Commentary Criminal legal aid Section 15: Advice and assistance for criminal proceedings
132.Section 15 gives the Lord Chancellor the power to prescribe in regulations when advice and assistance must be made available to individuals in connection with criminal proceedings (subsection (1)). The power broadly reflects the provision about advice and assistance in section 13(1)(b) of the Access to Justice Act 1999.
133.Subsection (2) describes the individuals in respect of whom provision can be made under this section. It covers those involved in investigations that could lead to criminal proceedings (other than where the individual has been arrested and held in custody), those who are before a court, tribunal or other person in criminal proceedings, and those who have been the subject of criminal proceedings.
134.When making the regulations, the Lord Chancellor must take into account the interests of justice (subsection (3)) and the regulations must require the Director, in making a determination whether an individual qualifies for advice and assistance, to take into account the interests of justice (subsection (4)).
135.Subsection (5) provides that the regulations may also require the Director, in making determinations, to apply the means testing provisions (section 21) and any other criteria specified in the regulations.
136.Subsection (6) provides that the regulations may make provision about determinations and the withdrawal of determinations.  Subsections (7) to (9) make further provision about the procedure for determinations under this section.
137.Subsection (7) provides that the regulations may include provision about the form and content of applications and determinations (for example specifying an application form) and provision that an application or determination may or must be made and withdrawn in writing, by telephone or by other prescribed means. The regulations may also include provision about time limits, provision about conditions that must be satisfied by an applicant before a determination is made, provision requiring information and documents to be provided, provision about when a determination may or must be withdrawn, and provision requiring applicants to be given reasons for the making or withdrawal of a determination.
138.Subsection (8) ensures that circumstances in which a determination may or must be withdrawn can relate to compliance by the individual with requirements imposed on the individual under Part 1 of the Act, for example, to provide information or to make a payment under section 23.
139.Subsection (9) provides that the regulations may make provision about reviews of and appeals to a court, tribunal or other person against a decision of the Director that an individual does not qualify for advice and assistance on the grounds that the interests of justice or other criteria set out in regulations made under subsection (5)(b) are not met.
140.Subsection (10) ensures that under this section “assistance” can include advocacy (as defined in section 42(1)) undertaken on behalf of the individual.