Access to Justice Act 1999 (c. 22)

(The document as of February, 2008)

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Criminal Defence Service

12 Criminal Defence Service

(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--

(a) proceedings before any court for dealing with an individual accused of an offence,

(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 [1989 c. 33.] Extradition Act 1989,

(d) proceedings for binding an individual over to keep the peace or to be of good behaviour under section 115 of the [1980 c. 43.] Magistrates' Courts Act 1980 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 [1968 c. 19.] Criminal Appeal Act 1968,

(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--

(a) for accreditation,

(b) for monitoring the services provided by accredited persons and bodies, and

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.

13 Advice and assistance

(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) 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--

(a) entering into contracts with persons or bodies for the provision of advice or assistance by them,

(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--

(a) in different areas in England and Wales, and

(b) in relation to different descriptions of cases.

14 Representation

(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--

(a) entering into contracts with persons or bodies for the provision of representation by them,

(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--

(a) shall by order make provision about the payments which may be made by the Commission in respect of any representation provided by non-contracted private practitioners, and

(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--

(a) a person or body in receipt of grants or loans made by the Commission as part of the Criminal Defence Service, nor

(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--

(a) in different areas in England and Wales, and

(b) in relation to different descriptions of cases.

15 Selection of representative

(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--

(a) the right conferred by subsection (1) is not to apply in cases of prescribed descriptions,

(b) an individual who has been provided with advice or assistance funded by the Commission under section 13 by a person whom he chose to provide it for him is to be taken to have selected that person as his representative pursuant to that right,

(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.

16 Code of conduct

(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--

(a) duties to avoid discrimination,

(b) duties to protect the interests of the individuals for whom services are provided,

(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 code 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--

(a) the code as first approved by the Lord Chancellor, and

(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.

17 Terms of provision of funded services

(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--

(a) the descriptions of individuals against whom an order under subsection (2) may be made,

(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,

(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).

18 Funding

(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--

(a) determine the manner in which and times at which the sums referred to in subsection (1) shall be paid to the Commission, and

(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.

Supplementary

19 Foreign law

(1) The Commission may not fund as part of the Community Legal Service or Criminal Defence Service services relating to any law other than that of England and Wales, unless any such law is relevant for determining any issue relating to the law of England and Wales.

(2) But the Lord Chancellor may, if it appears to him necessary to do so for the purpose of fulfilling any obligation imposed on the United Kingdom by any international agreement, by order specify that there may be funded as part of the Community Legal Service or Criminal Defence Service (or both) services relating to the application of such other law as may be specified in the order.

20 Restriction of disclosure of information

(1) Subject to the following provisions of this section, information which is furnished--

(a) to the Commission or any court, tribunal or other person or body on whom functions are imposed or conferred by or under this Part, and

(b) in connection with the case of an individual seeking or receiving services funded by the Commission as part of the Community Legal Service or Criminal Defence Service,

shall not be disclosed except as permitted by subsection (2).

(2) Such information may be disclosed--

(a) for the purpose of enabling or assisting the Commission to discharge any functions imposed or conferred on it by or under this Part,

(b) for the purpose of enabling or assisting the Lord Chancellor to discharge any functions imposed or conferred on him by or under this Part,

(c) for the purpose of enabling or assisting any court, tribunal or other person or body to discharge any functions imposed or conferred on it by or under this Part,

(d) except where regulations otherwise provide, for the purpose of the investigation or prosecution of any offence (or suspected offence) under the law of England and Wales or any other jurisdiction,

(e) in connection with any proceedings relating to the Community Legal Service or Criminal Defence Service, or

(f) for the purpose of facilitating the proper performance by any tribunal of disciplinary functions.

(3) Subsection (1) does not limit the disclosure of--

(a) information in the form of a summary or collection of information so framed as not to enable information relating to any individual to be ascertained from it, or

(b) information about the amount of any grant, loan or other payment made to any person or body by the Commission.

(4) Subsection (1) does not prevent the disclosure of information for any purpose with the consent of the individual in connection with whose case it was furnished and, where he did not furnish it himself, with that of the person or body who did.

(5) A person who discloses any information in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6) Proceedings for an offence under this section shall not be brought without the consent of the Director of Public Prosecutions.

(7) Nothing in this section applies to information furnished to a person providing services funded as part of the Community Legal Service or the Criminal Defence Service by or on behalf of an individual seeking or receiving such services.

21 Misrepresentation etc

(1) Any person who--

(a) intentionally fails to comply with any requirement imposed by virtue of this Part as to the information to be furnished by him, or

(b) in furnishing any information required by virtue of this Part makes any statement or representation which he knows or believes to be false,

shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to--

(a) a fine not exceeding level 4 on the standard scale, or

(b) imprisonment for a term not exceeding three months,

or to both.

(3) Proceedings in respect of an offence under subsection (1) may (despite anything in the [1980 c. 43.] Magistrates' Courts Act 1980) be brought at any time within the period of six months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify a prosecution comes to his knowledge.

(4) But subsection (3) does not authorise the commencement of proceedings for an offence at a time more than two years after the date on which the offence was committed.

(5) A county court shall have jurisdiction to hear and determine any action brought by the Commission to recover loss sustained by reason of--

(a) the failure of any person to comply with any requirement imposed by virtue of this Part as to the information to be furnished by him, or

(b) a false statement or false representation made by any person in furnishing any information required by virtue of this Part.

22 Position of service providers and other parties etc

(1) Except as expressly provided by regulations, the fact that services provided for an individual are or could be funded by the Commission as part of the Community Legal Service or Criminal Defence Service shall not affect--

(a) the relationship between that individual and the person by whom they are provided or any privilege arising out of that relationship, or

(b) any right which that individual may have to be indemnified in respect of expenses incurred by him by any other person.

(2) A person who provides services funded by the Commission as part of the Community Legal Service or Criminal Defence Service shall not take any payment in respect of the services apart from--

(a) that made by way of that funding, and

(b) any authorised by the Commission to be taken.

(3) The withdrawal of a right to representation previously granted to an individual shall not affect the right of any person who has provided to him services funded by the Commission as part of the Criminal Defence Service to remuneration for work done before the date of the withdrawal.

(4) Except as expressly provided by regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect--

(a) the rights or liabilities of other parties to the proceedings, or

(b) the principles on which the discretion of any court or tribunal is normally exercised.

(5) Regulations may make provision about the procedure of any court or tribunal in relation to services funded by the Commission as part of the Community Legal Service or Criminal Defence Service.

(6) Regulations made under subsection (5) may in particular authorise the exercise of the functions of any court or tribunal by any member or officer of that or any other court or tribunal.

23 Guidance

(1) The Lord Chancellor may give guidance to the Commission as to the manner in which he considers it should discharge its functions.

(2) The Commission shall take into account any such guidance when considering the manner in which it is to discharge its functions.

(3) Guidance may not be given under this section in relation to individual cases.

(4) The Lord Chancellor shall either--

(a) publish, or

(b) require the Commission to publish,

any guidance given under this section.

24 Consequential amendments

Schedule 4 (which makes amendments consequential on this Part) has effect.

25 Orders, regulations and directions

(1) Any power of the Lord Chancellor under this Part to make an order or regulations is exercisable by statutory instrument.

(2) Before making any remuneration order relating to the payment of remuneration to barristers or solicitors the Lord Chancellor shall consult the General Council of the Bar and the Law Society.

(3) When making any remuneration order the Lord Chancellor shall have regard to--

(a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

(b) the cost to public funds, and

(4) In subsections (2) and (3) "remuneration order" means an order under section 6(4), 13(3) or 14(3) which relates to the payment by the Commission of remuneration--

(a) for the provision of services by persons or bodies in individual cases, or

(b) by reference to the provision of services by persons or bodies in specified numbers of cases.

(5) No directions may be given by the Lord Chancellor to the Commission under this Part in relation to individual cases.

(6) Any directions given by the Lord Chancellor to the Commission under this Part may be varied or revoked.

(7) The Lord Chancellor shall either--

(a) publish, or

(b) require the Commission to publish,

any directions given by him under this Part.

(8) Orders, regulations and directions of the Lord Chancellor under this Part may make different provision for different purposes (including different areas).

(9) No order shall be made under section 2 or 8 or paragraph 5(3) of Schedule 3, and no regulations shall be made under section 6(7), 11(1) or (4)(b) or (d) or 15(2)(a) or (5) or paragraph 4 of Schedule 3, unless a draft of the order or regulations has been laid before, and approved by a resolution of, each House of Parliament.

(10) A statutory instrument containing any other order or regulations under this Part shall be subject to annulment in pursuance of a resolution of either House of Parliament.

26 Interpretation

In this Part--

"the Commission" means the Legal Services Commission,
"the Community Legal Service Fund" has the meaning given by section 5(1),
"criminal proceedings" has the meaning given in section 12(2),
"prescribed" means prescribed by regulations and "prescribe" shall be construed accordingly,
"regulations" means regulations made by the Lord Chancellor, and
"representation" means 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.

Part II Other funding of legal services

Conditional fee and litigation funding agreements

27 Conditional fee agreements

(1) For section 58 of the [1990 c. 41.] Courts and Legal Services Act 1990 substitute--

" 58 Conditional fee agreements

(1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.

(2) For the purposes of this section and section 58A--

(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and

(b) a conditional fee agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.

(3) The following conditions are applicable to every conditional fee agreement--

(a) it must be in writing;

(b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and

(4) The following further conditions are applicable to a conditional fee agreement which provides for a success fee--

(a) it must relate to proceedings of a description specified by order made by the Lord Chancellor;

(b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and

(c) that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor.

(5) If a conditional fee agreement is an agreement to which section 57 of the [1974 c. 47.] Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.

58A Conditional fee agreements: supplementary

(1) The proceedings which cannot be the subject of an enforceable conditional fee agreement are--

(a) criminal proceedings, apart from proceedings under section 82 of the [1990 c. 43.] Environmental Protection Act 1990; and

(b) family proceedings.

(2) In subsection (1) "family proceedings" means proceedings under any one or more of the following--

(a) the [1973 c. 18.] Matrimonial Causes Act 1973;

(b) the [1976 c. 36.] Adoption Act 1976;

(d) Part III of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984;

(e) Parts I, II and IV of the [1989 c. 41.] Children Act 1989;

(f) Part IV of the [1996 c. 27.] Family Law Act 1996; and

(g) the inherent jurisdiction of the High Court in relation to children.

(3) The requirements which the Lord Chancellor may prescribe under section 58(3)(c)--

(a) include requirements for the person providing advocacy or litigation services to have provided prescribed information before the agreement is made; and

(b) may be different for different descriptions of conditional fee agreements (and, in particular, may be different for those which provide for a success fee and those which do not).

(4) In section 58 and this section (and in the definitions of "advocacy services" and "litigation services" as they apply for their purposes) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.

(5) Before making an order under section 58(4), the Lord Chancellor shall consult--

(a) the designated judges;

(b) the General Council of the Bar;

(d) such other bodies as he considers appropriate.

(6) A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee.

(7) Rules of court may make provision with respect to the assessment of any costs which include fees payable under a conditional fee agreement (including one which provides for a success fee). "

(2) In section 120(4) of the [1990 c. 41.] Courts and Legal Services Act 1990 (orders and regulations subject to affirmative procedure), for "58," substitute "58(4),".

28 Litigation funding agreements

In the Courts and Legal Services Act 1990, after section 58A (inserted by section 27 above) insert--

" 58B Litigation funding agreements

(1) A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement.

(2) For the purposes of this section a litigation funding agreement is an agreement under which--

(a) a person ("the funder") agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person ("the litigant"); and

(b) the litigant agrees to pay a sum to the funder in specified circumstances.

(3) The following conditions are applicable to a litigation funding agreement--

(a) the funder must be a person, or person of a description, prescribed by the Lord Chancellor;

(b) the agreement must be in writing;

(c) the agreement must not relate to proceedings which by virtue of section 58A(1) and (2) cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Lord Chancellor;

(d) the agreement must comply with such requirements (if any) as may be so prescribed;

(e) the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder's anticipated expenditure in funding the provision of the services; and

(f) that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Lord Chancellor in relation to proceedings of the description to which the agreement relates.

(4) Regulations under subsection (3)(a) may require a person to be approved by the Lord Chancellor or by a prescribed person.

(5) The requirements which the Lord Chancellor may prescribe under subsection (3)(d)--

(a) include requirements for the funder to have provided prescribed information to the litigant before the agreement is made; and

(b) may be different for different descriptions of litigation funding agreements.

(6) In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for its purposes) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.

(7) Before making regulations under this section, the Lord Chancellor shall consult--

(a) the designated judges;

(b) the General Council of the Bar;

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