Criminal Defence Service
PART I
Criminal Defence Service.
12. - (1) The Commission shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.
(2) In this Part "criminal proceedings" means -
(b) proceedings before any court for dealing with an individual convicted of an offence (including proceedings in respect of a sentence or order),
(c) proceedings for dealing with an individual under section 9 of, or paragraph 6 of Schedule 1 to, the Extradition Act 1989, [1989 c. 33.],
(d) proceedings for binding an individual over to keep the peace or to be of good behaviour under section 115 of the Magistrates' Courts Act 1980 [1980 c. 43.] and for dealing with an individual who fails to comply with an order under that section,
(e) proceedings on an appeal brought by an individual under section 44A of the Criminal Appeal Act 1968 [1968 c. 19.],
(f) proceedings for contempt committed, or alleged to have been committed, by an individual in the face of a court, and
(g) such other proceedings concerning an individual, before any such court or other body, as may be prescribed.
(3) The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 13 to 15.
(4) The Commission may accredit, or authorise others to accredit, persons or bodies providing services which may be funded by the Commission as part of the Criminal Defence Service; and any system of accreditation shall include provision for the monitoring of the services provided by accredited persons and bodies and for the withdrawal of accreditation from any providing services of unsatisfactory quality.
(5) The Commission may charge -
(b) for monitoring the services provided by accredited persons and bodies, and
(c) for authorising accreditation by others;
and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.
(6) The Lord Chancellor may by order require the Commission to discharge the functions in subsections (4) and (5) in accordance with the order.
Advice and Assistance.
13. - (1) The Commission shall fund such advice and assistance as it considers appropriate -
(b) for individuals involved in criminal investigations in such other circumstances as may be prescribed;
and for this purpose "criminal investigations" means investigations relating to offences or to individuals convicted of an offence.
(2) The Commission may comply with the duty imposed by subsection (1) by -
(b) making payments to persons or bodies in respect of the provision of advice or assistance by them,
(c) making grants or loans to persons or bodies to enable them to provide, or facilitate the provision of, advice or assistance,
(d) establishing and maintaining bodies to provide, or facilitate the provision of, advice or assistance,
(e) making grants to individuals to enable them to obtain advice or assistance,
(f) employing persons to provide advice or assistance, or
(g) doing anything else which it considers appropriate for funding advice and assistance.
(3) The Lord Chancellor may by order require the Commission to discharge the function in subsection (2) in accordance with the order.
(4) The Commission may fund advice and assistance by different means -
(b) in relation to different descriptions of cases.
Representation.
14. - (1) Schedule 3 (which makes provision about the grant of a right to representation in criminal proceedings) has effect; and the Commission shall fund representation to which an individual has been granted a right in accordance with that Schedule.
(2) Subject to the following provisions, the Commission may comply with the duty imposed by subsection (1) by -
(b) making payments to persons or bodies in respect of the provision of representation by them,
(c) making grants or loans to persons or bodies to enable them to provide, or facilitate the provision of, representation,
(d) establishing and maintaining bodies to provide, or facilitate the provision of, representation,
(e) making grants to individuals to enable them to obtain representation,
(f) employing persons to provide representation, or
(g) doing anything else which it considers appropriate for funding representation.
(3) The Lord Chancellor -
(b) may by order make any other provision requiring the Commission to discharge the function in subsection (2) in accordance with the order.
(4) For the purposes of subsection (3)(a) representation is provided by a non- contracted private practitioner if it is provided, otherwise than pursuant to a contract entered into by the Commission, by a person or body which is neither -
(b) the Commission itself or a body established or maintained by the Commission.
(5) The provision which the Lord Chancellor is required to make by order under subsection (3)(a) includes provision for reviews of, or appeals against, determinations required for the purposes of the order.
(6) The Commission may fund representation by different means-
(b) in relation to different descriptions of cases.
Selection of Representative.
15. - (1) An individual who has been granted a right to representation in accordance with Schedule 3 may select any representative or representatives willing to act for him; and, where he does so, the Commission is to comply with the duty imposed by section 14(1) by funding representation by the selected representative or representatives.
(2) Regulations may provide that in prescribed circumstances -
(b) an individual who has been provided with advice or assistance funded by the Commission under section 13 by person whom he chose to provide it for him is to be taken have selected that person as his representative pursuant to that right,
(c) that right is not to include a right to select a representative of a prescribed description,
(d) that right is to select only a representative of a prescribed description,
(e) that right is to select not more than a prescribed number of representatives to act at any one time, and
(f) that right is not to include a right to select a representative in place of a representative previously selected.
(3) Regulations under subsection (2)(b) may prescribe circumstances in which an individual is to be taken to have chosen a person to provide advice or assistance for him.
(4) Regulations under subsection (2) may not provide that only a Person employed by the Commission, or by a body established and maintained by the Commission, may be selected.
(5) Regulations may provide that in prescribed circumstances the Commission is not required to fund, or to continue to fund, representation for an individual by a particular representative (but such provision shall not prejudice any right of the individual to select another representative).
(6) The circumstances which may be prescribed by regulations under subsection (2) or (5) include that a determination has been made by a prescribed body or person.
Code of conduct
16 - (1) The Commission shall prepare a code of conduct to be observed by employees of the Commission, and employees of any body established and maintained by the Commission, in the provision of services as part of the Criminal Defence Service.
(2) The code shall include -
(b) duties to protect the interests of the individuals for whom services are provided,
(c) duties to the court,
(d) duties to avoid conflicts of interest, and
(e) duties of confidentiality,
and duties on employees who are members of a professional body to comply with the rules of the body.
(3) The Commission may from time to time prepare a revised version of the code.
(4) Before preparing or revising the c ode the Commission shall consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate.
(5) After preparing the code or a revised version of the code the Commission shall send a copy to the Lord Chancellor.
(6) If he approves it he shall lay it before each House of Parliament.
(7) The Commission shall publish -
(b) where he approves a revised version, either the revisions or the revised code as appropriate.
(8) The code, and any revised version of the code, shall not come into force until it has been approved by a resolution of each House of Parliament.
Terms of provision of funded services.
17. - (1) An individual for whom services are funded by the Commission as part of the Criminal Defence Service shall not be required to make any payment in respect of the services except where subsection (2) applies.
(2) Where representation for an individual in respect of criminal proceedings in any court other than a magistrates' court is funded by the Commission as part of the Criminal Defence Service, the court may, subject to regulations under subsection (3), make an order requiring him to pay some or all of the cost of any representation so funded for him (in proceedings in that or any other court).
(3) Regulations may make provision about -
(b) the circumstances in which such an order may be made and the principles to be applied in deciding whether to make such an order and the amount to be paid,
(c) the determination of the cost of representation for the purposes of the making of such an order,
(d) the furnishing of information and evidence to the court or the Commission for the purpose of enabling the court to decide whether to make such an order and (if so) the amount to be paid,
(e) prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,
(f) the person or body to which, and manner in which, payments required by such an order must be made and what that person or body is to do with them, and
(g) the enforcement of such an order (including provision for the imposition of charges in respect of unpaid amounts).
Funding.
18. - (1) The Lord Chancellor shall pay to the Commission such sums as are required to meet the costs of any advice, assistance and representation funded by the Commission as part of the Criminal Defence Service.
(2) The Lord Chancellor may -
(b) impose conditions on the payment of the sums.
(3) In funding services as part of the Criminal Defence Service the Commission shall aim to obtain the best possible value for money.
Section 14
SCHEDULE 3
Criminal Defence Service: RIGHT TO PEPRESENTATION
Individuals to whom right may be granted
1. - (1) 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).
(2) A right to representation for the purposes of criminal proceedings may also be granted to an individual to enable him to resist an appeal to the Crown Court otherwise than in an official capacity.
(3) In this Schedule "court" includes any body before which criminal proceedings take place.
Grant of right by court
2. - (1) A court before which any criminal proceedings take place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed.
(2) Where a right to representation is granted for the purposes of criminal proceedings it includes the right to representation for the purposes of any related bail proceedings and any preliminary or incidental proceedings; and regulations may make provision specifying whether any proceedings are or are not to be regarded as preliminary or incidental.
(3) A court also has power to grant a right to representation for the purposes of criminal proceedings before another court in such circumstances as may be prescribed.
(4) The form of the application for a grant of a right to representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.
(5) A right to representation in respect of proceedings may be withdrawn by any court before which the proceedings take place; aid a court must consider whether to withdraw a right to representation in such circumstances as may be prescribed.
(6) The powers of a magistrates' court for any area under this paragraph may be exercised by a single justice of the peace for the area.
(7) Any rules under section 144 of the Magistrates' Courts Act 1980 [1980 c. 43.] which provide for the functions of a single justice under sub-paragraph (6) to be exercised by a justices' clerk may make different provision for different areas.
Grant of right by commission
3. - (1) Regulations may provide that the Commission shall have power to grant rights to representation in respect of any one or more of the descriptions of proceedings prescribed under section 12(2)(g), and to withdraw any rights to representation granted by it.
(2) The form of any application for a grant of a right to representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.
(3) Regulations under sub-paragraph (1) may make such transitional provisions as the Lord Chancellor may consider appropriate.
Appeals
(4) Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right to representation or to withdraw a right to representation.
Criteria for grant of right
4. - (1) Any question as to whether a right to representation should be granted shall be determined according to the interests of justice.
(2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account -
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross- examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented.
(3) The Lord Chancellor may by order amend sub-paragraph (2) by adding new factors or varying any factor.
(4) A right to representation shall always be granted in such circumstances as may be prescribed.