Definitions of "offender" and "victim"
The Bill inserts definitions of the terms "offender" and "victim" into the Legal Services Act 2000. The term “offender" is defined as " ... in relation to a victim, means a person convicted of the crime or offence that affected the victim".
The term “victim" is defined as:
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a person against whom an offence is committed by another person; and
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a person who, through, or by means of, an offence committed by another person, suffers physical injury or loss of, or damage to, property; and
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a parent or legal guardian of a child, or of a young person, who falls within the two categories above, unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
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a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned.
However, this definition, if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to, that offence or an offence relating to the same incident or series of incidents as that crime or offence (Part 1, Clause 4, amending Section 4(1) of the Legal Services Act 2000, by inserting two new definitions, that of "offender" and that of "victim").
Comment
"Those definitions are substantially the same as the definitions of victim and offender in section 4 of the Victims' Rights Act 2002"
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Criteria for the granting of legal aid in respect of civil matters
Section 9(8) of the Act provides that certain provisions relating to financial eligibility do not apply to applications for legal aid in respect of victims' claims proceedings. These are subsections (2) and (4)(a) and (b):
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Subsection (2) provides that the Legal Services Agency must refuse to grant legal aid to an applicant whose income or disposable capital exceed the relevant thresholds prescribed in regulations made under the Act (the amounts currently are, disposable income of $2,000 per year and disposable capital of $2,000), unless the Agency is satisfied that there are special circumstances having regard to the likely cost of the proceedings to the applicant or the applicant's ability to fund the proceedings if legal aid is not granted;
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Subsection (4)(a) and (b) provide that the Legal Services Agency may refuse to grant legal aid to an applicant in certain circumstances including,
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(a) where the Agency is unable to obtain full information concerning the applicant's financial affairs because of the default or failure of the applicant;
(b) where, in the opinion of the Agency, the prescribed repayment amount would exceed the likely cost of the proceedings for which legal aid is sought.
The effect of the amendment made by this Bill is to extend the application of the exception for victims provided in Section 9(8) to:
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applications for legal aid by a victim in respect of a coroner's inquest or a parole board hearing;
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applications for legal aid from a person or in respect of a proceeding of a class specified in regulations as exempted from the application of subsections (2) and (4)(a) and (b) (Part 1, Clause 5, amending Section 9 of the Legal Services Act 2000 by substituting subsection (8)).
Applications not subject to repayment condition or imposition of further conditions
Section 15 of the Legal Services Act 2000 requires every grant of legal aid to be subject to a repayment condition and provides for further conditions that may be imposed. Certain applications for legal aid that are not subject to Section 15 are listed.
The Bill adds the following applications for legal aid to the list:
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applications for legal aid by a victim in respect of a coroner's inquest or a parole board hearing;
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applications for legal aid from a person or in respect of a proceeding of a class specified in regulations as exempted from the application of section 15 (Clause 6, amending Section 15(6) of the Legal Services Act 2000).
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Agency may decide not to recover
The Bill provides that the Legal Services Agency may at any time decide not to recover a legal aid debt if:
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enforcement of the debt would cause serious hardship to the aided person;
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the cost of enforcing the debt is likely to exceed the amount of the debt that is likely to be repaid;
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the Agency considers that it would be just and equitable not to recover the debt.
The Bill further provides that if the Agency decides not to recover a legal aid debt, the debt must be treated as being written off (Part 1, Clause 7, inserting New Section 36A into the legal Services Act 2000).
Regulations
The Bill provides that regulations may be made exempting any specified class or classes of person or proceeding from the application of Section 9(2) and (4)(a) and (b) (financial eligibility criteria) and Section 15 (conditions on a grant of legal aid) of the Legal Services Act 2000. However, before regulations may be made, the Minister must be satisfied that the proposed exemption is justified on one or more of the following grounds:
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the exemption is in the public interest;
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the exemption facilitates access to justice;
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the exemption is just and equitable in the circumstances (Part 1, Clause 8 amending Section 113(1) of the Legal Services Act 2000 by inserting new paragraph (oa)).
Transitional provisions and commencement
The Bill provides for transitional matters, notably that the amendments made by this Bill apply only to legal aid applications made on or after the date that the Act comes into force (two months after the date on which it receives the Royal assent) (Part 1, Clause 9; Clause 2 of the Bill (the commencement clause)).
