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Criminal Justice and Immigration Act 2008

Section 55: Extension of powers of non-legal staff

398.This section amends section 7A of the Prosecution of Offences Act 1985, which sets out the powers and rights of audience of a Crown Prosecutor which a member of staff of the CPS who is not a Crown Prosecutor may have if he or she is designated under that section by the Director of Public Prosecutions.

399.The effect of the amendments made by subsections (2) and (4) is that members of staff designated under section 7A will, in addition to their existing powers, be able to: (a) conduct trials of non-imprisonable summary offences in magistrates’ courts, (b) conduct proceedings in magistrates’ courts (other than trials) in relation to certain offences previously excluded from their remit (for example, an offence triable only on indictment or one for which the accused has elected to be tried by jury, or the court has found that it should be so tried), (c) conduct applications or other proceedings relating to “preventative civil orders”, and (d) conduct certain proceedings assigned to the Director of Public Prosecutions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 (these include proceedings on an application under section 2 of the Dogs Act 1871).

400.Subsection (3) amends subsection (5) of section 7A to make consequential changes to the definition of “bail in criminal proceedings” and to define preventative civil orders. These include restraining orders, parenting orders and other civil orders which follow criminal proceedings (such as ASBOs, drinking banning orders and football banning orders). The new subsection (5A) reproduces the existing definition of “trial” for the purposes of the section.

401.Subsection (5) inserts new subsections (8), (9) and (10) into section 7A. Subsections (8) and (9) provide that from 1 May 2011 Associate Prosecutors (formerly known as Designated Caseworkers) will cease to be exempt from the regulatory framework for persons who engage in legal activities provided for in the Legal Services Act 2007. Subsection (10) is included in case consequential amendments are required to the Legal Services Act 2007 to ensure that Associate Prosecutors can properly be catered for within the regulatory framework provided for by that Act. An order-making power (subject to the affirmative procedure) would enable appropriate modifications to be made to the 2007 Act, and if necessary other enactments (including section 7A), to this end.

402.Subsection (5) also inserts new subsections (11) and (12) into section 7A. Associate Prosecutors’ trial remit is limited through subsection (2) to non-imprisonable summary offences. The inclusion of subsections (11) and (12) provides a power that would allow the restriction on conducting proceedings in respect of imprisonable summary offences to be lifted by order (subject to affirmative procedure).

403.Subsection (6) amends section 15 of the Prosecution of Offences Act 1985 so as to enable designated members of staff to undertake binding over proceedings in the magistrates’ court.

Criminal Legal Aid

404.Sections 12 to 18 of, and Schedule 3 to, the Access to Justice Act 1999 (the 1999 Act), as amended by the Criminal Defence Service Act 2006, deal with the Criminal Defence Service. Under section 12 of the Access to Justice Act, the Legal Services Commission (the LSC) is required to set up the Criminal Defence Service to secure that people involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require. Broadly speaking, advice and assistance is available for the investigation stage and representation for proceedings.

405.Section 14 and Schedule 3 deal with representation in criminal proceedings. “Representation” is defined in section 26. It covers the preparation of a case and advocacy at any hearing. Paragraph 1(1) of Schedule 3 says that a right to representation for the purposes of any kind of criminal proceedings before a court may be granted to an individual such as is mentioned in relation to that kind of proceedings in section 12(2). The grant of a right to representation is subject to a test of the interests of justice (paragraph 5(1) of Schedule 3). Paragraph 5(2) sets out factors to be considered in deciding what the interests of justice consist of.

406.Schedule 3 was amended by the Criminal Defence Service Act 2006 to add regulation-making powers to provide for the transfer of the responsibility for granting rights to representation from the courts to the LSC and the re-introduction of a test of financial eligibility (paragraphs 2A and 3B of Schedule 3). These powers were exercised, in relation to criminal proceedings in magistrates’ courts, in the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (S.I. 2006/2493) and the Criminal Defence Service (Financial Eligibility) Regulations 2006 (S.I. 2006/2492). Applications for representation orders are handled by Her Majesty’s Courts Service on behalf of the LSC.

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