The Criminal Legal Aid (Determinations by a Court and Choice of Representative) (Amendment) Regulations 2013

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend Part 3 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (S.I. 2013/614) (“the the Regulations”). Part 3 of the the Regulations makes provision for the circumstances in which a relevant court may permit a defendant who qualifies for criminal legal aid to select a Queen’s Counsel or multiple advocates to represent them.

Regulation 2(2) amends sub-paragraph (a) of the definition of “the prosecution condition” in regulation 18(7) of the the Regulations, which applies where two or more advocates have been instructed on behalf of the prosecution. The prosecution condition is one of the conditions set out in regulation 18 of the the Regulations. If the relevant conditions in regulation 18 are met, this enables the court to make a determination that permits a defendant to instruct multiple advocates. The amended definition of “the prosecution condition” provides that the condition will be met only where the court is satisfied that the defendant will be prejudiced, or will likely to be prejudiced, if they are not represented by two or more advocates in circumstances in which the prosecution has two or more advocates.

Regulation 2(3) substitutes regulation 19 of the the Regulations to set out the judges who may make a determination in relation to multiple Counsel or Queen’s Counsel. In the Crown Court, the trial judge may make such a determination or, if a trial judge has not been assigned, the resident judge may make such a determination. The resident judge may also nominate another judge to make such a determination if the resident judge is absent. Regulation 19(2) provides that a determination made by the trial judge or the resident judge of the Crown Court (or a judge nominated for that purpose by the resident judge) that an individual is entitled to select a Queen’s Counsel or more than one advocate, does not take effect without the approval of a presiding judge of the circuit or their nominee.

A full impact assessment of the effect of the policy implemented by this instrument on the costs of business and the voluntary sector was produced with the Government’s response to consultation, Transforming Legal Aid: Next Steps, and is available at https://consult.justice.gov.uk/.