Section 54: Trial or sentencing in absence of accused in magistrates' courts

392.     Section 54 amends section 11 of the Magistrates' Courts Act 1980, which makes provision for the circumstances in which a magistrates' court may proceed in the absence of the defendant.

393.     Subsection (2) amends subsection (1) of section 11 of the Magistrates' Courts Act 1980. The present subsection (1) provides that, where at the time and place appointed for trial or adjourned trial the prosecutor appears but the accused does not, the court has a discretion to proceed in the accused's absence. New subsection (1)(b) provides that in those circumstances, where the accused is 18 or over, the court must proceed with a trial in the absence of the accused unless it would be contrary to the interests of justice. Where the accused is under 18, the court's discretion to proceed in absence is unchanged (new subsection (1)(a)).

394.     Subsection (3) inserts a new subsection (2A) into section 11 of the Magistrates' Courts Act 1980. This provides that the court may not proceed if it considers that there is an acceptable reason for the accused's absence.

395.     Subsection (4) amends subsections (3) and (4) of section 11 the Magistrates' Courts Act 1980 to reflect the fact that they now only apply to proceedings specified in subsection (5) of that section.

396.     Subsection (5) inserts into section 11 of the Magistrates' Courts Act 1980 a new subsection (3A) which provides that, where a court does impose a custodial sentence in the offender's absence, the person must be brought before the court before being taken to prison to start serving the sentence.

397.     Subsection (6) inserts three new subsections into section 11 of the Magistrates' Courts Act 1980: (5), (6) and (7).

• New subsection (5) provides that the two limits on magistrates' courts' powers that are specified in subsections (3) and (4) apply where proceedings have been issued either by written charge and requisition or by way of an information followed by issue of a summons (i.e. in cases other than where the defendant was bailed to appear before the court on a certain date). In those cases, the court cannot pass a custodial sentence in the defendant's absence, and cannot impose any disqualification unless they have already adjourned. Where a defendant was bailed to return to the court, those restrictions do not apply.

• New subsection (6) makes clear that the court is not required to enquire into the reason for an accused's absence before deciding whether to proceed in his absence, although it is intended that the court should take account of facts known to it (eg about the effect of severe weather on public transport) in deciding whether an acceptable reason for the accused's absence exists.

• New subsection (7) requires the court to state in open court its reasons for not proceeding in absence where the accused is 18 or over.

Section 55: Extension of powers of non-legal staff

398.     This section amends section 7A of the Prosecution of Offences Act 1985, which sets out the powers and rights of audience of a Crown Prosecutor which a member of staff of the CPS who is not a Crown Prosecutor may have if he or she is designated under that section by the Director of Public Prosecutions.

399.     The effect of the amendments made by subsections (2) and (4) is that members of staff designated under section 7A will, in addition to their existing powers, be able to: (a) conduct trials of non-imprisonable summary offences in magistrates' courts, (b) conduct proceedings in magistrates' courts (other than trials) in relation to certain offences previously excluded from their remit (for example, an offence triable only on indictment or one for which the accused has elected to be tried by jury, or the court has found that it should be so tried), (c) conduct applications or other proceedings relating to "preventative civil orders", and (d) conduct certain proceedings assigned to the Director of Public Prosecutions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 (these include proceedings on an application under section 2 of the Dogs Act 1871).

400.     Subsection (3) amends subsection (5) of section 7A to make consequential changes to the definition of "bail in criminal proceedings" and to define preventative civil orders. These include restraining orders, parenting orders and other civil orders which follow criminal proceedings (such as ASBOs, drinking banning orders and football banning orders). The new subsection (5A) reproduces the existing definition of "trial" for the purposes of the section.

401.     Subsection (5) inserts new subsections (8), (9) and (10) into section 7A. Subsections (8) and (9) provide that from 1 May 2011 Associate Prosecutors (formerly known as Designated Caseworkers) will cease to be exempt from the regulatory framework for persons who engage in legal activities provided for in the Legal Services Act 2007. Subsection (10) is included in case consequential amendments are required to the Legal Services Act 2007 to ensure that Associate Prosecutors can properly be catered for within the regulatory framework provided for by that Act. An order-making power (subject to the affirmative procedure) would enable appropriate modifications to be made to the 2007 Act, and if necessary other enactments (including section 7A), to this end.

402.     Subsection (5) also inserts new subsections (11) and (12) into section 7A. Associate Prosecutors' trial remit is limited through subsection (2) to non-imprisonable summary offences. The inclusion of subsections (11) and (12) provides a power that would allow the restriction on conducting proceedings in respect of imprisonable summary offences to be lifted by order (subject to affirmative procedure).

403.     Subsection (6) amends section 15 of the Prosecution of Offences Act 1985 so as to enable designated members of staff to undertake binding over proceedings in the magistrates' court.

Criminal Legal Aid

404.     Sections 12 to 18 of, and Schedule 3 to, the Access to Justice Act 1999 (the 1999 Act), as amended by the Criminal Defence Service Act 2006, deal with the Criminal Defence Service. Under section 12 of the Access to Justice Act, the Legal Services Commission (the LSC) is required to set up the Criminal Defence Service to secure that people involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require. Broadly speaking, advice and assistance is available for the investigation stage and representation for proceedings.

405.     Section 14 and Schedule 3 deal with representation in criminal proceedings. "Representation" is defined in section 26. It covers the preparation of a case and advocacy at any hearing. Paragraph 1(1) of Schedule 3 says that a right to representation for the purposes of any kind of criminal proceedings before a court may be granted to an individual such as is mentioned in relation to that kind of proceedings in section 12(2). The grant of a right to representation is subject to a test of the interests of justice (paragraph 5(1) of Schedule 3). Paragraph 5(2) sets out factors to be considered in deciding what the interests of justice consist of.

406.     Schedule 3 was amended by the Criminal Defence Service Act 2006 to add regulation-making powers to provide for the transfer of the responsibility for granting rights to representation from the courts to the LSC and the re-introduction of a test of financial eligibility (paragraphs 2A and 3B of Schedule 3). These powers were exercised, in relation to criminal proceedings in magistrates' courts, in the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (S.I. 2006/2493) and the Criminal Defence Service (Financial Eligibility) Regulations 2006 (S.I. 2006/2492). Applications for representation orders are handled by Her Majesty's Courts Service on behalf of the LSC.

Section 56: Provisional grant of right of representation

407.     This section amends Part 1 of and Schedule 3 to the 1999 Act to allow for the provisional grant of a right to representation in prescribed circumstances.

408.     Subsection (6) inserts a new paragraph 1A into Schedule 3. This provides for regulations (subject to the affirmative resolution procedure) to set out circumstances in which a right to representation may be provisionally granted to individuals involved in an investigation which may result in criminal proceedings, for the purpose of those proceedings. Regulations may make provision about the stage of an investigation at which the right may be provisionally granted, and the circumstances in which any provisional grant ceases to be provisional and becomes a full grant, or where it is to be withdrawn.

409.     Subsection (2) amends section 14(1) and subsection (3) amends section 15(1) of the 1999 Act so as to refer to provisional grants.

410.     Subsection (4) makes regulations under new paragraph 1A subject to the affirmative resolution procedure.

411.     Subsection (5) adds to the definition of "proceedings" for the purposes of the definition of "representation" in section 26 of the 1999 Act.

412.     Subsection (7) amends paragraph 2A of Schedule 3 to provide that any provisional grant of a right to representation under regulations made under new paragraph 1A is to be made by the Legal Services Commission.

413.     Subsections (8) and (9) make consequential amendments to paragraphs 3A(1) and 3B of Schedule 3 so as to refer to provisional grants.

414.     Subsection (10) amends Schedule 3 and provides that the right of appeal set out in paragraph 4 does not apply in relation to any right granted under new paragraph 1A.

415.     Subsection (11) makes consequential amendments to paragraph 5 of Schedule 3 so as to refer to provisional grants and inserts a new sub-paragraph (2A) which defines "proceedings" for the purposes of any provisional grant.

Section 57: Disclosure of information to enable assessment of financial eligibility

416.     This section amends the 1999 Act to allow the relevant authority to request and receive information from the Secretary of State (in practice the Secretary of State for Work and Pensions) and HMRC for purposes relating to the assessment of a person's financial eligibility for legal aid, and places certain restrictions on the disclosure of that information.

417.     Subsection (2) amends section 25(9) of the 1999 Act, making regulations under new paragraphs 6 of Schedule 3 subject to the affirmative resolution procedure.

418.     Subsection (3) inserts new paragraphs 6 to 8 of Schedule 3. New paragraph 6 provides that the relevant authority may make an information request to the DWP or HMRC for the purpose of making a decision about a person's financial eligibility for legal aid in accordance with paragraph 3B(1) and (2) or regulations under paragraph 3B(3) of Schedule 3. It further sets out the categories of information which may be requested (with a power to add further such categories by regulations subject to the affirmative resolution procedure). New paragraph 7 provides that a person to whom information is disclosed under paragraph 6 may disclose that information where necessary or expedient for those purposes. Except in these circumstances, or in accordance with any enactment or order of a court, or if information has already been lawfully disclosed to the public, any disclosure is an offence. A person guilty of this offence is liable on conviction on indictment to imprisonment for up to two years, a fine or both, or on summary conviction, to imprisonment for no more than twelve months, a fine not exceeding the statutory maximum (£5,000) or both. New paragraph 8 defines "benefit status", "the Commissioners" and "information" for the purposes of new paragraphs 6 and 7.

Section 58: Pilot schemes

419.     This section inserts a new section 18A into the 1999 Act to provide for a power to pilot schemes under secondary legislation concerning the Criminal Defence Service.

420.     Subsection (2) removes subsection (5) of section 17A, a provision about a specific kind of pilot scheme.

421.     Subsection (3) inserts a new section 18A. This provides that any instruments under sections 12 to 15, 17, 17A or 22(5) or paragraphs 1A to 5 of Schedule 3 may be made so as to have effect only for a specified period of up to twelve months, unless the Lord Chancellor extends this period where necessary to ensure the effective operation of a scheme or to coordinate it with another relevant pilot scheme, for up to eighteen months. The Lord Chancellor may further extend this period in order to cover any gap between the end of the pilot and full implementation. Any pilot scheme may apply in relation to one or more areas, type of court, type of offence or class of person.

422.     Subsection (4) inserts a new subsection (9B) into section 25, and provides that any instrument under new section 18A will be subject to the affirmative resolution procedure.

Section 59: SFO's pre-investigation powers in relation to bribery and corruption: foreign officers etc.

423.     Section 59 inserts a new section 2A into the Criminal Justice Act 1987. Section 2 of the Criminal Justice Act 1987 grants the Director of the Serious Fraud Office (SFO) powers to require a person to answer questions, provide information or produce documents for the purposes of an investigation.

424.     The new subsection 2A(1) extends these powers to allow their use where the Director believes certain offences may have taken place and is considering whether to start an investigation.

425.     The new subsection 2A(2) ensures that the investigatory powers under section 2(2) and 2(3) Criminal Justice Act 1987 can only be exercised against an individual during the pre-investigative stage where the Director of the SFO considers it expedient to do so.

426.     The new subsection 2A(3) provides adaptations to secure that section 2 works properly during the pre-investigation stage.

427.     The new subsection 2A(4) extends the offence under s.2(16) so that (among other things) it covers the destruction of documents which a person knows or suspects are relevant to the making of a determination whether to start a formal investigation.

428.     New subsection 2A(5) limits the circumstances under which the pre-investigative powers can be used to where the suspected conduct would constitute a corruption offence under section 108 of the Anti-terrorism, Crime and Security Act 2001 (bribery and corruption: foreign officers etc). New subsection 2A(6) defines corruption offence.

429.     Subsection (3) ensures that the investigative powers set out in the new section 2A apply in Northern Ireland and Scotland, in addition to England and Wales.

Section 60: Contents of an accused's defence statement

430.     Section 60 amends the defence disclosure regime in Part I of the Criminal Procedure and Investigations Act 1996 so that an accused's defence statement will, in addition to the existing requirements, also have to set out particulars of any matters of fact on which he intends to rely in his defence.

431.     Subsection (1) amends section 6A of the 1996 Act to add this new requirement to the list of matters to be included in a defence statement. Subsection (2) amends section 11(2)(f)(ii) of the 1996 Act so that the sanctions for failure to comply with the defence statement requirements (comment by the court or another party and the drawing of inferences by the court or jury) will apply.

Section 61: Compensation for miscarriages of justice

432.     Section 61 amends the current provision for compensating victims of miscarriages of justice in section 133 of the 1988 Act.

433.     Section 133(1) of the 1988 Act sets out the test which the Secretary of State applies in determining whether there is a right to compensation in a particular case. Section 133(1) is not amended by this Act.

434.     Currently there is no time limit for making an application to the Secretary of State for compensation in respect of a miscarriage of justice. This means that applications can be received in respect of convictions that were quashed many years ago.

435.     Subsection (3) amends section 133(2) of the 1988 Act to impose a time limit of two years within which an application under that section must be made. The two-year period begins with the date on which the conviction of the applicant was reversed or the date on which he was granted a pardon.

436.     Subsection (3) also inserts a new section 133(2A) into the 1988 Act. This allows an application made outside the new time limit to be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so. For example, the Secretary of State might regard the applicant being incapacitated for all or almost all of the two-year period as an exceptional circumstance. However it is not anticipated that the Secretary of State would regard the applicant being unaware of the right to apply for compensation as an exceptional circumstance.

437.     Compensation can only be paid to those who have been pardoned or whose convictions have been "reversed". Section 133(5) of the 1988 Act currently provides that a conviction has been "reversed" if it has been quashed, either on an appeal out of time or following one of several types of reference. Subsection (5) inserts two new subsections (5A) and (5B) into section 133 of the 1988 Act. The new subsection (5A) amends the definition of "reversed" for the purposes of section 133 in cases in which the conviction has been quashed but a retrial has been ordered. In such a case the conviction will now only be "reversed" when the person is acquitted of all offences at retrial (or when the prosecution indicates that it has decided not to proceed with a retrial). In such a case, it is the occurrence of one of these two events that will trigger the right to apply for compensation and the two-year time period within which an application should be made. The new subsection (5B) provides that references to a retrial in new subsection (5A) include proceedings in a magistrates' court following remission of a case from the Crown Court.

438.     If the Secretary of State decides that there is a right to compensation under section 133(1), the amount of compensation is assessed by an assessor.

439.     Subsections (4) and (7) replace the existing section 133(4A) of the 1988 Act, which currently makes provision about the assessment of the amount of compensation, with new sections 133A and 133B. Currently:

• There is no limit on the amount of compensation payable in respect of a miscarriage of justice. In determining the amount to be paid, the assessor uses principles analogous to those governing the assessment of damages for civil wrongs. Assessments are, as far as possible, intended to put the applicant back to the financial position he or she would have been in but for the miscarriage of justice.

• Section 133(4A) of the 1988 Act requires the assessor, when assessing the element of an award attributable to suffering, harm to reputation or similar damage (i.e. non-pecuniary loss), to take account of: (a) the seriousness of the offence and the severity of the punishment suffered by the applicant as a result of the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) other convictions of the applicant and any punishment resulting from them.

• The Note for Guidance sent to successful applicants states that the assessor may also make a deduction from the non-pecuniary loss element of an award to take account of conduct of the applicant which could be construed as contributing to the miscarriage of justice.

• As contributory conduct and other convictions and punishments were not taken into account in assessing the pecuniary element of an award, significant levels of awards could be made to applicants who have other serious convictions or who had contributed to the occurrence of the miscarriage of justice.

440.     The new section 133A(2) preserves the effect of the existing section 133(4A)(a) and (4A)(b) of the 1988 Act (as to which, see the second bullet point in the paragraph above).

441.     Section 133A(3) provides that the assessor may make deductions from the overall award, not just from the non-pecuniary element, by reason of any conduct of the applicant which appears to the assessor to have caused or contributed to the conviction and by reason of other convictions of the applicant and any resulting punishments.

442.     Section 133A(4) allows the assessor to make only a nominal award if he considers there to be exceptional circumstances which justify doing so. This might be the result, for example, in cases in which the applicant's own conduct contributed very significantly to the conviction, and/or the applicant has either a lengthy criminal record or has been convicted of particularly serious offences (whether before or after the miscarriage of justice in respect of which the claim is being made).

443.     Section 133A(5) introduces overall limits on the amount of compensation payable in respect of a particular miscarriage of justice. The limit is £1,000,000 where the new section 133B applies (in summary, this is where the applicant has been in detention for more than 10 years as a result of the conviction) and £500,000 in all other cases. No compensation will be payable for pecuniary or non-pecuniary loss in excess of the relevant limit.

444.     Section 133A(6) introduces a limit on the amount of compensation payable in respect of each year of an applicant's lost earnings or earnings capacity. That limit is one and a half times the median annual gross earnings according to the latest figures published by the Office for National Statistics at the time of the assessment (rather than at the time the loss was suffered). Applicants, no matter what their actual or projected level of earnings, will not be compensated for any losses of earnings or earnings capacity at a rate higher than the limit. The same limit applies in respect of claims made by victims of violent crime to the Criminal Injuries Compensation Authority.

445.     Section 133A(7) and (8) enables the overall compensation limit (as set by section 133A(5)) and the earnings compensation limit (as set by section 133A(6)) to be amended by the Secretary of State by order (subject to the affirmative procedure).

446.     Section 133B defines when the higher overall compensation limit applies. The higher limit applies where the applicant has been in "qualifying detention" for at least 10 years at the time the conviction is reversed or the pardon is given. Qualifying detention includes, for example: time spent in prison or in a young offenders institution as a result of the sentence passed for the conviction which was subsequently quashed; time spent detained in a hospital under mental health legislation as a result of the conviction (ignoring, for these purposes, other conditions for such detention such as those relating to the person's health); and time spent on remand for the offence or for another offence where the charge was founded on the same facts or evidence.

447.     However, a period will not count toward the 10-year threshold if during that period the applicant was in both "qualifying detention" and "excluded concurrent detention". Excluded concurrent detention is defined in the section, and includes, for example, periods in which the applicant was serving a concurrent sentence for a second conviction which has not been quashed (and has not resulted in a pardon). Note that in circumstances where the second conviction has been quashed but the person has been convicted at retrial and again sentenced to detention, the sentence imposed at retrial runs from the time when a like sentence passed at the original trial would have begun (see the 1968 Act, Schedule 2). Therefore, pre-retrial detention can be "excluded concurrent detention" if the retrial results in a conviction and sentence of detention.

448.     Subsection (8) amends section 172 of the 1988 Act to extend the new sections 133A and 133B to Northern Ireland as well as England and Wales.

449.     Paragraph 22 of Schedule 27 sets out some transitional provisions dealing with the application of the new measures in section 61. Paragraph 22(1) provides that the two-year time limit introduced by section 61(3) will only apply to applications for compensation made in relation to convictions reversed or pardons given on or after the date on which section 61 comes into force (the commencement date).

450.     As a result of paragraph 22(2), the provisions for the assessment of compensation in the new sections 133A and 133B will apply in relation to applications made on or after the commencement date, and also to applications made before the commencement date but in respect of which the Secretary of State has not, before that date, determined whether there is a right to compensation.

451.     Paragraph 22(3) and (4) provide that the changes to the definition of "reversed" introduced by section 61(5) apply to any conviction quashed on an appeal out of time (whether before or after the commencement date) if an application for compensation in relation to that conviction has not been made before the commencement date.

452.     Paragraph 22(5) and (6) apply a time limit to applications for compensation in relation to convictions reversed and pardons given before the commencement date. Such applications must be made within the two years beginning with the commencement date. Applications made outside this time limit can be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so.

Section 62: Annual report on the Criminal Justice (Terrorism and Conspiracy) Act 1998

453.     Section 62 repeals section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998, which requires a report on the working of that Act to be laid before both Houses of Parliament at least annually.