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Criminal Justice and Immigration Act 2008

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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