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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Schedule 7: Costs in criminal cases

338.Section 16 of the POA 1985 enables courts in England and Wales to order the payment of amounts in respect of costs to be paid out of central funds (that is, out of money provided by Parliament) in certain circumstances. Section 16(6) provides that the amount awarded is to be an amount reasonably sufficient to compensate the person concerned for costs properly incurred. Paragraph 2 of Schedule 7 inserts new subsections (6A) to (6D) into section 16 of the POA 1985. New subsection (6A) provides that, where the court considers it appropriate, it may reduce the amount awarded to the accused; for example, the court may do so because the accused has been convicted of some offences but acquitted of others. New subsections (6C) and (6D) clarify the existing procedure by which the court makes a costs order in favour of an acquitted defendant or successful appellant. New subsection (6B) provides that orders made by the court under subsections (6) and (6A) have effect subject to new section 16A and regulations made by the Lord Chancellor under new section 20(1A)(d). The effect of section 16A is to limit the circumstances in which a defendant’s costs order can include amounts in respect of legal costs. Regulations under section 20(1A)(d) may have the effect that the amount awarded is an amount that is less than an amount which the court considers is reasonably sufficient to compensate the person for the costs incurred.

339.Paragraph 3 of Schedule 7 inserts a new section 16A in the POA 1985. New section 16A(1) provides that a DCO may not include an amount in respect of legal costs, subject to the following provisions of that section. Section 16A(2) and (3) provide that such an amount can be awarded if the accused is an individual, as opposed to a company or other body, and the order is made (a) in the magistrates’ court, (b) on appeal to the Crown Court against a magistrates’ court conviction or sentence, or (c) in the Court of Appeal in limited circumstances relating to a defendant who has been found not guilty by reason of insanity, or has been found unfit to stand trial, or having been found unfit to stand trial, has been found to have done the act or made the omission alleged against him.

340.New section 16A(4) provides that a DCO made by the High Court or Court of Appeal can include an amount in respect of legal costs in relation to the costs of an individual defendant in proceedings in the court below, where those proceedings were either in a magistrates’ court or were proceedings on appeal to the Crown Court against a magistrates’ court conviction or sentence (as those courts would have been able to award legal costs in those proceedings).

341.Section 16A(5) provides that a DCO can include an amount in respect of legal costs incurred in proceedings in the Supreme Court.

342.Section 16A(6) provides that the Lord Chancellor may make regulations that alter the availability of legal costs by adding, modifying or removing an exception to the availability of legal costs. The Lord Chancellor’s regulations may provide for an exception to arise where a determination has been made by a person specified in the regulations. This would allow the Lord Chancellor to prescribe that legal costs are not to be available in respect of cases that do not pass the interests of justice test.

343.Section 16A(7) provides that regulations under subsection (6) may not remove or limit the Supreme Court’s power to award legal costs incurred in proceedings before it.

344.New section 16A(8) provides that where a court makes a DCO that includes legal costs, the order must contain a statement to this effect.

345.New section 16A(9) provides that amounts awarded by a court in respect of legal costs, other than legal costs incurred in proceedings before the Supreme Court, may not exceed an amount specified in regulations by the Lord Chancellor.

346.New section 16A(10) explains what is meant by “legal costs”.

347.Paragraph 4 of Schedule 7 inserts new subsections (2A), (2B) and (2C) into section 17 of the POA 1985. These subsections are the same as new subsections (6A), (6C) and (6D) of section 16 discussed in paragraph 337 above and apply in respect of private prosecutors. They clarify the procedure to be followed where a court considers that a private prosecutor should recover a sum in respect of his or her costs.

348.Paragraph 5 of Schedule 7 inserts a new subsection (3ZA) into section 19 of the POA 1985. Section 19(3) provides that the Lord Chancellor may make regulations in respect of the costs of witnesses, and other persons attending court, such as an interpreter, or a person appointed to put the case for the defence where the defendant is unfit to be tried, or is prevented from cross-examining a witness in person. New subsection (3ZA) provides that the requirement that regulations made under section 19(3) make provision for the payment of an amount that the court considers reasonably necessary to compensate the person concerned is subject to regulations under section 20(1A)(d).

349.Paragraph 5 also inserts new subsections (4A), (4B) and (4C) into section 19 of the POA 1985. They provide that an order made in favour of an appellant in the Court of Appeal who is not in custody may not require the payment of an amount in respect of legal costs unless regulations provide otherwise. Any such order is subject to regulations made by the Lord Chancellor under section 20(1A)(d), which may have the effect that the amount awarded is an amount that is less than an amount which the court considers is reasonably sufficient to compensate the person for the costs incurred.

350.Paragraph 6 of Schedule 7 inserts a new subsection (1A) into section 20 of the POA 1985. New subsection (1A) provides that the Lord Chancellor may make regulations in respect of amounts that may be paid in pursuance of a costs order. Subsection 20(1A)(a) provides that such regulations can specify rates or scales or make other provision as to the calculation of the amounts to be paid. It is intended that regulations will provide for the payment of amounts in respect of legal costs that are broadly equivalent to legal aid rates.

351.New subsection (1A)(b) provides that regulations may make provision as to the circumstances in which amounts can be paid or ordered to be paid. New subsection (1A)(c) provides that regulations may provide that the amounts required to be paid by a costs order are to be calculated having regard to regulations under paragraphs (a) and (b). This is intended to enable courts to summarily assess the amount to be awarded, using the amounts set out in the regulations as guidance. New subsection (1A)(d) provides that regulations may require the amount of such orders to be fixed in accordance with such regulations. This is likely to be relevant when the court, instead of summarily assessing the amount of the order, directs that the sum be assessed by a determining officer. The amount that results from the application of the regulations does not need to be reasonably sufficient or necessary to compensate the recipient, except in respect of costs incurred in proceedings in the Supreme Court and in the case of costs orders made under section 17 of the POA 1985. New subsection (1A)(e) provides for the regulations to make provision providing for the review of determinations of amounts required to be paid.

352.Paragraph 8 of Schedule 7 amends section 29 of the POA 1985 to make the powers to make regulations under sections 16A(6) and 19(4B) subject to the affirmative resolution procedure. Those powers can be used to alter the circumstances in which amounts in respect of legal costs may be awarded by a court.

353.Paragraph 9 of Schedule 7 amends section 36 of the Criminal Justice Act 1972, which relates to references by the Attorney General on a point of law following acquittal on indictment. It provides that the court’s power to order the payment of costs out of central funds is subject to regulations made under section 20(1A)(d) of the POA 1985 (which is applied for the purposes of this section). It also provides that orders may not be made for the payment out of central funds of amounts in respect of legal costs incurred in proceedings on the reference in the Court of Appeal. Section 14(f) of this Act provides that proceedings on a point of law following acquittal on indictment are “criminal proceedings” for the purposes of legal aid.

354.Paragraph 11 of Schedule 7 amends Schedule 3 to the 1988 Act, which relates to references by the Attorney General to the Court of Appeal or Supreme Court in relation to a sentence of the Crown Court that appears to be unduly lenient. It provides that, in England and Wales, the court’s power to order the payment of costs out of central funds is subject to regulations made under section 20(1A)(d) of the POA 1985 (which is applied for the purposes of this section). It also provides that orders may not be made for the payment out of central funds of amounts in respect of legal costs incurred in proceedings in the Court of Appeal. Section 14(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that proceedings for dealing with an individual convicted of an offence, which includes references under the 1988 Act, are “criminal proceedings” for the purposes of legal aid. Paragraph 11 also contains consequential provisions to preserve the existing arrangements in relation to costs for Northern Ireland.

355.Paragraph 13 amends section 61 of the Extradition Act 2003 (costs where discharge ordered) by inserting new subsections (5A) and (5B). New subsection (5A) provides that, in England and Wales, an order for costs is to be made in accordance with new sections 62A and 62B. New subsection (5B) provides that an order for costs in Scotland and Northern Ireland under subsection (5) is to be determined in accordance with subsections (6) to (9) so that the existing arrangements are preserved for those jurisdictions.

356.Paragraph 14 omits subsections (1) and (2) of section 62 of the Extradition Act 2003. Subsection (1) and (2) provide that, in respect of England and Wales, subsections (1) and (3) of section 20 of the POA 1985 apply in relation to section 61 of the Extradition Act 2003 as they apply to Part 2 of the POA 1985.

357.Paragraph 15 inserts new sections 62A and 62B into the Extradition Act 2003. New section 62A(1) to (5) makes provision equivalent to sections 16(6) to 16(6D) of the POA 1985 (i.e. provision as to the amount to be awarded pursuant to an order for costs and the calculation of that amount). New subsection (6) of section 62A provides that section 20(1A) to (1C) and (3) of the POA 1985 (regulations as to amounts ordered to be paid out of central funds) apply for the purposes of orders under section 61 as they apply for the purposes of orders under section 16 of the POA 1985. New section 62B provides that, in England and Wales, an order under section 61(5) may not include an amount in respect of legal costs unless those legal costs were incurred in the magistrates’ court or the Supreme Court. The Lord Chancellor may, by regulations, make provision about exceptions from the prohibition against the award of legal costs, but such regulations cannot affect the Supreme Court’s power to award an amount in respect of legal costs incurred in proceedings before it.

358.Paragraph 16 makes amendments of section 134 of the Extradition Act 2003 (costs where discharge ordered) equivalent to the amendments of section 61 of that Act.

359.Paragraphs 20 to 22 provide that the amendments to the POA 1985, the Criminal Justice Act 1972, the 1988 Act and the Extradition Act 2003 do not affect a person’s entitlement to costs in respect of proceedings and references commenced prior to commencement of the relevant provisions.

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