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Criminal Defence Service (Advice And Assistance) Bill [H.L.]


 

These notes refer to the Criminal Defence Service (Advice and Assistance) Bill [H.L.]
as introduced in the House of Lords on 7th December 2000 [HL Bill 1]

Criminal Defence Service (Advice And Assistance) Bill [H.L.]


EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Criminal Defence Service (Advice and Assistance) Bill [H.L.] as introduced in the House of Lords on 7th December 2000. They have been prepared by the Lord Chancellor's Department in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment none is given.

SUMMARY

3. This Bill clarifies the extent of the Legal Service Commission's duty to fund advice and assistance as part of the new Criminal Defence Service under section 13 of the Access to Justice Act 1999.

4. Under current legislation, it is possible for advice and assistance to include, in certain circumstances, limited representation at a court or other hearing. (This is known as Advice by way of Representation - ABWOR). It was always the intention that such limited representation would continue to be available in the same circumstances when the Criminal Defence Service sections of the Access to Justice Act 1999 come into force on 2nd April 2001, and replace the legal aid scheme.

5. There is some doubt that the interaction of sections 13 and 14 of the Access to Justice Act 1999 allows for this limited form of representation. There is also a doubt about whether section 13 currently allows the funding of advice and assistance for people who are, may be or have been, involved in quasi-criminal proceedings.

6. This Bill seeks to remedy those doubts by amending section 13 before it comes into force.

BACKGROUND

7. The Legal Services Commission was established by the Access to Justice Act 1999. That Act replaces the legal aid system with two new schemes (the Community Legal Service and the Criminal Defence Service) to secure the provision of publicly funded legal services for people who need them. The Legal Services Commission, which will replace the Legal Aid Board, will run the two schemes.

8. In criminal cases, the Criminal Defence Service will replace the current legal aid scheme. Section 12 of the Access to Justice Act 1999 requires the Commission to establish, maintain and develop the Criminal Defence Service.

9. The purpose of the Criminal Defence Service as set out in section 12(1) is to secure that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.

10. Section 12(3) imposes a duty on the Commission to fund services as part of the Criminal Defence Service in accordance with sections 13 to 15 of the Access to Justice Act 1999.

11. Section 13 sets out the extent of the duty to fund advice and assistance. This is explained in more detail in paragraph 13.

12. Section 14 requires the Commission to fund representation for an individual who has been granted a right to representation. *     Representation is defined in section 26 of the Access to Justice Act 1999 as meaning representation for the purposes of proceedings and includes the assistance which is usually given by a representative in the steps preliminary or incidental to any proceedings, and subject to any time limits which may be prescribed, advice and assistance as to any appeal.

A right to representation must be granted in accordance with Schedule 3 to the Access to Justice Act 1999, which sets out how and at what stage it may be granted, and the criteria (the interests of justice test) for the grant of the right.

The extent of the duty to fund advice and assistance as enacted

13. Section 13(1) as enacted provides that the Commission must fund such advice and assistance as it considers appropriate for individuals who are arrested and held in custody at a police station or other premises, and for individuals involved in criminal investigations in such other circumstances as may be prescribed.

*     criminal investigations is defined for the purpose of section 13 as meaning investigations relating to offences or to individuals convicted of an offence.

14. The intention was that this advice and assistance would include some limited representation in the form of advocacy. It was intended that advocacy assistance would be available in broadly the same situations for which is it is now available under the Legal Aid Act 1988 as part of the ABWOR scheme.

Part III of the Legal Aid Act 1988 and regulations made under it set out the scope of the ABWOR scheme.

15. Advocacy assistance currently provided under the ABWOR scheme includes-

  • the duty solicitor scheme at magistrates' courts;

  • assistance to a prisoner who has been permitted to be legally represented in disciplinary proceedings;

  • assistance to a detained person whose case is referred to the Parole Board.

The duty solicitor scheme

16. A duty solicitor (under arrangements made by the local duty solicitor committee) attends a magistrates' court to give advice and assistance to accused individuals, including assistance by way of representation, such as-

  • making a bail application;

  • representing a defendant in court proceedings who enters a guilty plea and wishes the case to be concluded on that day;

  • representing an accused person who is at court and at risk of being imprisoned for failure to pay a fine or obey a court order.

17. It is arguable that section 13 as currently enacted does not allow the Commission to fund limited representation in the form of advocacy in the types of situation listed in paragraph 16. The concern is that a person involved in a hearing before a court or other body might not be involved in a criminal investigation while the hearing takes place (even though he has been and may later again become so involved). The fact that "assistance" is not currently defined to include advocacy arguably compounds the uncertainty, particularly as it is so defined in the existing legal aid provisions.

18. Further, representation, granted in accordance with section 14 of and Schedule 3 to the Access to Justice Act 1999, will not be available to individuals in the types of situations currently covered by the ABWOR scheme. Representation will not be available where an individual needs representation urgently - for example where an individual is charged with an offence he or she will often appear in court within 48 hours. The individual may not have time to apply for (and there may not be time for the court to consider) the grant of representation under section 14. It is also recognised that an individual may not be entitled to representation under section 14 because he fails to satisfy the interests of justice criteria, but that it is still appropriate that he receives some limited assistance in prescribed circumstances.

19. The Bill amends section 13 to put beyond doubt that limited advocacy assistance can be funded.

Widening the classes of individual in respect of whom the Commission may fund advice and assistance

20. The amendment of section 13(1) also widens the Commission's power to fund advice and assistance for other individuals who may be currently outside the scope of section 13 (1).

21. As enacted, section 13(1) provides the Commission with power to fund individuals who are held in custody, and individuals who are not held in custody but who are currently involved in criminal investigations.

22. The duty to fund advice and assistance as enacted appears narrower than the duty under section 12 to secure that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.

23. On a literal reading section 13(1) is more restrictive because it focuses only on criminal investigations and not on criminal proceedings as set out in section 12(2) - including those proceedings which the Lord Chancellor may prescribe by regulations under section 12 (2)(g). It seems likely that certain quasi-criminal proceedings (for example proceedings for anti-social behaviour orders) will be prescribed under section 12(2)(g). It was always intended that advice and assistance would be capable of funding individuals who are, may be, or have been involved in such proceedings.

24. The second purpose of this Bill is therefore to amend section 13(1) to widen the power to fund individuals who may not be within the scope of the section as enacted.

COMMENTARY

25. Clause 1. Clause 1 seeks to remedy the apparent deficiencies in section 13(1) of the Access to Justice Act 1999, by amending it -

  • to make it clear that the assistance that the Commission may consider it appropriate to fund under section 13 does include advocacy;

  • to add to the classes of individual in respect of whom the Commission may, in prescribed circumstances, fund advice and assistance.

26. Advocacy is used in the amendment to section 13(1) to avoid possible confusion with representation as defined in section 26 of the Access to Justice Act 1999. It is not considered necessary to define advocacy.

FINANCIAL AND PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL

27. The Bill will not increase public expenditure (or public service manpower) as it does not make any changes to the current method of provision of legal services, or to the scope of those services.

SUMMARY OF THE REGULATORY APPRAISAL

28. This Bill does not make any changes to the current method of provision of legal services, or to the scope of those services. The Regulatory Impact Unit has agreed that, in these circumstances, it is content that no regulatory impact assessment is undertaken.

EUROPEAN CONVENTION ON HUMAN RIGHTS

29. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Chancellor has made the following statement:

In my view, the provisions of the Criminal Defence Service (Advice and Assistance) Bill [H.L.] are compatible with the Convention Rights.

COMMENCEMENT DATE

30.     This Bill will come into force on 2nd April 2001, the same day as the relevant sections of the Access to Justice Act 1999.

Section 13(1) of the Access to Justice Act, as amended by this Bill, reads as follows- 13.--(1) The Commission shall fund such advice and assistance as it considers appropriate-

(a) for individuals who are arrested and held in custody at a police station or other premises, and

(b) in prescribed circumstances, for individuals who?

    (i) are not within paragraph (a) but are involved in investigations which may lead to criminal proceedings,
    (ii) are before a court or other body in such proceedings,

or,

    (iii) have been the subject of such proceedings;

and the assistance which the Commission may consider appropriate includes assistance in the form of advocacy.

 
 
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