Northern Ireland Act 1998

Bail and legal aid in criminal proceedings U.K.

39 (1) Sub-paragraph (3) applies where a devolution issue arises in proceedings against a person (“the defendant”) for an offence and the issue is referred to the Court of Appeal in Northern Ireland under paragraph 7. U.K.

(2) [F1 Sub-paragraph (3) applies] where such an issue arises in such proceedings and—

(a) the issue is referred by the [F2 Court of Appeal] to the [F3 Supreme Court] under paragraph 9 or 33; or

(b) the issue is determined by the [F2 Court of Appeal] under paragraph 7 and—

(i) an appeal to the [F3 Supreme Court] against the determination is brought under paragraph 10; or

(ii) an application for leave to bring such an appeal is made to the [F2 Court of Appeal] under that paragraph.

(3) The [F2 Court of Appeal] may, if it thinks fit, on the application of the defendant, admit him to bail pending the determination of the reference, appeal or application.

(4) The [F2 Court of Appeal] may at any time when it appears to the [F2 Court of Appeal]—

(a) that it is desirable in the interests of justice that the defendant should have legal aid; and

(b) that he has not sufficient means to obtain that aid,

assign to him a solicitor and counsel, or counsel only, in the reference, appeal or application.

(5) If, on a question of granting a person free legal aid under sub-paragraph (4), there is a doubt—

(a) whether it is desirable in the interests of justice that he should have legal aid; or

(b) whether he has sufficient means to obtain that aid,

the doubt shall be resolved in favour of granting him free legal aid.

(6) The fees of any counsel, and the expenses and fees of any solicitor, assigned to a person under sub-paragraph (4) shall be defrayed, up to an amount allowed by the Master (Taxing Office), by the Lord Chancellor F4 ....

Textual Amendments

F1 Words in Sch. 10 para. 39(2) substituted (1.4.2015) by Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), art. 1(2), Sch. 4 para. 14 (with art. 45); S.R. 2015/194, art. 2, Sch. (with art. 3)

F2 Words in Sch. 10 para. 39(2)-(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(6)(a); S.I. 2009/1604, art. 2(a)(d)

F3 Words in Sch. 10 para. 39(2)-(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 118(6)(b); S.I. 2009/1604, art. 2(a)(d)

F4 Words in Sch. 10 para. 39(6) omitted (12.4.2010) by virtue of The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 18 para. 58(2) (with arts. 28-31)

Modifications etc. (not altering text)

C1 Sch. 10 para. 39(6): transfer of functions (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 17 para. 16 (with arts. 28-31)

40 U.K. Where a devolution issue arises as mentioned in sub-paragraph (1) of paragraph 39 and—

(a) the issue is referred to the [F5 Supreme Court] under paragraph 9 or 33; or

(b) the issue is determined by the Court of Appeal in Northern Ireland under paragraph 7 and—

(i) an appeal to the [F5 Supreme Court] against the determination is brought under paragraph 10; or

(ii) an application for special leave to bring such an appeal is made to the [F5 Supreme Court] under that paragraph,

sub-paragraphs (3) to (6) of paragraph 39 shall apply as if the references to the [F6 Court of Appeal] were references to the [F5 Supreme Court] .

Textual Amendments

F5 Words in Sch. 10 para. 40(a)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 119(a); S.I. 2009/1604, art. 2(a)(d)

F6 Words in Sch. 10 para. 40(a)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 119(b); S.I. 2009/1604, art. 2(a)(d)