The Criminal Legal Aid (General) Regulations 2013

Statutory Instruments

2013 No. 9

Legal Aid And Advice, England And Wales

The Criminal Legal Aid (General) Regulations 2013

Made

9th January 2013

Laid before Parliament

14th January 2013

Coming into force

1st April 2013

The Lord Chancellor makes the following Regulations(1) in exercise of the powers conferred by sections 5(2) and (4), 13(4) and (5), 14(h), 15(1), (4) to (7) and (9), 16(4) and (6), 17(4), 18(3), (4) and (6), 28(1) and (3), 30(2) and (3), 41(1), (2) and (3) of, and paragraphs 4(1) and (3), 5(4), (7) and (13) and 9(3) of Schedule 3 to, the Legal Aid, Sentencing and Punishment of Offenders Act 2012(2).

In making these Regulations, in accordance with section 15(3)(3) of that Act, the Lord Chancellor has had regard, in particular, to the interests of justice.

PART 1 E+W Interpretation and General

Citation and commencement E+W

1.  These Regulations may be cited as the Criminal Legal Aid (General) Regulations 2013 and come into force on 1st April 2013.

Commencement Information

I1 Reg. 1 in force at 1.4.2013, see reg. 1

Interpretation E+W

2.  In these Regulations—

“the Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

“constable” means a member of a police force, an officer of the British Transport Police Force, an officer of Revenue and Customs and any other official who has a power of arrest by virtue of their office;

“criminal legal aid” means advice, assistance and representation made available under sections 13, 15 and 16 of the Act;

[F1 “Financial Resources Regulations” means the Criminal Legal Aid (Financial Resources) Regulations 2013;]

“provider” means a person with whom the Lord Chancellor has made an arrangement under section 2(1) of the Act (arrangements) for the provision of criminal legal aid;

“representation order” means a document which records a determination under section 16 of the Act (representation for criminal proceedings);

[F2 “Unit of Work” has the meaning given in paragraph 1.3 of the Specification to the 2017 Standard Crime Contract];

“[F3 2017 Standard Crime Contract]” means the contract so named between the Lord Chancellor and providers for the provision of criminal legal aid(4).

Textual Amendments

F1 Words in reg. 2 inserted (27.1.2014) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(3), 3

F2 Words in reg. 2 substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(2)(a) (with reg. 5)

F3 Words in reg. 2 substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(2)(b) (with reg. 5)

Commencement Information

I2 Reg. 2 in force at 1.4.2013, see reg. 1

Disregarding determinations E+W

3.  A determination may be disregarded if made in response to an application made otherwise than in accordance with these Regulations.

Commencement Information

I3 Reg. 3 in force at 1.4.2013, see reg. 1

Delegation E+W

4.  A function of the Lord Chancellor or Director(5) under these Regulations may be exercised by, or by an employee of, a person authorised for that purpose by the Lord Chancellor or Director respectively(6).

Commencement Information

I4 Reg. 4 in force at 1.4.2013, see reg. 1

Reporting duty E+W

5.—(1) Notwithstanding the relationship between an individual and the provider or any privilege arising out of that relationship, where the provider knows or suspects that the individual—

(a) has failed without good reason to comply with a requirement to provide information or documents; or

(b) in providing such required information or documents has made a statement or representation knowing or believing it to be false,

the provider must immediately report the relevant circumstances to the Director.

(2) The withdrawal of a determination does not affect a provider’s right to remuneration for work done prior to the date on which a determination is withdrawn under these Regulations unless the provider has failed without good reason to comply with the reporting requirements in paragraph (1).

Commencement Information

I5 Reg. 5 in force at 1.4.2013, see reg. 1

Transfer of documents E+W

6.—(1) This regulation applies where an individual—

(a) is sent F4 ... for trial to the Crown Court; or

(b) appeals or seeks permission to appeal from a lower court to a higher court.

(2) An officer of the lower court must ensure that the following documents are sent from the lower court to the higher court—

(a) a copy of any representation order made in the proceedings; and

(b) a copy of any application for a representation order in relation to the proceedings which has been refused.

Textual Amendments

F4 Words in reg. 6(1)(a) omitted (5.10.2015) by virtue of The Civil and Criminal Legal Aid (Amendment) (No.2) Regulations 2015 (S.I. 2015/1678), regs. 1(2)(a), 3 (with reg. 10(1))

Commencement Information

I6 Reg. 6 in force at 1.4.2013, see reg. 1

PART 2 E+W Advice and assistance for individuals in custody

General E+W

7.  This Part makes provision about the making of determinations by the Director under section 13 of the Act (advice and assistance for individuals in custody).

Commencement Information

I7 Reg. 7 in force at 1.4.2013, see reg. 1

Applications E+W

8.  An application for initial advice and initial assistance must be made—

(a) to the Defence Solicitor Call Centre established by the Lord Chancellor under section 2 of the Act (arrangements); and

(b) in accordance with the requirements set out in the [F5 2017 Standard Crime Contract] for the Unit of Work which is the subject of the application.

Textual Amendments

F5 Words in reg. 8(b) substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(a) (with reg. 5)

Commencement Information

I8 Reg. 8 in force at 1.4.2013, see reg. 1

PART 3 E+W Criminal proceedings

Criminal proceedings E+W

9.  The following proceedings are criminal proceedings for the purposes of section 14(h) of the Act (criminal proceedings)—

(a) civil proceedings in a magistrates’ court arising from a failure to pay a sum due or to obey an order of that court where such failure carries the risk of imprisonment;

(b) proceedings under sections 14B, 14D, 14G, 14H, 21B and 21D of the Football Spectators Act 1989(7) in relation to banning orders and references to a court;

(c) proceedings under section 5A of the Protection from Harassment Act 1997(8) in relation to restraining orders on acquittal;

F6 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F7 (f) proceedings in relation to parenting orders made under section 8(1)(b) of the Crime and Disorder Act 1998 where an order under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 or a sexual harm prevention order under section 103A of the Sexual Offences Act 2003 is made;]

(g) proceedings under section 8(1)(c) of the Crime and Disorder Act 1998(9) in relation to parenting orders made on the conviction of a child;

(h) proceedings under section 9(5) of the Crime and Disorder Act 1998 to discharge or vary a parenting order made as set out in sub-paragraph (f) or (g);

(i) proceedings under section 10 of the Crime and Disorder Act 1998(10) in relation to an appeal against a parenting order made as set out in sub-paragraph (f) or (g);

(j) proceedings under Part 1A of Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000(11) in relation to parenting orders for failure to comply with orders under section 20 of that Act;

[F8 (ja) proceedings in a youth court (or on appeal from such a court) in relation to the breach or potential breach of a provision of an injunction under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 where the person who is subject to the injunction is aged under 14;]

[F9 (k) proceedings under sections 80, 82, 83 and 84 of the Anti-social Behaviour, Crime and Policing Act 2014 in relation to closure orders made under section 80(5)(a) of that Act where a person has engaged in, or is likely to engage in behaviour that constitutes a criminal offence on the premises;]

[F10 (ka) proceedings under paragraph 3 of Schedule 2 to the Female Genital Mutilation Act 2003 in relation to female genital mutilation protection orders made other than on conviction and related appeals;

(kb) proceedings under paragraph 6 of Schedule 2 to the Female Genital Mutilation Act 2003 in relation to female genital mutilation protection orders made under paragraph 3 of that Schedule;]

(l) proceedings under sections 20, 22, 26 and 28 of the Anti-social Behaviour Act 2003(12) in relation to parenting orders—

(i) in cases of exclusion from school; or

(ii) in respect of criminal conduct and anti-social behaviour;

(m) proceedings under sections 97, 100 and 101 of the Sexual Offences Act 2003(13) in relation to notification orders and interim notification orders;

[F11 (n) proceedings under sections 103A, 103E, 103F and 103H of the Sexual Offences Act 2003 in relation to sexual harm prevention orders;]

F12 (o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F13 (p) proceedings under sections 122A, 122D, 122E and 122G of the Sexual Offences Act 2003 in relation to sexual risk orders;]

F14 (q) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(r) proceedings under section 13 of the Tribunals, Courts and Enforcement Act 2007(14) on appeal against a decision of the Upper Tribunal in proceedings in respect of—

(i) a decision of the [F15 Financial Conduct Authority];

[F16 (ia) a decision of the Prudential Regulation Authority;]

(ii) a decision of the Bank of England; or

(iii) a decision of a person in relation to the assessment of any compensation or consideration under the Banking (Special Provisions) Act 2008(15) or the Banking Act 2009(16);

(s) proceedings before the Crown Court or the Court of Appeal in relation to serious crime prevention orders under sections 19, 20, 21 and 24 of the Serious Crime Act 2007(17);

(t) proceedings under sections 100, 101, 103, 104 and 106 of the Criminal Justice and Immigration Act 2008(18) in relation to violent offender orders and interim violent offender orders;

(u) proceedings under sections 26, 27 and 29 of the Crime and Security Act 2010(19) in relation to—

(i) domestic violence protection notices; or

(ii) domestic violence protection orders; F17 ...

[F18 (ua) proceedings under sections 14(1)(b) and (c), 15 and 20 to 22 of the Modern Slavery Act 2015 in relation to slavery and trafficking prevention orders;

(ub) proceedings under sections 23 and 27 to 29 of the Modern Slavery Act 2015 in relation to slavery and trafficking risk orders, and]

(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.

Textual Amendments

F6 Reg. 9(d)(e) omitted (23.3.2015) by virtue of The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(2) (with reg. 3)

F7 Reg. 9(f) substituted (23.3.2015) by The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(3) (with reg. 3)

F8 Reg. 9(ja) inserted (24.3.2015) by The Legal Aid, Community Legal Service and Criminal Defence Service (Amendment) Regulations 2015 (S.I. 2015/838), regs. 1(2), 7

F9 Reg. 9(k) substituted (23.3.2015) by The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(4) (with reg. 3)

F10 Reg. 9(ka)(kb) inserted (17.7.2015) by The Civil and Criminal Legal Aid (Amendment) Regulations 2015 (S.I. 2015/1416), regs. 1(2)(b), 3(a)

F11 Reg. 9(n) substituted (23.3.2015) by The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(5) (with reg. 3)

F12 Reg. 9(o) omitted (23.3.2015) by virtue of The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(6) (with reg. 3)

F13 Reg. 9(p) substituted (23.3.2015) by The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(7) (with reg. 3)

F14 Reg. 9(q) omitted (23.3.2015) by virtue of The Criminal Legal Aid (General) (Amendment) Regulations 2015 (S.I. 2015/326), regs. 1(1), 2(8) (with reg. 3)

F15 Words in reg. 9(r) substituted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 249(a)

F16 Reg. 9(r)(ia) inserted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 249(b)

F17 Word in reg. 9(u)(ii) omitted (31.7.2015) by virtue of The Civil and Criminal Legal Aid (Amendment) Regulations 2015 (S.I. 2015/1416), regs. 1(2)(a), 3(b)

F18 Reg. 9(ua)(ub) inserted (31.7.2015) by The Civil and Criminal Legal Aid (Amendment) Regulations 2015 (S.I. 2015/1416), regs. 1(2)(a), 3(c)

Commencement Information

I9 Reg. 9 in force at 1.4.2013, see reg. 1

Criminal proceedings: specified individual E+W

10.  An individual who is or may be brought before a court or tribunal in proceedings specified in regulation 9 is a specified individual for the purposes of section 16(6) of the Act (representation for criminal proceedings).

Commencement Information

I10 Reg. 10 in force at 1.4.2013, see reg. 1

PART 4 E+W Advice and assistance for criminal proceedings

General E+W

11.—(1) This Part makes provision about the making and withdrawal of determinations by the Director under section 15 of the Act (advice and assistance for criminal proceedings).

(2) Prescribed advice and assistance is to be made available to an individual described in section 15(2) of the Act if—

(a) the conditions prescribed in regulation 12 are met; and

(b) the Director has determined that the individual qualifies for advice and assistance in accordance with these Regulations (and has not withdrawn the determination).

(3) For the purposes of this regulation “prescribed advice and assistance” means advice and assistance that is available in accordance with the [F19 2017 Standard Crime Contract].

Textual Amendments

F19 Words in reg. 11(3) substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(b) (with reg. 5)

Commencement Information

I11 Reg. 11 in force at 1.4.2013, see reg. 1

Prescribed conditions E+W

12.—(1) The conditions set out in paragraph (2) are prescribed for the purposes of section 15(1) of the Act.

(2) The conditions are that an individual must—

(a) be the subject of an investigation which may lead to criminal proceedings;

(b) be the subject of criminal proceedings;

(c) require advice and assistance regarding an appeal or potential appeal against the outcome of any criminal proceedings or an application to vary a sentence;

[F20 (d) require advice and assistance regarding—

(i) the application of the provisions in Chapter 6 of Part 12 of the Criminal Justice Act 2003 or in Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, which determine when a prisoner is either entitled to be released by the Secretary of State or eligible for consideration by the Parole Board for a direction to be released; F21 ...

(ii) the application of the provisions in Chapter 2 of Part 5 of the Powers of Criminal Courts (Sentencing) Act 2000, which determine when an offender is entitled to be released by the Secretary of State;

[F22 (iii) a review of a prisoner’s classification pursuant to rule 7 (classification of prisoners) of the Prison Rules as a Category A Prisoner;

(iv) the application of rule 46 (close supervision centres) of the Prison Rules, which provides for directions by the Secretary of State in relation to a prisoner’s placement in a close supervision centre of a prison; or

(v) the application of rule 46A (separation centres) of the Prison Rules, which provides for directions by the Secretary of State in relation to a prisoner’s placement in a separation centre within a prison;]]

(e) require advice and assistance regarding an application or potential application to the Criminal Cases Review Commission(20);

[F23 (f) require advice and assistance regarding a disciplinary hearing in a prison or young offender institution where—

(i) the proceedings involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights; or

(ii) the governor has exercised the governor’s discretion to allow advice and assistance in relation to the hearing;]

(g) be the subject of proceedings before the Parole Board(21) F24 ...;

F25 (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) be a witness in criminal proceedings and require advice and assistance regarding self-incrimination;

(j) be a volunteer; or

(k) be detained under Schedule 7 to the Terrorism Act 2000(22).

[F26 (3) In this regulation—

[F27 (za) “the Prison Rules” means the Prison Rules 1999;

(zb) “Category A Prisoner” means a prisoner whose escape would be highly dangerous to the public, the police or national security, and for whom the aim is to make escape impossible;

(zc) “close supervision centre” means any cell or other part of a prison designated by the Secretary of State for holding prisoners who are subject to a direction given under rule 46(1) of the Prison Rules;]

(a) “governor” includes—

(i) a director approved by the Secretary of State for the purposes of section 85(1)(a) of the Criminal Justice Act 1991(“the 1991 Act”); and

(ii) a controller appointed by the Secretary of State under section 85(1)(b) of the 1991 Act,

where the Secretary of State has entered into a contract for the running of a prison under section 84 of the 1991 Act; F28 ...

[F29 (aa) “separation centre” means any part of a prison for the time being used for holding prisoners who are subject to a direction under rule 46A(1) of the Prison Rules; and]

(b) “volunteer” means an individual who, for the purposes of assisting with an investigation, without having been arrested—

(i) attends voluntarily at a police station, customs office or any other place where a constable is present; or

(ii) accompanies a constable to a police station, customs office or any other such place.]

Textual Amendments

F20 Reg. 12(2)(d) substituted (2.12.2013) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(2), 4(2) (with reg. 7)

F21 Word in reg. 12(2)(d)(i) omitted (21.2.2018) by virtue of The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(2) (with reg. 5)

F22 Reg. 12(2)(d)(iii)-(v) inserted (21.2.2018) by The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(3) (with reg. 5)

F23 Reg. 12(2)(f) substituted (2.12.2013) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(2), 4(3) (with reg. 7)

F24 Words in reg. 12(2)(g) omitted (21.2.2018) by virtue of The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(4) (with reg. 5)

F25 Reg. 12(2)(h) omitted (2.12.2013) by virtue of The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(2), 4(5) (with reg. 7)

F26 Reg. 12(3) substituted (2.12.2013) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(2), 4(6) (with reg. 7)

F27 Reg. 12(za)-(zc) inserted (21.2.2018) by The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(5) (with reg. 5)

F28 Word in reg. 12(3)(a) omitted (21.2.2018) by virtue of The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(6) (with reg. 5)

F29 Reg. 12(3)(aa) inserted (21.2.2018) by The Criminal Legal Aid (Amendment) Regulations 2017 (S.I. 2017/1319), regs. 1, 2(7) (with reg. 5)

Commencement Information

I12 Reg. 12 in force at 1.4.2013, see reg. 1

Interests of justice E+W

13.  When making a determination under section 15 of the Act, the Director must have regard, in particular, to the interests of justice.

Commencement Information

I13 Reg. 13 in force at 1.4.2013, see reg. 1

Applications E+W

14.  An application for advice and assistance for criminal proceedings must be made—

(a) in accordance with the requirements of the [F30 2017 Standard Crime Contract] for the Unit of Work which is the subject of the application; and

(b) in a form specified by the Lord Chancellor, in circumstances where the [F30 2017 Standard Crime Contract] requires an application form to be completed.

Textual Amendments

F30 Words in reg. 14 substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(c) (with reg. 5)

Commencement Information

I14 Reg. 14 in force at 1.4.2013, see reg. 1

Determinations E+W

15.—(1) The Director must determine whether an individual qualifies under section 15 of the Act for advice and assistance for criminal proceedings in accordance with—

(a) section 21 of the Act (financial resources) and regulations made under that section(23); and

(b) the qualifying criteria set out in the [F31 2017 Standard Crime Contract].

(2) A determination that an individual qualifies under section 15 of the Act for advice and assistance for criminal proceedings must specify any limitations and conditions to which the determination is subject.

(3) A determination that an individual qualifies under section 15 of the Act for advice and assistance for criminal proceedings may specify that the determination is to be treated as having effect from a date which is no later than the date on which the application was received.

Textual Amendments

F31 Words in reg. 15(1)(b) substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(d) (with reg. 5)

Commencement Information

I15 Reg. 15 in force at 1.4.2013, see reg. 1

Withdrawal E+W

16.  The Director may withdraw a determination under section 15 of the Act where—

(a) the services to which the determination relates have been provided;

(b) the proceedings which are the subject of the determination have concluded;

(c) the individual consents;

(d) the individual has died; or

(e) the individual no longer qualifies for the advice and assistance to be made available by the determination in accordance with—

(i) section 21 of the Act and regulations made under that section; or

(ii) the qualifying criteria set out in the [F32 2017 Standard Crime Contract].

Textual Amendments

F32 Words in reg. 16(e)(ii) substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(e) (with reg. 5)

Commencement Information

I16 Reg. 16 in force at 1.4.2013, see reg. 1

Appeal E+W

17.  An individual may appeal to an Independent Funding Adjudicator appointed by the Lord Chancellor under section 2 of the Act (arrangements) against a decision of the Director that—

(a) the interests of justice do not require advice or assistance to be made available to an individual under these Regulations; or

(b) the qualifying criteria set out in the [F33 2017 Standard Crime Contract] are not met.

Textual Amendments

F33 Words in reg. 17(b) substituted (1.4.2017) by The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 (S.I. 2017/311), regs. 1, 2(3)(f) (with reg. 5)

Commencement Information

I17 Reg. 17 in force at 1.4.2013, see reg. 1

PART 5 E+W Representation for criminal proceedings

General E+W

18.  This Part makes provision about the making and withdrawal of determinations by the Director under section 16 of the Act (representation for criminal proceedings)(24), except in circumstances in which a court is authorised to make the determination under regulations made under section 19 of the Act (determinations by court).

Commencement Information

I18 Reg. 18 in force at 1.4.2013, see reg. 1

Representation for criminal proceedings: proceedings which are to be regarded as incidental proceedings E+W

19.—(1) The proceedings set out in paragraph (2) are to be regarded as incidental to the criminal proceedings from which they arise(25).

(2) The proceedings are—

(a) proceedings in the Crown Court, following committal for sentence by a magistrates’ court;

(b) proceedings to quash an acquittal under section 54 of the Criminal Procedure and Investigations Act 1996(26); and

(c) proceedings for confiscation and forfeiture in connection with criminal proceedings under RSC Order 115 in Schedule 1 to the Civil Procedure Rules 1998(27).

Commencement Information

I19 Reg. 19 in force at 1.4.2013, see reg. 1

Representation for criminal proceedings: proceedings which are not to be regarded as incidental proceedings E+W

20.—(1) The proceedings set out in paragraph (2) are not to be regarded as incidental to the criminal proceedings from which they arise.

(2) The proceedings are—

(a) proceedings for applications for judicial review or habeas corpus in relation to criminal proceedings; and

(b) proceedings for dealing with an individual who is alleged to have failed to comply with an order of the magistrates’ court or the Crown Court.

Commencement Information

I20 Reg. 20 in force at 1.4.2013, see reg. 1

Qualifying for representation: interests of justice E+W

21.  For the purposes of a determination under section 16 of the Act, making representation available to an individual for the purposes of criminal proceedings is taken to be in the interests of justice when the proceedings are before—

(a) the Crown Court, to the extent that such proceedings do not relate to an appeal to the Crown Court;

(b) the High Court;

(c) the Court of Appeal; or

(d) the Supreme Court.

Commencement Information

I21 Reg. 21 in force at 1.4.2013, see reg. 1

Applications E+W

22.—(1) An application for a determination by the Director under section 16 of the Act must be in a form specified by the Lord Chancellor.

(2) Where an individual makes an application for a determination in relation to proceedings in which a determination has previously been withdrawn under this Part, the application must state—

(a) that a previous determination in relation to those proceedings has been withdrawn; and

(b) the reasons for the withdrawal.

Commencement Information

I22 Reg. 22 in force at 1.4.2013, see reg. 1

Determinations E+W

23.—(1) When the Director makes a determination under section 16 of the Act that an individual qualifies for representation for the purposes of criminal proceedings, the Director must—

(a) issue a representation order recording that determination; and

(b) send a copy of the representation order to the individual and any provider named in the representation order.

(2) A representation order issued by the Director—

(a) must record the date from which the determination is to be treated as having effect; and

(b) may specify that the determination is to be treated as having effect from a date which is no later than the date on which the application was received.

(3) Where the Director makes a determination under section 16 of the Act that an individual does not qualify for representation for the purposes of criminal proceedings, the Director must provide to that individual—

(a) written reasons for the making of such a determination; and

(b) details of any review or appeal available to that individual in respect of the determination.

(4) A determination which is made in relation to an individual in any criminal proceedings includes representation in any incidental proceedings.

Commencement Information

I23 Reg. 23 in force at 1.4.2013, see reg. 1

Determinations: proceedings in the magistrates’ court E+W

24.— [F34 (1) Subject to paragraph (2), when the Director makes a determination under section 16 of the Act in accordance with Part 3 of the Financial Resources Regulations that an individual is eligible for representation for proceedings in the magistrates’ court, the Director must also make a determination that the individual is eligible in accordance with Part 4 of the Financial Resources Regulations for representation in the Crown Court in relation to those proceedings.]

(2) A determination to which paragraph (1) applies does not include representation for any appeal to the Crown Court in the proceedings to which the determination relates.

Textual Amendments

F34 Reg. 24(1) substituted (27.1.2014) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(3), 5(2) (with reg. 8)

Commencement Information

I24 Reg. 24 in force at 1.4.2013, see reg. 1

Determinations: certain proceedings in the Crown Court E+W

25.— [F35 (1) In the circumstances described in paragraph (2), the Director must consider the individual’s application for a determination under section 16 for representation for the purposes of criminal proceedings in the Crown Court in accordance with Part 4 of the Financial Resources Regulations.]

(2) The circumstances are that—

(a) the individual has made an application for a determination in proceedings in the magistrates’ court and (should the proceedings continue there) in the Crown Court;

(b) the Director has determined that the individual does not qualify for representation in the magistrates’ court either because—

(i) the requirements of section 21 (financial resources) and regulations made under that section are not met; or

(ii) the interests of justice do not require representation to be made available to the individual; and

(c) the proceedings continue to the Crown Court other than on appeal.

Textual Amendments

F35 Reg. 25(1) substituted (27.1.2014) by The Criminal Legal Aid (General) (Amendment) Regulations 2013 (S.I. 2013/2790), regs. 1(3), 6(2) (with reg. 8)

Commencement Information

I25 Reg. 25 in force at 1.4.2013, see reg. 1

Withdrawal E+W

26.—(1) The Director must withdraw a determination under section 16 of the Act if the Director is satisfied that the interests of justice no longer require representation.

(2) The Director may withdraw a determination where—

(a) the individual declines to accept the determination in the terms which are offered;

(b) the individual requests that the determination is withdrawn; or

(c) the provider named in the representation order which recorded the original determination declines to continue to represent the individual.

(3) Where the Director withdraws a determination, the Director must provide written notification of the withdrawal to—

(a) the individual in whose favour the original determination was made;

(b) any provider named in the representation order which records the determination; and

(c) any advocate instructed in proceedings.

(4) In this regulation “advocate” means a person who is an authorised person for the purposes of section 18 of the Legal Services Act 2007(28) in relation to the exercise of a right of audience.

Commencement Information

I26 Reg. 26 in force at 1.4.2013, see reg. 1

Review E+W

27.—(1) An individual may apply for a review by the Director of—

(a) a determination under section 16 of the Act that the interests of justice do not require representation to be made available to an individual for the purposes of criminal proceedings; and

(b) the withdrawal of a determination in the circumstances specified in regulation 26(1).

(2) An application for a review must be made in a form specified by the Lord Chancellor and must include any written representations supporting the application.

(3) The individual must provide such further information and documents as the Director may request in relation to the review within fourteen days of the Director making such a request.

(4) A review may be conducted without a hearing unless the Director directs otherwise.

(5) The Director must consider the application and any written representations and may—

(a) confirm or amend the determination which is the subject of the review;

(b) confirm the withdrawal which is the subject of the review; or

(c) substitute a new determination.

(6) Where the Director amends or substitutes a determination—

(a) the determination following the review takes effect (unless the Director directs otherwise) as if the original determination or withdrawal had not been made;

(b) the Director must issue a representation order to reflect the determination following the review; and

(c) the date of any representation order issued in accordance with sub-paragraph (b) must be the date on which the original application for a determination was received.

(7) The Director must notify the individual and the provider identified in the individual’s application of—

(a) the determination or withdrawal following the review; and

(b) the written reasons for that decision.

Commencement Information

I27 Reg. 27 in force at 1.4.2013, see reg. 1

Appeal E+W

28.  Where an individual remains dissatisfied following a review under regulation 27, that individual may appeal to a court in accordance with regulations 29 and 30 against the decision that the interests of justice do not require, or no longer require, representation to be made available.

Commencement Information

I28 Reg. 28 in force at 1.4.2013, see reg. 1

Appeal: magistrates’ court E+W

29.—(1) In relation to a determination by the Director under section 16 of the Act that the interests of justice do not require, or no longer require, representation to be made available before the magistrates’ court, the appeal lies to the magistrates’ court.

(2) The court must either—

(a) affirm the determination; or

(b) decide that the interests of justice require representation to be made available, or to continue to be made available, to an individual for the purposes of criminal proceedings.

(3) Where the court makes a decision under paragraph (2)(b), the individual may apply to the Director for a determination.

(4) Where an individual applies to the Director under paragraph (3)—

(a) if the individual states in writing, verified by a statement of truth, that the individual’s financial resources have not changed since the date of the individual’s original application for a determination, so as to make the individual financially ineligible for representation under section 21 of the Act (financial resources) and regulations made under that section, the Director must make a determination that the individual qualifies for representation; or

(b) if the individual’s financial resources may have so changed since the date of the individual’s original application, the Director—

(i) must determine whether the individual qualifies for representation in accordance with section 21 of the Act and regulations made under that section; and

(ii) if the individual does so qualify, must make the determination accordingly.

(5) In this regulation—

“magistrates’ court” means the magistrates’ court in which the proceedings in respect of which an individual is seeking a determination under section 16 of the Act are taking place, or are to take place, and includes a single justice and a District Judge (magistrates’ court); and

“statement of truth” means a declaration provided in accordance with regulations made under section 21 of the Act (financial resources).

Commencement Information

I29 Reg. 29 in force at 1.4.2013, see reg. 1

Appeal: Crown Court E+W

30.—(1) In relation to a determination by the Director that the interests of justice do not require, or no longer require, representation to be made available in a case in the Crown Court, the appeal lies to an officer of the Crown Court (“the officer”).

(2) The officer may refer the appeal to a judge of the Crown Court.

(3) The officer or the judge may—

(a) affirm the determination; or

(b) decide that the interests of justice require representation to be made available, or to continue to be made available, to an individual for the purposes of criminal proceedings.

(4) Where the officer or a judge makes a decision under paragraph (3)(b), the Director must make a determination reflecting that decision and record the determination in a representation order.

Commencement Information

I30 Reg. 30 in force at 1.4.2013, see reg. 1

PART 6 E+W Legal Persons

Legal persons: application of regulation 5 E+W

31.—(1) Regulation 5(29) applies to legal persons with the modifications in paragraphs (2) and (3).

(2) For “an individual” substitute “a legal person”.

(3) For “the individual” substitute “the legal person”.

Commencement Information

I31 Reg. 31 in force at 1.4.2013, see reg. 1

Legal persons: application of regulation 6 E+W

32.—(1) Regulation 6(30) applies to legal persons with the modification in paragraph (2).

(2) For “an individual” substitute “a legal person”.

Commencement Information

I32 Reg. 32 in force at 1.4.2013, see reg. 1

Legal persons: prescribed advice and assistance E+W

33.—(1) The advice and assistance set out in paragraph (2) is prescribed for the purposes of paragraph 4(1) of Schedule 3 (legal aid for legal persons) to the Act.

(2) The prescribed advice and assistance is advice and assistance which is provided in relation to—

(a) an investigation which may lead to criminal proceedings;

(b) criminal proceedings;

(c) an appeal or a potential appeal against the outcome of criminal proceedings; or

(d) a sentence imposed on a legal person.

Commencement Information

I33 Reg. 33 in force at 1.4.2013, see reg. 1

Legal persons: prescribed conditions E+W

34.—(1) The conditions set out in paragraph (2) are prescribed for the purposes of paragraph 4(1)(a) of Schedule 3 to the Act.

(2) The prescribed conditions are that the legal person must be the subject of—

(a) an investigation which may lead to criminal proceedings; or

(b) criminal proceedings, including an appeal, potential appeal and an application to vary sentence.

Commencement Information

I34 Reg. 34 in force at 1.4.2013, see reg. 1

Legal persons: applications for advice and assistance for criminal proceedings E+W

35.—(1) An application by a legal person for advice and assistance(31) must be made in writing to the Director.

(2) The legal person must provide any additional information and documents requested by the Director in order to make a determination in relation to an application made in accordance with paragraph (1).

Commencement Information

I35 Reg. 35 in force at 1.4.2013, see reg. 1

Legal persons: application of Part 4 of the Regulations E+W

36.—(1) Regulations 13, 15(1)(a), (2) and (3), 16(a) to (c) and (e)(i) and 17(a) apply to legal persons with the modifications in paragraphs (2) to (4).

(2) For “an individual” substitute “a legal person”.

(3) For “the individual” substitute “the legal person”.

(4) For “section 15 of” substitute “paragraph 4 of Schedule 3 to”.

Commencement Information

I36 Reg. 36 in force at 1.4.2013, see reg. 1

Legal persons: specified legal persons in relation to criminal proceedings E+W

37.  A legal person is a specified legal person in relation to criminal proceedings if that person meets the condition prescribed in regulation 34(2)(b).

Commencement Information

I37 Reg. 37 in force at 1.4.2013, see reg. 1

Legal persons: applications for representation E+W

38.—(1) An application by a legal person for representation(32) for the purposes of criminal proceedings must be made in writing to the Director.

(2) The legal person must provide any additional information and documents requested by the Director in order to make a determination in relation to an application made in accordance with paragraph (1).

Commencement Information

I38 Reg. 38 in force at 1.4.2013, see reg. 1

Legal persons: application of Part 5 of the Regulations E+W

39.—(1) With the exception of regulations 21, 22(1) and 25(2)(b)(ii), Part 5 of these Regulations applies(33) to legal persons with the modifications in paragraphs (2) to (5).

(2) For “an individual” substitute “a legal person”.

(3) For “the individual” substitute “the legal person”.

(4) For “that individual” substitute “that legal person”.

(5) For “section 16 of” substitute “paragraph 5 of Schedule 3 to”.

Commencement Information

I39 Reg. 39 in force at 1.4.2013, see reg. 1

Signed by authority of the Lord Chancellor

McNally

Minister of State

Ministry of Justice

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Criminal Legal Aid (General) Regulations 2013 (“the Regulations”) make provision for determinations in relation to whether an individual qualifies for criminal legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c.10) (“the Act”).

Regulation 4 provides that the functions of the Lord Chancellor or the Director under the Regulations may be exercised by, or by an employee of, a person authorised for that purpose by the Lord Chancellor or Director.

Part 2 makes provision for the making of determinations in relation to individuals who are arrested and held in custody.

Part 3 makes provision about the proceedings which constitute criminal proceedings in addition to those already listed in section 14 of the Act (criminal proceedings).

Part 4 makes provision about the making and withdrawal of determinations about advice and assistance for criminal proceedings.

Part 5 makes provision in relation to determinations about representation for criminal proceedings and for the withdrawal of such determinations. Part 5 also makes provision in relation to proceedings which are and which are not to be regarded as incidental to criminal proceedings (regulations 19 and 20). Regulation 21 makes provision about the circumstances in which the interests of justice test set out in section 17 of the Act (qualifying for representation) is taken to be met. An individual may apply for a review of a determination by the Director that the interests of justice do not require representation to be made available (regulation 27). If the individual is dissatisfied with the review, then that individual may appeal (as set out in regulations 29 and 30).

Part 6 makes provision for the application of these Regulations to legal persons.

(1)

Section 42(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (“the Act”) provides that in Part 1 of that Act “regulations” means regulations made by the Lord Chancellor.

(2)

2012 c. 10.

(3)

Paragraph 4(3) of Schedule 3 to the Act (legal aid for legal persons: advice and assistance for criminal proceedings) applies section 15(3) of the Act to regulations made under paragraph 4 of Schedule 3.

(4)

A copy of the 2010 Standard Crime Contract is available at www.justice.gov.uk/legal-aid. Copies can be inspected at the Legal Aid Agency (Head Office), 102 Petty France, London, SW1H 9AJ.

(5)

Section 42(1) of the Act provides that in Part 1 of the Act (legal aid) “the Director” means the Director of Legal Aid Casework.

(6)

Section 6 of the Act (authorisations) makes provision for authorisations given for the purposes of section 5 of the Act (delegation) or regulations under that section.

(7)

1989 c. 37. Sections 14B, 14D, 14G and 14H were inserted by section 1 of, and paragraphs 1 and 2 of Schedule 1 to, the Football (Disorder) Act 2000 (c. 25). Section 14B was amended by section 52(2) of, and paragraphs 1 and 4 of Schedule 3 to, the Violent Crime Reduction Act 2006 (c. 38). Sections 21B and 21D were inserted by section 1 of, and paragraphs 1 and 4 of Schedule 1 to, the Football (Disorder) Act 2000. Section 21B was amended by section 12 of, and paragraphs 3 and 4 of the Schedule to, the Identity Documents Act 2010 (c. 40) and section 52(2) of, and paragraphs 1 and 4 of Part 1 of Schedule 3 to, the Violent Crime Reduction Act 2006 (c. 38).

(8)

1997 c. 40. Section 5A was inserted by section 12(5) of the Domestic Violence, Crime and Victims Act 2004 (c. 28).

(9)

Section 8(1)(c) will be amended by section 41(1) and (2) of the Crime and Security Act 2010 (c. 17) at a date to be appointed.

(10)

Section 10 was amended by section 15 of, and paragraphs 276 and 277 of Part 1 of Schedule 4 to, the Constitutional Reform Act 2005 (c. 4) and article 9 of S.I. 2009/871. Section 10 will also be amended by section 40(1) and (5) of the Crime and Security Act 2010 (c. 17) at a date to be appointed.

(11)

2000 c. 6. Part 1A was inserted by section 324 of, and paragraph 6 of Schedule 34 to, the Criminal Justice Act 2003 (c. 44) and amended by article 2 of and paragraph 81(b) of the Schedule to S.I. 2005/886.

(12)

Section 20 was amended by section 98 of the Education and Inspections Act 2006 (c. 40) and article 5(1) of and paragraph 52 of Part 2 of Schedule 2 to S.I. 2010/1158. Section 26 was amended by section 52 of and paragraph 54 of Schedule 14 to the Police and Justice Act 2006 (c. 48) in relation to England only. Section 28 was amended by section 52 of and paragraph 56 of Schedule 14 to the Police and Justice Act 2006 (c. 48) in relation to England only.

(13)

2003 c. 42.

(14)

2007 c. 15.

(15)

2008 c. 2.

(16)

2009 c. 1.

(17)

2007 c. 27.

(18)

2008 c. 4.

(19)

2010 c. 17.

(20)

The Criminal Cases Review Commission was established by section 8 of the Criminal Appeal Act 1995 (c. 35).

(21)

The Parole Board is constituted under section 239 of the Criminal Justice Act 2003 (c. 44).

(22)

2000 c. 11.

(23)

Paragraph 6 of Schedule 3 to the Act (legal aid for legal persons: financial resources) applies section 21 for the purposes of regulations made under paragraph 4 of that Schedule as if the references to an individual included a legal person.

(24)

Paragraph 5(2) of Schedule 3 to the Act (legal aid for legal persons: representation for criminal proceedings) makes provision for the Director to determine whether a legal person qualifies for representation for criminal proceedings. Paragraph 5(7) of Schedule 3 to the Act provides that subsections (2) to (7) of section 18 of the Act (determinations by Director) apply to a determination under paragraph 5(2) of Schedule 3 as they apply in relation to a determination under section 16.

(25)

Paragraph 5(3) of Schedule 3 to the Act (legal aid for legal persons: representation for criminal proceedings) provides that where a legal person qualifies for representation for the purposes of criminal proceedings, representation is also to be available to the legal person for the purposes of any preliminary or incidental proceedings. Paragraph 5(4) of Schedule 3 to the Act applies regulations made under section 16(4) of the Act to legal persons. Section 16(4) provides that regulations may make provision which specifies whether proceedings are or are not to be regarded as preliminary or incidental to the principal proceedings.

(26)

1996 c. 25.

(27)

S.I. 1998/3132 (L.17).

(28)

2007 c. 29.

(29)

Paragraph 9(3) of Schedule 3 to the Act (legal aid for legal persons: providers of services etc) provides that in section 28 of the Act (position of providers of services) references to an individual include a legal person.

(30)

Paragraph 9(3) of Schedule 3 to the Act (legal aid for legal persons: providers of services etc) provides that in section 30 of the Act (position of other parties, courts and tribunals) references to an individual include a legal person.

(31)

Paragraph 4(3) of Schedule 3 to the Act (legal aid for legal persons: advice and assistance for criminal proceedings) provides that subsections (3) to (9) of section 15 apply in relation to regulations made under paragraph 4 of Schedule 3 as they apply in relation to regulations made under that section.

(32)

Paragraph 5(7) of Schedule 3 to the Act (legal aid for legal persons: representation for criminal proceedings) provides that subsections (2) to (7) of section 18 apply in relation to a determination under paragraph 5(2) of Schedule 3 as they apply in relation to a determination under section 16.

(33)

Paragraph 5(4) of Schedule 3 to the Act (legal aid for legal persons: representation for criminal proceedings) provides that regulations under section 16(4) and (5) apply for the purposes of paragraph 5(3) of Schedule 3 as they apply for the purposes of section 16(3). Paragraphs 5(5) to (7) of Schedule 3 to the Act apply sections 17 and 18 to determinations made under paragraph 5 of Schedule 3.