect of

proceedings of a description prescribed under paragraph (a).

      (2)  

In sub-paragraph (1)(a), the reference to criminal proceedings does

10

not include proceedings prescribed under section 12(2)(g).

      (3)  

Regulations under sub-paragraph (1) may make such consequential

amendment or repeal of any enactment, including an enactment

contained in subordinate legislation (within the meaning of the

Interpretation Act 1978), as the Lord Chancellor may consider

15

appropriate.”

(7)   

For paragraph 3(2) and (3) (which relate to the grant of rights by the

Commission under paragraph 3) there is substituted—

“3A   (1)  

The form of the grant of a right to representation under paragraph

2A or 3 shall be such as may be prescribed.

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      (2)  

Regulations under paragraph 2A or 3 may make such transitional

provision as the Lord Chancellor may consider appropriate.”

(8)   

In paragraph 4, “Except where regulations otherwise provide,” is omitted.

(9)   

In section 25(9) of that Act (regulations subject to affirmative resolution

procedure), for “paragraph 4 of Schedule 3” there is substituted “paragraph 2A

25

or 4 of Schedule 3”.

(10)   

In paragraph 11 of Schedule 1 to that Act (funding of Legal Services

Commission’s costs relating to administration etc.), in sub-paragraph (1) (duty

of Lord Chancellor to make payments in respect of certain costs) for “and” at

the end of paragraph (a) there is substituted—

30

“(aa)   

the exercise by the Commission of functions in

relation to the Criminal Defence Service other

than the funding of services, and”.

2       

Rights to representation: financial eligibility

(1)   

Schedule 3 to the Access to Justice Act 1999 (c. 22) is amended as mentioned in

35

subsections (2) to (4).

(2)   

After paragraph 3A there is inserted—

“Financial eligibility

3B    (1)  

Power under this Schedule to grant a right to representation may

only be exercised in relation to an individual whose financial

40

resources appear to the relevant authority to be such that, under

regulations, he is eligible to be granted such a right.

 
 

Criminal Defence Service Bill [HL]

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      (2)  

Power under this Schedule to withdraw a right to representation

shall be exercised in relation to an individual if it appears to the

relevant authority—

(a)   

that his financial resources are not such that, under

regulations, he is eligible to be granted such a right, or

5

(b)   

that he has failed, in relation to the right, to comply with

regulations under this paragraph about the furnishing of

information.

      (3)  

Regulations may make provision for exceptions from sub-paragraph

(1) or (2).

10

      (4)  

Regulations under this paragraph may include—

(a)   

provision requiring the furnishing of information;

(b)   

provision for the notification of decisions about the

application of—

(i)   

sub-paragraph (1) or (2), or

15

(ii)   

regulations under sub-paragraph (3);

(c)   

such transitional provision as the Lord Chancellor may

consider appropriate.”

(3)   

In paragraph 5 (criteria for grant of right), in sub-paragraph (1) (question

whether right should be granted to be determined according to interests of

20

justice), for “a right to representation should be granted” there is substituted

“power to grant a right to representation should be exercised”.

(4)   

In that paragraph, for sub-paragraph (4) there is substituted—

    “(4)  

Regulations may prescribe circumstances in which the grant of a

right to representation shall be taken to be in the interests of justice.”

25

(5)   

In section 25 of that Act (orders, regulations and directions), after subsection (9)

there is inserted—

“(9A)   

The first regulations under paragraph 3B of Schedule 3 shall not be

made unless a draft of the regulations has been laid before, and

approved by a resolution of, each House of Parliament.”

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(6)   

In section 26 of that Act (interpretation), before the word “and” at the end of

the definition of “regulations” there is inserted—

“relevant authority” means such person or body as may be

prescribed,”.

3       

Rights to representation: contribution orders

35

(1)   

The Access to Justice Act 1999 (c. 22) is amended as follows.

(2)   

In section 17 (terms of provision of funded services)—

(a)   

in subsection (1), at the end there is inserted “or regulations under

section 17A otherwise provide”, and

(b)   

in subsection (2), at the end there is inserted “, except insofar as he has

40

already been ordered under regulations under section 17A to pay that

cost”.

 
 

Criminal Defence Service Bill [HL]

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(3)   

After section 17 there is inserted—

“17A    

Contribution orders

(1)   

Regulations may provide that, in prescribed circumstances, where—

(a)   

an individual has been granted a right to representation, and

(b)   

his financial resources are such as to make him liable under the

5

regulations to do so,

   

the relevant authority shall order him to pay the cost of his

representation or to make a contribution in respect of that cost of such

amount as is fixed by or determined under the regulations.

(2)   

Regulations under subsection (1) may include—

10

(a)   

provision requiring the furnishing of information;

(b)   

provision for the determination of the cost of representation for

the purposes of liability under a contribution order;

(c)   

provision enabling the relevant authority to require that an

amount payable under a contribution order be paid by

15

periodical payments or one or more capital sums, or both;

(d)   

provision for the payment by an individual of interest (on such

terms as may be prescribed) in respect of—

(i)   

any payment in respect of the cost of representation

required by a contribution order to be made by him later

20

than the time when the representation is provided;

(ii)   

so much of any payment which he is required by a

contribution order to make which remains unpaid after

the time when it is required to be made;

(e)   

provision about the enforcement of any liability under a

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contribution order, including provision for the withdrawal of

the individual’s right to representation in certain

circumstances;

(f)   

provision for the variation or revocation of contribution orders;

(g)   

provision for an appeal to lie to such court or other person or

30

body as may be prescribed against a contribution order;

(h)   

such transitional provision as the Lord Chancellor may consider

appropriate.

(3)   

Regulations under subsection (1) shall include provision for the

repayment to an individual of any payment made by him in excess of

35

his liability under a contribution order.

(4)   

Regulations under subsection (1) shall provide that an order made

under the regulations may not order the payment of costs to the extent

that they are already the subject of an order under section 17(2).

(5)   

Regulations under subsection (1) may—

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(a)   

be made so as to have effect only for a specified period not

exceeding 12 months;

(b)   

provide that their provisions are to apply only in relation to one

or more prescribed areas.

(6)   

In this section, “contribution order” means an order under regulations

45

under subsection (1).”

 
 

Criminal Defence Service Bill [HL]

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(4)   

In section 25 (orders, regulations and directions), in subsection (9A) (inserted

by section 2 of this Act), after “under” there is inserted “section 17A or”.

4       

Consequential amendments

(1)   

In section 1(3) of the Attachment of Earnings Act 1971 (c. 32) (cases in which

magistrates’ court may make an attachment of earnings order), in paragraph

5

(c) (attachment to secure payment of sum due under order under section 17(2)

of the Access to Justice Act 1999 (c. 22)), at the end there is inserted “or under

regulations under section 17A(1) of that Act”.

(2)   

Subsection (3) applies to the following enactments—

(a)   

section 23(5A) of the Children and Young Persons Act 1969 (c. 54)

10

(security requirement not to be imposed in respect of person not legally

represented in court, except in certain cases),

(b)   

subsection (4A) of that section as it has effect by virtue of section 98 of

the Crime and Disorder Act 1998 (c. 37) (requirement to remand to

secure accommodation not to apply where person not legally

15

represented in court, except in certain cases),

(c)   

section 83(3) of the Powers of Criminal Courts (Sentencing) Act 2000

(c. 6) (cases in which restriction on imposing custodial sentences on

persons not legally represented in court does not apply),

(d)   

paragraph 5(7) of Schedule 6 to that Act (local authority residence

20

requirement not to be imposed in respect of offender not legally

represented in court, except in certain cases), and

(e)   

paragraph 5A(6) of that Schedule (foster parent residence requirement

not to be imposed in respect of offender not legally represented in

court, except in certain cases).

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(3)   

In each of the enactments to which this subsection applies—

(a)   

in paragraph (a) (right to representation funded by the Legal Services

Commission as part of the Criminal Defence Service withdrawn

because of conduct), after “conduct” there is inserted “or because it

appeared that his financial resources were such that he was not eligible

30

to be granted such a right”, and

(b)   

for “or” at the end of that paragraph there is substituted—

“(aa)   

he applied for such representation and the application

was refused because it appeared that his financial

resources were such that he was not eligible to be

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granted a right to it; or”.

5       

Short title, commencement and extent

(1)   

This Act may be cited as the Criminal Defence Service Act 2005.

(2)   

This Act, except this section, shall come into force on such day as the Lord

Chancellor may by order made by statutory instrument appoint; and different

40

days may be appointed for different purposes.

(3)   

The Lord Chancellor may by order made by statutory instrument make such

transitional provision or savings as he thinks fit in connection with the coming

into force of any provision of this Act.

(4)   

This Act extends to England and Wales only.

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Criminal Defence Service Bill [HL]

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(5)   

Nothing in this Act shall impose any charge on the people or on public

funds, or vary the amount or incidence of or otherwise alter any such charge

in any manner, or affect the assessment, levying, administration or

application of any money raised by any such charge.

 
 

 
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Revised 25 October 2005