3. After rule 44C, there shall be inserted the following new rule:
44D.—(1) Subject to paragraph (9), an application under Article 28(2) of the Criminal Evidence (Northern Ireland) Order 1999 (in this Rule referred to as the “1999 Order”) is made by giving notice in writing to the chief clerk and shall—
(a)be received by the chief clerk within 21 days of the primary disclosure by the prosecutor, or
(b)be accompanied by a full written explanation specifying the reasons why the application could not have been made within the 21 days mentioned above.
(2) Such an application shall contain the following—
(a)a summary of the evidence it is proposed to adduce and of the questions it is proposed to put to any witness;
(b)a full explanation of the reasons why it is considered that the evidence and questions fall within Article 28(3) or (5) of the 1999 Order;
(c)a summary of any document or other evidence to be submitted in support of such evidence and questions;
(d)where it is proposed that a witness at the trial give evidence as to the complainant’s sexual behaviour, the name and date of birth of any such witness.
(3) A copy of the notice of application must be sent to the prosecutor at the same time as it is sent to the chief clerk.
(4) The prosecutor must notify the applicant and the chief clerk, in writing—
(a)whether or not he opposes the application, giving reasons for any such opposition, and
(b)whether or not he wishes to be represented at the hearing of the application,
and where the notice of application is received by the prosecutor more than 14 days before the date set for the trial to begin, the notification must be issued within 14 days of his receipt of the notice.
(5) In considering any application under this rule, the court may request a party to the proceedings to provide the court with such information as it may specify and which the court considers would assist in determining the application.
(6) Where the court makes such a request, the person required to provide the information must do so within 14 days of the court making the request or by such time as the court considers appropriate in the circumstances of the case.
(7) An application under paragraph (1) shall be determined by a judge following a hearing.
(8) The date and time of the hearing must be—
(a)determined by the chief clerk after taking into consideration—
(i)any time which a party to the proceedings has been given to respond to a request for information; and
(ii)the date fixed for any other hearing relevant to the proceedings; and
(b)notified by the chief clerk to both the applicant and the prosecutor.
(9) An application under Article 28(2) of the 1999 Order may be made orally to the trial judge where the application is made after the trial has begun.
(10) The person making the application under paragraph (9) shall—
(a)give reasons why the applicant failed to make the application in writing in accordance with paragraph (1); and
(b)provide the court with the information set out in paragraph (2).
(11) The chief clerk shall, as soon as possible after the hearing of an application under paragraph (1), give notice of the decision by the judge to—
(a)the applicant or his legal representative; and
(b)the prosecution.
(12) In this Rule “primary disclosure” has the same meaning as in Part I of the Criminal Procedure and Investigations Act 1996(1).”.