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SCHEDULE 3
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CRIMINAL DEFENCE SERVICE: RIGHT TO REPRESENTATION |
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Individuals to whom right may be granted |
| | 1. - (1) A right of representation for the purposes of criminal proceedings before a court may be granted to an individual who is-
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(a) accused of an offence, |
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(b) convicted of an offence, |
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(c) appealing under section 44A of the Criminal Appeal Act 1968 on behalf of a convicted person who has died, or |
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(d) resisting an appeal to the Crown Court against conviction or sentence but not acting in an official capacity. |
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(2) In this paragraph and paragraphs 2 to 4 "court" means-
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(a) a magistrates' court, |
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(c) the criminal division of the Court of Appeal or the Courts-Martial Appeal Court, or |
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(d) the House of Lords in the exercise of its jurisdiction in relation to appeals from either of those courts. |
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Extent of right |
| | 2. - (1) Where a right of representation is granted for the purposes of criminal proceedings before a court it includes the right to representation for the purposes of any proceedings preliminary or incidental to those proceedings.
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(2) Regulations may make provision specifying whether any description of proceedings is or is not to be regarded as preliminary or incidental to any other description of proceedings for the purposes of sub-paragraph (1).
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(3) The grant of a right of representation for proceedings on an appeal to the Court of Appeal or the Courts-Martial Appeal Court may be limited in the first instance to a right to representation consisting of-
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(a) advice on the question of whether there appear to be reasonable grounds of appeal, and |
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(b) assistance in the preparation of an application for leave to appeal or in the giving of a notice of appeal. |
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Grant of right by court |
| | 3. - (1) A court before which any criminal proceedings take place, or are to take place, has power to grant a right of representation in respect of those proceedings except in such circumstances as may be prescribed.
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(2) A court also has power to grant a right of representation for the purposes of criminal proceedings before another court in such circumstances as may be prescribed.
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(3) The form of the application for a grant of a right of representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.
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(4) A right to representation in respect of proceedings before a court may be withdrawn by the court.
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Grant of right by other bodies |
| | 4. - (1) Regulations may provide-
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(a) that the Commission shall have power to grant rights of representation in respect of such criminal proceedings before any such court as may be prescribed, and to withdraw any rights of representation granted by it, and |
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(b) that the Commission may delegate to any other person or body the power to grant any rights of representation in respect of criminal proceedings before any court, and to withdraw any rights of representation granted by that person or body. |
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(2) The form of any application for a grant of a right of representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.
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(3) Regulations under sub-paragraph (1) may make provision restricting or excluding the power of any court to grant or withdraw representation under paragraph 3 and may contain-
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(a) amendments of this Schedule or any other enactment, and |
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(b) such transitional provisions as the Lord Chancellor may consider appropriate. |
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Appeals |
| | 5. Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right of representation or to withdraw a right of representation.
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Criteria for grant of right |
| | 6. - (1) Any question as to whether a right of representation should be granted shall be determined according to the interests of justice.
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(2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account-
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(a) whether the individual is accused of an offence of such a nature that, if proved, he would be likely to receive a sentence which would deprive him of his liberty or lead to loss of his livelihood or serious damage to his reputation, |
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(b) whether the determination of the case may involve consideration of a substantial question of law, |
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(c) whether the individual may be unable to understand the proceedings or to state his own case, |
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(d) whether the nature of the defence is such as to involve the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution, |
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(e) whether it is in the interests of another person that the individual be represented. |
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(3) The Lord Chancellor may by order amend sub-paragraph (2) by adding new factors or varying any factor.
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(4) A right of representation shall always be granted in such circumstances as may be prescribed.
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