Criminal Defence Service (Advice and Assistance) Act 2001
Criminal Defence Service (Advice andAssistance) Act 2001
2001 CHAPTER 4
An Act to clarify the extent of the duty of the Legal Services Commission under section 13(1) of the Access to Justice Act 1999.
[10th April 2001]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Extent of duty to fund advice and assistance
(1) Subsection (1) of section 13 of the Access to Justice Act 1999 (c. 22) (duty of Legal Services Commission to fund advice and assistance as part of Criminal Defence Service) shall be treated as having been enacted with the substitution of the following for paragraph (b) and the words after it—
‘(b) in prescribed circumstances, for individuals who—
(i) are not within paragraph (a) but are involved in investigations which may lead to criminal proceedings,
(ii) are before a court or other body in such proceedings, or
(iii) have been the subject of such proceedings;
and the assistance which the Commission may consider appropriate includes assistance in the form of advocacy.’
(2) Regulations under subsection (1) of section 13 (as amended above) may include provision treating them as having come into force at the same time as that subsection.
2 Short title
This Act may be cited as theCriminal Defence Service (Advice and Assistance) Act 2001.
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Criminal Defence Service (Advice and Assistance) Act 2001, which received Royal Assent on the 10 April 2001. They have been prepared by the Lord Chancellor's Department in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment none is given.
SUMMARY
3. The Act clarifies the extent of the Legal Service Commission's duty to fund advice and assistance as part of the Criminal Defence Service under section 13 of the Access to Justice Act 1999.
4. Under the criminal legal aid system it was possible for advice and assistance to include, in certain circumstances, limited representation at a court or other hearing. (This was known as Advice by way of Representation - ABWOR). It was always the intention that such limited representation would continue to be available in the same circumstances when the Criminal Defence Service sections of the Access to Justice Act 1999 came into force on 2 April 2001, and replaced the legal aid scheme.
5. There was some doubt that the interaction of sections 13 and 14 of the Access to Justice Act 1999 as originally enacted allowed for this limited form of representation. There was also a doubt about whether section 13 allowed the funding of advice and assistance for people who are, may be or have been involved in quasi-criminal proceedings.
6. The Act amends section 13, and has retrospective effect. This was necessary as section 13 of the Access to Justice Act 1999 came into force on 2nd April 2001, before the Act could receive Royal Assent. The effect is that from the date of Royal Assent of the Act, the Access to Justice Act 1999 has effect as if enacted as amended by the Act. Secondary legislation made under the powers in s13 (1) may have retrospective effect to 2nd April 2001.
BACKGROUND
7. The Legal Services Commission was established by the Access to Justice Act 1999. That Act replaced the legal aid system with two new schemes (the Community Legal Service and the Criminal Defence Service) to secure the provision of publicly funded legal services for people who need them. The Legal Services Commission, (which has replaced the Legal Aid Board), runs the two schemes.
8. In criminal cases, the Criminal Defence Service has replaced the legal aid scheme. Section 12 of the Access to Justice Act 1999 requires the Commission to establish, maintain and develop the Criminal Defence Service.
9. The purpose of the Criminal Defence Service as set out in section 12(1) is to secure that individuals involved in criminal investigations or criminal proceedings have access to such advice...
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