Part IE+W Preliminary

1 Purpose of this Act.E+W

The purpose of this Act is to establish a framework for the provision under Parts II, III, [F1IIIA]IV, V and VI of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance [F2, mediation] or representation on account of their means.

2 Interpretation.E+W

(1)This section has effect for the interpretation of this Act.

(2)“Advice ” means oral or written advice on the application of English law to any particular circumstances that have arisen in relation to the person seeking the advice and as to the steps which that person might appropriately take having regard to the application of English law to those circumstances.

(3)“Assistance ” means assistance in taking any of the steps which a person might take, including steps with respect to proceedings, having regard to the application of English law to any particular circumstances that have arisen in relation to him, whether by taking such steps on his behalf (including assistance by way of representation) or by assisting him in taking them on his own behalf.

[F3(3A)“Mediation ” means mediation to which Part IIIA of this Act applies; and includes steps taken by a mediator in any case—

(a)in determining whether to embark on mediation;

(b)in preparing for mediation; and

(c)in making any assessment under that Part.]

(4)“Representation ” means representation for the purposes of proceedings and it includes—

(a)all such assistance as is usually given by a [F4legal representative]in the steps preliminary or incidental to any proceedings;

(b)all such assistance as is usually so given in civil proceedings in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings; and

(c)in the case of criminal proceedings, advice and assistance as to any appeal;

and related expressions have corresponding meanings.

(5)Regulations may specify what is, or is not, to be included in advice or assistance of any description, or representation for the purposes of proceedings of any description, to which any Part or provision of a Part of this Act applies and the regulations may provide for the inclusion, in prescribed circumstances, of advice or assistance given otherwise than under this Act.

(6)Advice, assistance and representation under this Act, except when made available under Part II, [F5shall only be by legal representatives], but in the case of Part II, may be by other persons.

[F6(7)Subject to section 59 of the Courts and Legal Services Act 1990, regulations—

(a)may prescribe the circumstances in which representation shall be only by one legal representative and may require him to be from a prescribed category;

(b)may regulate representation by more than one legal representative from any one or more prescribed categories.

(7A)If it is satisfied that the circumstances of a particular case in the Supreme Court or the House of Lords warrant a direction under this subsection, the Board or, in the case of criminal proceedings the competent authority, may direct that representation in that case shall be by one legal representative.

(7B)In subsection (7A), “competent authority ” shall be construed in accordance with section 20.]

(8)The Lord Chancellor may, if it appears to him to be necessary to do so for the purpose of fulfilling any obligation imposed on the United Kingdom or Her Majesty’s Government in the United Kingdom by any international agreement, by order direct that such advice or assistance relating to the application of other laws than English law as is specified in the order shall be advice or assistance for any of the purposes of this Act.

(9)For the purposes of the application of subsection (8) above in the case of an obligation to provide for the transmission to other countries of applications for legal aid under their laws, the reference to advice or assistance relating to the application of other laws includes a reference to advice or assistance for the purposes of making and transmitting such an application.

(10)In this Act “person ” does not include a body of persons corporate or unincorporate which is not concerned in a representative, fiduciary or official capacity so as to authorise advice, assistance or representation to be granted to such a body.

(11)In this Act “legally assisted person ” means any person who receives, under this Act, advice, assistance [F7, mediation] or representation and, in relation to proceedings, any reference to an assisted party or an unassisted party is to be construed accordingly.

Part IIE+W Legal Aid Board and Legal Aid

[F83 The Legal Aid Board.E+W

(1)There shall be established a body to be known as the Legal Aid Board (in this Act referred to as “the Board ”).

(2)Subject to subsections (3) and (4) below, the Board shall have the general function of securing that advice, assistance [F9, mediation]and representation are available in accordance with this Act and of administering this Act.

(3)Subsection (2) above does not confer on the Board any functions with respect to the grant of representation under Part VI for the purposes of proceedings for contempt.

(4)Subsection (2) above does not confer on the Board any of the following functions unless the Lord Chancellor so directs by order and then only to the extent specified in the order.

The functions referred to are—

(a)determination of the costs of representation under Part IV;

(b)functions as respects representation under Part V other than determination of the costs of representation for the purposes of proceedings in magistrates’ courts;

F10(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)determination of the financial resources of persons for the purposes of this Act.

F8(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F114 Powers of the Board.E+W

(1)Subject to the provisions of this Act, the Board may do anything—

(a)which it considers necessary or desirable to provide or secure the provision of advice, assistance [F12, mediation] and representation under this Act; or

(b)which is calculated to facilitate or is incidental or conducive to the discharge of its functions;

and advice, assistance [F12, mediation] and representation may be provided in different ways in different areas in England and Wales and in different ways in different fields of law.

(2)Without prejudice to the generality of subsection (1) above, the Board shall have power—

(a)to enter into any contract including, subject to subsection (7) below, any contract to acquire or dispose of land;

(b)to make grants (with or without conditions, including conditions as to repayment);

(c)to make loans;

(d)to invest money;

(e)to promote or assist in the promotion of publicity relating to the functions of the Board;

(f)to undertake any inquiry or investigation which the Board considers necessary or expedient in relation to the discharge of its functions; and

(g)to give the Lord Chancellor such advice as it may consider appropriate in relation to the provision of advice, assistance [F12, mediation]and representation under this Act.

(3)Subsection (1) above does not confer on the Board power to borrow money or to acquire and hold shares in bodies corporate or take part in forming bodies corporate.

(4)The powers to provide advice, assistance [F12, mediation]or representation under this Part and to secure its provision under this Part by means of contracts with, or grants or loans to, other persons or bodies—

(a)shall not be exercisable unless the Lord Chancellor so directs and then only to the extent specified in the direction; and

(b)if exercisable, shall be exercised in accordance with any directions given by him.

F11(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Advice, assistance and representation provided by the Board under this Part may be granted with or without limitations and may be amended, withdrawn or revoked.

(7)The power under subsection (2) above to enter into contracts to acquire or dispose of land shall not be exercised without the approval in writing of the Lord Chancellor.

F11(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F157. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Part IIIU.K. Advice and Assistance

F168. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1810. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F2113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

[F22Part IIIAE+W Mediation]

F2313A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2413B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2513C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Part IVU.K. Civil Legal Aid

F2614. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2715. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2816. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F3018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Part VE+W Criminal Legal Aid

19 Scope of this Part.E+W

(1)This Part applies to criminal proceedings before any of the following—

(a)a magistrates’ court;

(b)the Crown Court;

(c)the criminal division of the Court of Appeal or the Courts-Martial Appeal Court; and

(d)the House of Lords in the exercise of its jurisdiction in relation to appeals from either of those courts;

and representation under this Part shall be available to any person subject to and in accordance with sections 21, 22, 23, 24 and 25.

(2)Representation under this Part for the purposes of the proceedings before any court extends to any proceedings preliminary or incidental to the proceedings, including bail proceedings, whether before that or another court.

(3)Representation under this Part for the purposes of the proceedings before a magistrates’ court extends to any proceedings before a [F31youth court] or other magistrates’ court to which the case is remitted.

(4)In subsection (2) above in its application to bail proceedings, “court ” has the same meaning as in the M1Bail Act 1976, but that subsection does not extend representation to bail proceedings before a judge of the High Court exercising the jurisdiction of that Court.

(5)In this Part—

• “competent authority ” is to be construed in accordance with section 20;

• “Court of Appeal ” means the criminal division of that Court;

• “criminal proceedings ” includes proceedings for dealing with an offender for an offence or in respect of a sentence or as a fugitive offender and also includes proceedings instituted under section 115 of the M2Magistrates’ Courts Act 1980 (binding over) in respect of an actual or apprehended breach of the peace or other misbehaviour and proceedings for dealing with a person for a failure to comply with a condition of a recognizance to keep the peace or be of good behaviour [F32and also includes proceedings under section 15 of the Children and Young Persons Act 1969 (variation and discharge of supervision orders) and section 16(8) of that Act (appeals in such proceedings)];

• “proceedings for dealing with an offender as a fugitive offender ” means proceedings before a metropolitan stipendiary magistrate under section 9 of the M3Extradition Act 1870, section 7 of the M4Fugitive Offenders Act 1967 or section 6 of the M5Criminal Justice Act 1988; and

• “remitted ”, in relation to a [F31youth court], means remitted under section 56(1) of the M6Children and Young Persons Act 1933;

and any reference, in relation to representation for the purposes of any proceedings, to the proceedings before a court includes a reference to any proceedings to which representation under this Part extends by virtue of subsection (2) or (3) above.

20 Competent authorities to grant representation under this Part.E+W

(1)Subject to any provision made by virtue of subsection (10) below, the following courts are competent to grant representation under this Part for the purposes of the following proceedings, on an application made for the purpose.

(2)The court before which any proceedings take place, or are to take place, is always competent as respects those proceedings, except that this does not apply to the House of Lords; and, in the case of the Court of Appeal and the Courts-Martial Appeal Court, the reference to proceedings which are to take place includes proceedings which may take place if notice of appeal is given or an application for leave to appeal is made.

(3)The Court of Appeal or, as the case may be, the Courts-Martial Appeal Court is also competent as respects proceedings on appeal from decisions of theirs to the House of Lords.

(4)The magistrates’ court—

(a)which commits a person for trial or sentence or to be dealt with in respect of a sentence,

[F33(aa)which sends a person for trial under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences),]

(b)which has been given a notice of transfer under section 4 of the M7Criminal Justice Act 1987 (transfer of serious fraud cases) [F34or section 53 of the Criminal Justice Act 1991 (transfer of certain cases involving children)], F35... [F36or]

F37(bb). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)from which a person appeals against his conviction or sentence,

is also competent as respects the proceedings before the Crown Court.

(5)The magistrates’ court inquiring into an offence as examining justices is also competent, before it decides whether or not to commit the person for trial, as respects any proceedings before the Crown Court on his trial.

[F38(5A)A magistrates’ court which has a duty or a power to send a person for trial under section 51 of the Crime and Disorder Act 1998 is also competent, before discharging that duty or (as the case may be) deciding whether to exercise that power, as respects any proceedings before the Crown Court on the person’s trial.]

(6)The Crown Court is also competent as respects applications for leave to appeal and proceedings on any appeal to the Court of Appeal under section 9(11) of the M8Criminal Justice Act 1987 (appeals against orders or rulings at preparatory hearings).

(7)On ordering a retrial under section 7 of the M9Criminal Appeal Act 1968 (new trials ordered by Court of Appeal or House of Lords on fresh evidence) the court ordering the retrial is also competent as respects the proceedings before the Crown Court.

(8)Any magistrates’ court to which, in accordance with regulations, a person applies for representation when he has been arrested for an offence but has not appeared or been brought before a court is competent as respects the proceedings in relation to the offence in any magistrates’ court.

(9)In the event of the Lord Chancellor making an order under section 3(4) as respects the function of granting representation under this Part for the purposes of proceedings before any court, the Board shall be competent as respects those proceedings, on an application made for the purpose.

(10)An order under section 3(4) may make provision restricting or excluding the competence of any court mentioned in any of subsections (2) to (8) above and may contain such transitional provisions as appear to the Lord Chancellor necessary or expedient.

21 Availability of representation under this Part.E+W

(1)Representation under this Part for the purposes of any criminal proceedings shall be available in accordance with this section to the accused or convicted person but shall not be available to the prosecution except in the case of an appeal to the Crown Court against conviction or sentence, for the purpose of enabling an individual who is not acting in an official capacity to resist the appeal.

(2)Subject to subsection (5) below, representation may be granted where it appears to the competent authority to be desirable to do so in the interests of justice; and section 22 applies for the interpretation of this subsection in relation to the proceedings to which that section applies.

(3)Subject to subsection (5) below, representation must be granted—

(a)where a person is committed [F39or sent] for trial on a charge of murder, for his trial;

(b)where the prosecutor appeals or applies for leave to appeal to the House of Lords, for the proceedings on the appeal;

(c)where a person charged with an offence before a magistrates’ court—

(i)is brought before the court in pursuance of a remand in custody when he may be again remanded or committed in custody, and

(ii)is not, but wishes to be, legally represented before the court (not having been legally represented when he was so remanded),

for so much of the proceedings as relates to the grant of bail; and

(d)where a person—

(i)is to be sentenced or otherwise dealt with for an offence by a magistrates’ court or the Crown Court, and

(ii)is to be kept in custody to enable enquiries or a report to be made to assist the court,

for the proceedings on sentencing or otherwise dealing with him.

(4)Subject to any provision made under section 3(4) by virtue of section 20(10), in a case falling within subsection (3)(a) above, it shall be for the magistrates’ court which commits [F40or sends] the person for trial, and not for the Crown Court, to make the grant of representation for his trial.

(5)Representation shall not be granted to any person unless it appears to the competent authority that his financial resources are such as, under regulations, make him eligible for representation under this Part.

(6)Before making a determination for the purposes of subsection (5) above in the case of any person, the competent authority shall, except in prescribed cases, require a statement of his financial resources in the prescribed form to be furnished to the authority.

(7)Where a doubt arises whether representation under this Part should be granted to any person, the doubt shall be resolved in that person’s favour.

(8)Where an application for representation for the purposes of an appeal to the Court of Appeal or the Courts-Martial Appeal Court is made to a competent authority before the giving of notice of appeal or the making of an application for leave to appeal, the authority may, in the first instance, exercise its power to grant representation by making a grant consisting of advice on the question whether there appear to be reasonable grounds of appeal and assistance in the preparation of an application for leave to appeal or in the giving of a notice of appeal.

(9)Representation granted by a competent authority may be amended or withdrawn, whether by that or another authority competent to grant representation under this Part.

(10)Regulations may provide for an appeal to lie to a specified court or body against any refusal by a magistrates’ court to grant representation under this Part and for that other court or body to make any grant of representation that could have been made by the magistrates’ court.

[F41(10A)Where section 44A of the Criminal Appeal Act 1968 (death of convicted person) applies, the reference in subsection (1) above to the convicted person shall be construed as a reference to the person approved under that section.]

(11)Subsection (3) above shall have effect in its application to a person who has not attained the age of eighteen as if the references in paragraphs (c) and (d) to remand in custody and to being remanded or kept in custody included references to being committed under section 23 of the M10Children and Young Persons Act 1969 to the care of a local authority or a remand centre.

22 Criteria for grant of representation for trial proceedings.E+W

(1)This section applies to proceedings by way of a trial by or before a magistrates’ court or the Crown Court or on an appeal to the Crown Court against a person’s conviction.

(2)The factors to be taken into account by a competent authority in determining whether it is in the interests of justice that representation be granted for the purposes of proceedings to which this section applies to an accused shall include the following—

(a)the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood or serious damage to his reputation;

(b)the determination of the case may involve consideration of a substantial question of law;

(c)the accused may be unable to understand the proceedings or to state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability;

(d)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;

(e)it is in the interests of someone other than the accused that the accused be represented.

(3)The Lord Chancellor may, by order, vary the factors listed in subsection (2) above by amending factors in the list or by adding new factors to the list.

23 Reimbursement of public funds by contributions.E+W

(1)Where representation under this Part is granted to any person whose financial resources are such as, under regulations, make him liable to make a contribution, the competent authority shall order him to pay a contribution in respect of the costs of his being represented under this Part.

(2)Where the legally assisted person has not attained the age of sixteen, the competent authority may, instead of or in addition to ordering him to make a contribution, order any person—

(a)who is an appropriate contributor in relation to him, and

(b)whose financial resources are such as, under regulations, make him liable to make a contribution,

to pay a contribution in respect of the costs of the representation granted to the legally assisted person.

(3)Regulations may authorise the making of a contribution order under subsection (1) or (2) above after the grant of representation in prescribed circumstances.

(4)The amount of the contribution to be required under subsection (1) or (2) above by the competent authority shall be such as is determined in accordance with the regulations.

(5)A legally assisted person or appropriate contributor may be required to make his contribution in one sum or by instalments as may be prescribed.

(6)Regulations may provide that no contribution order shall be made in connection with a grant of representation under this Part for the purposes of proceedings in the Crown Court, the Court of Appeal or the House of Lords in a case where a contribution order was made in connection with a grant of such representation to the person in question in respect of proceedings in a lower court.

(7)Subject to subsection (8) below, if the total contribution made in respect of the costs of representing any person under this Part exceeds those costs, the excess shall be repaid—

(a)where the contribution was made by one person only, to him; and

(b)where the contribution was made by two or more persons, to them in proportion to the amounts contributed by them.

(8)Where a contribution has been made in respect of the costs of representing any person under this Part in any proceedings and an order for costs is made in favour of that person in respect of those proceedings, then, where sums due under the order for costs are paid to the Board or the Lord Chancellor under section 20(2) of the M11Prosecution of Offences Act 1985 (recovery regulations)—

(a)if the costs of the representation do not exceed the sums so paid, subsection (7) above shall not apply and the contribution shall be repaid;

(b)if the costs of the representation do exceed the sums so paid, subsection (7) above shall apply as if the costs of the representation were equal to the excess.

(9)References in subsection (8) above to the costs of representation include any charge or fee treated as part of those costs by section 26(2).

(10)In this Part—

• “appropriate contributor ”, means a person of a description prescribed under section 34(2)(c); and

• “contribution order ” means an order under subsection (1) or (2) above.

24 Contribution orders: supplementary.E+W

(1)Where a competent authority grants representation under this Part and in connection with the grant makes a contribution order under which any sum is required to be paid on the making of the order, it may direct that the grant of representation shall not take effect until that sum is paid.

(2)Where a legally assisted person fails to pay any relevant contribution when it is due, the court in which the proceedings for the purposes of which he has been granted representation are being heard may, subject to subsection (3) below, revoke the grant.

(3)A court shall not exercise the power conferred by subsection (2) above unless, after affording the legally assisted person an opportunity of making representations in such manner as may be prescribed, it is satisfied—

(a)that he was able to pay the relevant contribution when it was due; and

(b)that he is able to pay the whole or part of it but has failed or refused to do so.

(4)In subsection (2) above “relevant contribution ”, in relation to a legally assisted person, means any sum—

(a)which he is required to pay by a contribution order made in connection with the grant to him of representation under this Part, and

(b)which falls due after the making of the order and before the conclusion of the proceedings for the purposes of which he has been granted such representation.

(5)Regulations with respect to contribution orders may—

(a)provide for their variation or revocation in prescribed circumstances;

(b)provide for their making in default of the prescribed evidence of a person’s financial resources;

(c)regulate their making after the grant of representation;

(d)authorise the remission or authorise or require the repayment in prescribed circumstances of sums due or paid under such orders; and

(e)prescribe the court or body by which any function under the regulations is to be exercisable.

(6)Schedule 3 to this Act shall have effect with respect to the enforcement of contribution orders.

25 Payment of costs of representation under this Part.E+W

(1)Where representation under this Part has been granted to any person the costs of representing him shall be paid—

(a)by the Lord Chancellor, or

(b)by the Board,

as the Lord Chancellor may direct.

(2)Subject to regulations, the costs of representing any person under this Part shall include sums on account of the fees payable to his [F42legal representative] and disbursements reasonably incurred by his [F42legal representative] for or in connection with his representation.

(3)The costs required by this section to be paid in respect of representing him shall not include any sum in respect of allowances to witnesses attending to give evidence in the proceedings for the purposes of which he is represented in any case where such allowances are payable under any other enactment.

26 Payment for advice or assistance where representation under this Part is subsequently granted.E+W

(1)This section has effect where—

(a)advice or assistance under Part III is given to a person in respect of any matter which is or becomes the subject of criminal proceedings against him; and

(b)he is subsequently granted representation under this Part for the purposes of those proceedings.

(2)If the [F43legal representative] acting for the person under the grant of representation is the [F44one] who gave him the advice or assistance, any charge or fee in respect of the advice or assistance which, apart from this section, would fall to be secured, recovered or paid as provided by section 11 shall instead be paid under section 25 as if it were part of the costs of the representation.

(3)If a contribution order is made in connection with the grant of representation under this Part to him—

(a)any sum which he is required by virtue of section 9(6) or (7) to pay in respect of the advice or assistance (whether or not already paid) shall be credited against the contribution to be made by him under the contribution order; and

(b)section 25 shall have effect in a case to which subsection (2) above applies as if the charges and fees properly chargeable in respect of the advice or assistance were part of the costs of the representation under this Part and as if any such sum as is mentioned in paragraph (a) above which he has paid were part of the contribution made under the contribution order.

Part VIE+W Legal Aid in Special Cases

Care proceedingsE+W

F4527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F4628. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Contempt proceedingsE+W

29 Representation in contempt proceedings.E+W

(1)This section applies to any proceedings where a person is liable to be committed or fined—

(a)by a magistrates’ court under section 12 of the M12Contempt of Court Act 1981;

(b)by a county court under section 14, 92 or 118 of the M13County Courts Act 1984;

(c)by any superior court for contempt in the face of that or any other court;

and in this Act “proceedings for contempt ” means so much of any proceedings as relates to dealing with a person as mentioned in paragraph (a), (b) or (c) above.

(2)In any proceedings for contempt against a person the court may order that he be granted representation under this section for the purposes of the proceedings if it appears to the court to be desirable to do so in the interests of justice.

(3)In this section, “superior court ” means the Court of Appeal, the High Court, the Crown Court, the Courts-Martial Appeal Court, the Restrictive Practices Court, the Employment Appeal Tribunal and any other court exercising in relation to its proceedings powers equivalent to those of the High Court, and includes the House of Lords in the exercise of its jurisdiction in relation to appeals from courts in England and Wales.

SupplementaryE+W

30 Supplementary.E+W

F47(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F47(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In Part V, section 25 shall apply for the purposes of representation in proceedings for contempt as it applies for the purposes of representation under that Part in criminal proceedings.

Part VIIE+W General and Supplementary

F4831. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F4932. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

33 Legal aid complaints against barristers and their exclusion from legal aid work.E+W

The following sections shall be substituted for sections 41 and 42 of the M14Administration of Justice Act 1985—

“41 Application to legal aid complaints against barristers of disciplinary provisions.

(1)The disciplinary provisions applicable to barristers shall apply to legal aid complaints relating to the conduct of barristers as they apply to other complaints about their conduct.

(2)Subject to any exclusion or restriction made by those provisions, any disciplinary tribunal which hears a legal aid complaint relating to the conduct of a barrister may, if it thinks fit and whether or not it makes any other order, order that any fees—

(a)otherwise payable in connection with his services under or in accordance with the Legal Aid Act 1988, or

(b)otherwise chargeable in connection with his services in respect of advice or assistance made available under Part III of that Act,

shall be reduced or cancelled.

(3)Accordingly, in so far as any of sections 9, 11, 15(6) and (7) and 25(2) of the Legal Aid Act 1988 (which relate to remuneration for legal aid work) has effect in relation to any fees reduced or cancelled by an order under subsection (2) above, it shall so have effect subject to the provisions of that order.

(4)An appeal shall lie in the case of an order under subsection (2) above in the same manner as an appeal would lie in the case of any other order of such a tribunal.

(5)The reference in subsection (2) above to a disciplinary tribunal is a reference to a tribunal acting under the disciplinary provisions applicable to barristers and it includes a reference to a member exercising any functions of the tribunal delegated to him.

42 Exclusion of barristers from legal aid work.

(1)Subject to any exclusion or restriction made by the disciplinary provisions applicable to barristers, where a disciplinary tribunal hears a charge of professional misconduct or breach of professional standards against a barrister, it may order that he shall be excluded from legal aid work, either temporarily or for a specified period, if it determines that there is good reason for the exclusion arising out of—

(a)his conduct in connection with any such services as are mentioned in section 40(1), or

(b)his professional conduct generally.

(2)Subsection (4) of section 41 shall apply to an order under subsection (1) as it applies to an order under subsection (2) of that section.

(3)The disciplinary provisions applicable to barristers shall include provision enabling a barrister who has been excluded from legal aid work under this section to apply for an order terminating his exclusion from such work.

(4)In this section—

(a)the reference to a disciplinary tribunal shall be construed in accordance with section 41(5); and

(b)references to a person being excluded from legal aid work are references to his being excluded from those who may be selected or assigned under section 32 of the Legal Aid Act 1988.”

F5034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5236. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5438. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5539. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F5640. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

41 Application to Crown.E+W

This Act binds the Crown.

F5742. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

43 Definitions.E+W

In this Act—

• “advice ”, “assistance ”[F58, “mediation ”]and “representation ” have the meanings assigned to them by section 2(2), (3) [F58, (3A)]and (4) respectively subject, however, to the other provisions of that section;

• [F59“authorised body ” has the meaning assigned by section 119(1) of the Courts and Legal Services Act 1990;]

• “the Board ” has the meaning assigned to it by section 3(1);

• “determination ”, in relation to the costs of advice or assistance [F58, “mediation ”]or representation for the purposes of proceedings, includes taxation and assessment;

• “financial resources ”, in relation to any person, includes any valuable facility which is available to him;

• [“ F60family matters ” has the meaning assigned by section 13A(2);]

• [F59“legal representative ” means an authorised advocate or authorised litigator, as defined by section 119(1) of the Courts and Legal Services Act 1990;]

• [F61“mediator ” means a person with whom the Board contracts for the provision of mediation by any person.]

• “order for costs ” includes any judgment, order, decree, award or direction for the payment of the costs of one party to any proceedings by another party, whether given or made in those proceedings or not;

• “prescribed ” means prescribed by regulations made by the Lord Chancellor under this Act;

• “proceedings for contempt ” has the meaning assigned to it by section 29(1);

• “regulations ” means regulations made by the Lord Chancellor under this Act;

• “sentence ”, in relation to a person, includes any order made on his conviction of an offence;

• “solicitor ” means solicitor of the Supreme Court;

• “statutory inquiry ” has the meaning assigned to it by [F62section 16(1) of the Tribunals and Inquiries Act 1992]; and

• “tribunal ” includes an arbitrator or umpire, however appointed, and whether the arbitration takes place under a reference by consent or otherwise.

Part VIIIE+W+S Miscellaneous

Scottish provisionsS

44 Scottish provisions.S

The M15Legal Aid (Scotland) Act 1986 shall have effect subject to the amendments specified in Schedule 4 to this Act.

SupplementaryE+W

F6345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F6446. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

47 Short title, commencement and extent.E+W

(1)This Act may be cited as the Legal Aid Act 1988.

(2)Subject to subsections (3) and (4) below, this Act shall come into force on such day as the Lord Chancellor appoints by order and different days may be appointed for different provisions.

(3)Section 44 and Schedule 4 shall come into force on such day as the Secretary of State appoints by order and different days may be appointed for different provisions.

(4)Sections 35 (together with the repeal of section 21 of the M16Legal Aid Act 1974) and 46 shall come into force on the date on which this Act is passed.

(5)An order under subsection (2) or (3) above may contain such transitional and saving provisions as appear to the Lord Chancellor or, as the case may be, the Secretary of State necessary or expedient.

(6)This Act, with the exception of sections 12(3) and 17(3), section 44 and Schedule 4 and the amendments or repeals of the enactments referred to in section 45(3), extends to England and Wales only and section 44 and Schedule 4 extend to Scotland only.

SCHEDULES

F65SCHEDULE 1E+W

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F66SCHEDULE 2E+W

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Sections 24 and 30.

SCHEDULE 3E+W Criminal proceedings: Enforcement of Contribution Orders

Part IE+W Orders made by a court

Collecting courtE+W

1In this Part “collecting court ”, in relation to a contribution order, means a magistrates’ court specified in the order; and the court so specified shall be—

(a)in a case where the court making the order is itself a magistrates’ court, that court;

(b)in a case where the order is made on an appeal from a magistrates’ court, or in respect of a person who was committed (whether for trial or otherwise by a magistrates’ court) to the Crown Court, the court from which the appeal is brought or, as the case may be, which committed him; and

(c)in any other case, a magistrates’ court nominated by the court making the order.

Enforcement proceedingsE+W

2(1)Any sum required to be paid by a contribution order shall be recoverable as if it had been adjudged to be paid by an order of the collecting court, subject to and in accordance with the provisions of this paragraph.

(2)Sections 17 (not more than one committal for same arrears) and 18 (power to review committal) of the M28Maintenance Orders Act 1958 shall apply as if a contribution order were a maintenance order.

(3)The collecting court may exercise, in relation to a contribution order, the power conferred by section 75 of the M29Magistrates’ Courts Act 1980 (power to dispense with immediate payment); and for the purposes of that section any provisions made by the authority which made the order as to time for payment, or payment by instalments, shall be treated as made by the collecting court.

(4)The following provisions of the Magistrates’ Courts Act 1980 shall apply as if a contribution order were enforceable as an affiliation order—

• section 80 (application of money found on defaulter to satisfy sum adjudged);

• section 93 (complaint for arrears);

• section 94 (effect of committal on arrears); and

• section 95 (power to remit arrears).

(5)Any costs awarded under section 64 of the Magistrates’ Courts Act 1980 on the hearing of a complaint for the enforcement of a contribution order shall be enforceable as a sum required to be paid by that order.

3(1)Without prejudice to paragraph 2, any sum required to be paid by a contribution order shall be enforceable by the High Court or a county court as if the sum were due to the clerk of the collecting court in pursuance of a judgment or order of the High Court or county court, as the case may be.

(2)The clerk of the collecting court shall not take proceedings by virtue of this paragraph unless authorised to do so by the court.

(3)This paragraph shall not authorise—

(a)the enforcement of a sum required to be paid by a contribution order by issue of a writ of fieri facias or other process against goods or by imprisonment or attachment of earnings; F76 . . .

F76(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4(1)Any expenses incurred by the clerk of a magistrates’ court in recovering any sum required to be paid by a contribution order shall be treated for the purposes of Part VI of [F77the Justices of the Peace Act 1997] as expenses of the magistrates’ courts committee.

(2)Any sum paid to a clerk of a magistrates’ court in or towards satisfaction of a liability imposed by a contribution order shall be paid by him to the Lord Chancellor and [F77section 60(4) of the Justices of the Peace Act 1997] (regulations as to accounts of justices’ clerks) shall apply in relation to sums payable to the Lord Chancellor under this sub-paragraph as it applies in relation to sums payable to the Secretary of State under that section.

Transfer of enforcement proceedings to different courtE+W

5(1)Where in relation to any contribution order it appears to the collecting court that the person subject to it is residing in a petty sessions area other than that for which the court acts, the court may make an order under this paragraph (“a transfer order ”) with respect to the contribution order specifying the other petty sessions area.

(2)Where a court makes a transfer order in relation to any contribution order—

(a)payment under the contribution order shall be enforceable in the petty sessions area specified in the transfer order; and

(b)as from the date of the transfer order, a magistrates’ court for that petty sessions area shall be substituted for the court which made the transfer order as the collecting court in relation to the contribution order.

Limitations on enforcement by proceedingsE+W

6Any sum due under a contribution order shall not be recoverable, and payment of any such sum shall not be enforced, under paragraph 2 or 3 until—

(a)the conclusion of the proceedings for the purposes of which the relevant grant of representation was made; or

(b)if earlier, the revocation or withdrawal of the relevant grant of representation.

7Where a contribution order has been made in respect of a member of Her Majesty’s armed forces and the Secretary of State notifies the collecting court that any sum payable under the order will be recovered by deductions from the person’s pay, the collecting court shall not enforce payment of any sum unless and until the Secretary of State subsequently notifies it that the person is no longer a member of those forces and that sum has not been fully recovered.

Power to defer enforcement proceedingsE+W

8The collecting court may defer recovering any sum due under a contribution order if—

(a)an appeal is pending in respect of the proceedings for the purposes of which the relevant grant of representation was made; or

(b)the person granted representation has been ordered to be retried.

InterpretationE+W

9In this Part—

(a)“relevant grant of representation ”, in relation to a contribution order, means the grant of representation in connection with which the order was made; and

(b)references to the proceedings for the purposes of which a grant of representation has been made include, where the proceedings are proceedings before a magistrates’ court which result—

(i)in the legally assisted person being committed to the Crown Court for trial or sentence, or

(ii)in his case being remitted to a [F78youth court] in pursuance of section 56(1) of the M30Children and Young Persons Act 1933,

the proceedings before the Crown Court or that [F78youth court].

Part IIE+W Orders made by the Board

Limitations on enforcement by proceedingsE+W

10(1)Any sum due under a contribution order shall not be recoverable, and payment of any such sum shall not be enforced until—

(a)the conclusion of the proceedings for the purposes of which the relevant grant of representation was made; or

(b)if earlier, the revocation or withdrawal of the relevant grant of representation.

(2)In this paragraph—

(a)“relevant grant of representation ”, in relation to a contribution order, means the grant of representation in connection with which the order was made; and

(b)the reference to the proceedings for the purposes of which the relevant grant of representation was made includes, where the proceedings are proceedings before a magistrates’ court which result—

(i)in the legally assisted person being committed to the Crown Court for trial or sentence, or

(ii)in his case being remitted to a [F79youth court] in pursuance of section 56(1) of the Children and Young Persons Act 1933,

the proceedings before the Crown Court or that [F79youth court].

11Where a contribution order has been made in respect of a member of Her Majesty’s armed forces and the Secretary of State notifies the Board that any sum payable under the order will be recovered by deductions from the person’s pay, the Board shall not enforce payment of any sum unless and until the Secretary of State subsequently notifies it that the person is no longer a member of those forces and that sum has not been fully recovered.

Section 44.

SCHEDULE 4S Amendments of Legal Aid (Scotland) Act 1986 (c. 47)

Part ISDirect payment of fees and outlays by legally assisted person

1In section 4(2) (payments out of the Scottish Legal Aid Fund)—

(a)in paragraph (a), after the word “due ” there shall be inserted the words “out of the Fund ”.

(b)in paragraph (c), the words “for the purposes of this Act ” are repealed.

2In section 16—

(a)subsection (1) is repealed;

(b)in subsection (2), the words “In this section and ” are repealed.

4In section 32 (a) (restriction on payment etc.), the words “, out of the Fund ” are repealed.

6In section 36(2) (regulations), in paragraph (b) at end add—

“and the power to substitute different amounts for the amount specified in section 10(2) of this Act includes power to substitute different amounts in relation to different cases or classes of case”.

Part IISLiability of legally assisted person for expenses to be assessed in all cases

7In section 18 (expenses)—

(a)subsection (1) is repealed;

(b)in subsection (2), for the words “in proceedings to which this section applies ”, there shall be substituted the words “in any proceedings ”.

8In section 19(1) (expenses out of the Fund), for the words “to which this section applies ” there shall be substituted the words “to which a legally assisted person is party and which are finally decided in favour of an unassisted party ”.

9In section 20(1) (supplementary), for the words “sections 18 and ” there shall be substituted the word “section ”.

Part IIISBoard’s property to be rateable

10In Schedule 1, paragraph 2(4) is repealed.

Section 45.

SCHEDULE 5U.K. Minor and Consequential Amendments

Public Records Act 1958 (c. 51)U.K.

1U.K.In Schedule 1 to the Public Records Act 1958 (definition of public records), there shall be inserted at the end of Part I of the Table at the end of paragraph 3 the following entry—

Parliamentary Commissioner Act 1967 (c. 13)U.K.

F822U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Attachment of Earnings Act 1971 (c. 32)U.K.

3In section 25(1) of the Attachment of Earnings Act 1971, for the words “section 7 or 8(2) of the Legal Aid Act 1982 ” there shall be substituted the words “section 23 of the Legal Aid Act 1988 ”.

House of Commons Disqualification Act 1975 (c. 24)U.K.

F834U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Northern Ireland Assembly Disqualification Act 1975 (c. 25)U.K.

F845U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sex Discrimination Act 1975 (c. 65)U.K.

6In section 75(4) of the Sex Discrimination Act 1975—

F85(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)for the words “any of those Acts for payment of any sum into the legal aid fund ” there shall be substituted the words “either of those Acts for payment of any sum to the Legal Aid Board or into the Scottish Legal Aid Fund ”.

Race Relations Act 1976 (c. 74)U.K.

7In section 66(6) of the Race Relations Act 1976—

F86(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)for the words “any of those Acts for payment of any sum into the legal aid fund ” there shall be substituted the words “either of those Acts for payment of any sum to the Legal Aid Board or into the Scottish Legal Aid Fund ”.

Child Care Act 1980 (c. 5)U.K.

F878U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Magistrates’ Courts Act 1980 (c. 43)U.K.

9In section 92(1)(b) of the Magistrates’ Courts Act 1980, for the words “section 7 or 8(2) of the Legal Aid Act 1982 ” there shall be substituted the words “section 23 of the Legal Aid Act 1988 ”.

Supreme Court Act 1981 (c. 54)U.K.

10In section 47(7) of the Supreme Court Act 1981, for the words “legal aid contribution order made under section 7 or 8(2) of the Legal Aid Act 1982 ” there shall be substituted the words “contribution order made under section 23 of the Legal Aid Act 1988 ”.

Telecommunications Act 1984 (c. 12)U.K.

11In section 52 of the Telecommunications Act 1984, the following subsection shall be substituted for subsection (5)—

“(5)A charge conferred by subsection (4) above is subject to—

(a)any charge under the Legal Aid Act 1988 and any provision of that Act for payment of any sum to the Legal Aid Board;

(b)any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 and any provision of that Act for payment of any sum into the Scottish Legal Aid Fund; or

(c)any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and any provision of that Order for payment of any sum into the legal aid fund.”

Prosecution of Offences Act 1985 (c. 23)U.K.

12In section 19(2)(b) of the Prosecution of Offences Act 1985, the words “(including any legal aid order) ” shall be omitted and at the end of that paragraph there shall be inserted the words “or any grant of representation for the purposes of the proceedings which has been made under the Legal Aid Act 1988. ”

13U.K.In section 20(2) of that Act, for the words “out of the legal aid fund or ” there shall be substituted the words “by the Legal Aid Board or out of ”.

14U.K.In section 21(1) of that Act, for the definition of “legally assisted person ” there shall be substituted the following—

““legally assisted person ”, in relation to any proceedings, means a person to whom representation under the Legal Aid Act 1988 has been granted for the purposes of the proceedings;”.

15U.K.In section 21 of that Act, after subsection (4), there shall be inserted the following subsection—

“(4A)Where one party to any proceedings is a legally assisted person then—

(a)for the purposes of sections 16 and 17 of this Act, his costs shall be taken not to include either the expenses incurred on his behalf by the Legal Aid Board or the Lord Chancellor or, if he is liable to make a contribution under section 23 of the Legal Aid Act 1988, any sum paid or payable by way of contribution; and

(b)for the purposes of sections 18 and 19 of this Act, his costs shall be taken to include the expenses incurred on his behalf by the Legal Aid Board or the Lord Chancellor (without any deduction on account of any contribution paid or payable under section 23 of the Legal Aid Act 1988) but, if he is liable to make such a contribution his costs shall be taken not to include any sum paid or payable by way of contribution.”

Child Abduction and Custody Act 1985 (c. 60)U.K.

F8816U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Administration of Justice Act 1985 (c. 61)U.K.

17U.K.In section 40 of the Administration of Justice Act 1985 (preliminary provisions concerning legal aid complaints), for the words from the beginning of paragraph (a) to the end there shall be substituted the words “the provision for any person of services under the Legal Aid Act 1988 including, in the case of a solicitor, provision for any person of such services in the capacity of agent for that person’s solicitor. ”

[F8918U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

19In section 44 of that Act—

(a)in subsection (3), in the inserted subsection (2A), for the words from the beginning of paragraph (a) to the end there shall be substituted the words—

“(a)his conduct, including conduct in the capacity of agent for another solicitor, in connection with the provision for any person of services under the Legal Aid Act 1988; or

(b)his professional conduct generally.”; and

(b)in subsection (4), in the inserted subsection (6), for the words from “each ” to the end there shall be substituted the words “those who may be selected or assigned for the purpose of providing for any person services under the Legal Aid Act 1988. ”

Housing Act 1985 (c. 68)U.K.

F9020U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Family Law Act 1986 (c. 55)U.K.

F9121U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal Justice Act 1987 (c. 38)U.K.

22In section 4(1) of the Criminal Justice Act 1987, for the words “section 28(7A) of the Legal Aid Act 1974 ” there shall be substituted the words “section 20(4) of the Legal Aid Act 1988 ”.

F92SCHEDULE 6U.K.

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F93SCHEDULE 7E+W

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F97SCHEDULE 8E+W

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