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Part I E+W+S+N.I. Fraud

Serious Fraud OfficeE+W+S+N.I.

1 The Serious Fraud Office.E+W+N.I.

(1)A Serious Fraud Office shall be constituted for England and Wales and Northern Ireland.

(2)The Attorney General shall appoint a person to be the Director of the Serious Fraud Office (referred to in this Part of this Act as “the Director”), and he shall discharge his functions under the superintendence of the Attorney General.

(3)The Director may investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud.

(4)The Director may, if he thinks fit, conduct any such investigation in conjunction either with the police or with any other person who is, in the opinion of the Director, a proper person to be concerned in it.

(5)The Director may—

(a)institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud; and

(b)take over the conduct of any such proceedings at any stage.

(6)The Director shall discharge such other functions in relation to fraud as may from time to time be assigned to him by the Attorney General.

(7)The Director may designate for the purposes of subsection (5) above any member of the Serious Fraud Office who is—

(a)a barrister in England and Wales or Northern Ireland;

(b)a solicitor of the Supreme Court; or

(c)a solicitor of the Supreme Court of Judicature of Northern Ireland.

(8)Any member so designated shall, without prejudice to any functions which may have been assigned to him in his capacity as a member of that Office, have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director.

F1(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12)Any member so designated who is a barrister in Northern Ireland or a solicitor of the Supreme Court of Judicature of Northern Ireland shall have—

(a)in any court the rights of audience enjoyed by solicitors of the Supreme Court of Judicature of Northern Ireland and, in the Crown Court in Northern Ireland, such additional rights of audience as may be given by virtue of subsection (14) below; and

(b)in the Crown Court in Northern Ireland, the rights of audience enjoyed by barristers employed by the Director of Public Prosecutions for Northern Ireland.

(13)Subject to subsection (14) below, the reference in subsection (12)(a) above to rights of audience enjoyed by solicitors of the Supreme Court of Judicature of Northern Ireland is a reference to such rights enjoyed in the Crown Court in Northern Ireland as restricted by any direction given by the Lord Chief Justice of Northern Ireland under section 50 of the M1Judicature (Northern Ireland) Act 1978.

(14)For the purpose of giving any member so designated who is a barrister in Northern Ireland or a solicitor of the Supreme Court of Judicature of Northern Ireland additional rights of audience in the Crown Court in Northern Ireland, the Lord Chief Justice of Northern Ireland may direct that any direction given by him under the said section 50 shall not apply to such members.

(15)Schedule 1 to this Act shall have effect.

(16)For the purposes of this section (including that Schedule) references to the conduct of any proceedings include references to the proceedings being discontinued and to the taking of any steps (including the bringing of appeals and making of representations in respect of applications for bail) which may be taken in relation to them.

(17)In the application of this section (including that Schedule) to Northern Ireland references to the Attorney General are to be construed as references to him in his capacity as Attorney General for Northern Ireland.

Annotations:

Amendments (Textual)

Marginal Citations

2 Director’s investigation powers.E+W+S+N.I.

(1)The powers of the Director under this section shall be exercisable, but only for the purposes of an investigation under section 1 above, [F2or, on a request made by the Attorney General of the Isle of Man, Jersey or Guernsey, under legislation corresponding to that section and having effect in the Island whose [F3an authority entitled to make such a request],]in any case in which it appears to him that there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person.

[F4(1A)The authorities entitled to request the Director to exercise his powers under this section are—

(a)the Attorney-General of the Isle of Man, Jersey or Guernsey, acting under legislation corresponding to section 1 of this Act and having effect in the Island whose Attorney-General makes the request; and

(b)the Secretary of State acting under section 4(2A) of the M2Criminal Justice (International Co-operation) Act 1990, in response to a request received by him from an overseas court, tribunal or authority (an “overseas authority”).

(1B)The Director shall not exercise his powers on a request from the Secretary of State acting in response to a request received from an overseas authority within subsection (1A)(b) above unless it appears to the Director on reasonable grounds that the offence in respect of which he has been requested to obtain evidence involves serious or complex fraud.]

(2)The Director may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person whom he has reason to believe has relevant information to [F5answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith].

(3)The Director may by notice in writing require the person under investigation or any other person to produce at [F6such place as may be specified in the notice and either forthwith or at such time as may be so specified,]any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified [F6description]which appear to him so to relate; and—

(a)if any such documents are produced, the Director may—

(i)take copies or extracts from them;

(ii)require the person producing them to provide an explanation of any of them;

(b)if any such documents are not produced, the Director may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(4)Where, on information on oath laid by a member of the Serious Fraud Office, a justice of the peace is satisfied, in relation to any documents, that there are reasonable grounds for believing—

(a)that—

(i)a person has failed to comply with an obligation under this section to produce them;

(ii)it is not practicable to serve a notice under subsection (3) above in relation to them; or

(iii)the service of such a notice in relation to them might seriously prejudice the investigation; and

(b)that they are on premises specified in the information,

he may issue such a warrant as is mentioned in subsection (5) below.

(5)The warrant referred to above is a warrant authorising any constable—

(a)to enter (using such force as is reasonably necessary for the purpose) and search the premises, and

(b)to take possession of any documents appearing to be documents of the description specified in the information or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.

(6)Unless it is not practicable in the circumstances, a constable executing a warrant issued under subsection (4) above shall be accompanied by an appropriate person.

(7)In subsection (6) above “appropriate person” means—

(a)a member of the Serious Fraud Office; or

(b)some person who is not a member of that Office but whom the Director has authorised to accompany the constable.

(8)A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him—

(a)on a prosecution for an offence under subsection (14) below; or

(b)on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

[F7(8AA)However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.]

[F8(8A)Any evidence obtained by the Director for use by an overseas authority shall be furnished by him to the Secretary of State for transmission to the overseas authority which requested it.

(8B)If in order to comply with the request of the overseas authority it is necessary for any evidence obtained by the Director to be accompanied by any certificate, affidavit or other verifying document, the Director shall also furnish for transmission such document of that nature as may be specified by the Secretary of State when asking the Director to obtain the evidence.

(8C)Where any evidence obtained by the Director for use by an overseas authority consists of a document the original or a copy shall be transmitted, and where it consists of any other article the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request of the overseas authority.]

(9)A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.

(10)A person shall not under this section be required to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless—

(a)the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(b)the Director has authorised the making of the requirement or, if it is impracticable for him to act personally, a member of the Serious Fraud Office designated by him for the purposes of this subsection has done so.

(11)Without prejudice to the power of the Director to assign functions to members of the Serious Fraud Office, the Director may authorise any competent investigator (other than a constable) who is not a member of that Office to exercise on his behalf all or any of the powers conferred by this section, but no such authority shall be granted except for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority.

(12)No person shall be bound to comply with any requirement imposed by a person exercising powers by virtue of any authority granted under subsection (11) above unless he has, if required to do so, produced evidence of his authority.

(13)Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(14)A person who, in purported compliance with a requirement under this section—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular,

shall be guilty of an offence.

(15)A person guilty of an offence under subsection (14) above shall—

(a)on conviction on indictment, be liable to imprisonment for a term not exceeding two years or to a fine or to both; and

(b)on summary conviction, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(16)Where any person—

(a)knows or suspects that an investigation by the police or the Serious Fraud Office into serious or complex fraud is being or is likely to be carried out; and

(b)falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects are or would be relevant to such an investigation,

he shall be guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the documents from persons carrying out such an investigation.

(17)A person guilty of an offence under subsection (16) above shall—

(a)on conviction on indictment, be liable to imprisonment for a term not exceeding 7 years or to a fine or to both; and

(b)on summary conviction, be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both.

(18)In this section, “documents” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form [F9; and “evidence” (in relation to subsections (1A)(b), (8A), (8B) and (8C) above) includes documents and other articles.]

(19)In the application of this section to Scotland, the reference to a justice of the peace is to be construed as a reference to the sheriff; and in the application of this section to Northern Ireland, subsection (4) above shall have effect as if for the references to information there were substituted references to a complaint.

3 Disclosure of information.E+W

(1)Where any information subject to an obligation of secrecy under the M3Taxes Management Act 1970 has been disclosed by the Commissioners of Inland Revenue or an officer of those Commissioners to any member of the Serious Fraud Office for the purposes of any prosecution of an offence relating to inland revenue, that information may be disclosed by any member of the Serious Fraud Office—

(a)for the purposes of any prosecution of which that Office has the conduct;

(b)to any member of the Crown Prosecution Service for the purposes of any prosecution of an offence relating to inland revenue; and

(c)to the Director of Public Prosecutions for Northern Ireland for the purposes of any prosecution of an offence relating to inland revenue,

but not otherwise.

(2)Where the Serious Fraud Office has the conduct of any prosecution of an offence which does not relate to inland revenue, the court may not prevent the prosecution from relying on any evidence under section 78 of the M4Police and Criminal Evidence Act 1984 (discretion to exclude unfair evidence) by reason only of the fact that the information concerned was disclosed by the Commissioners of Inland Revenue or an officer of those Commissioners for the purposes of any prosecution of an offence relating to inland revenue.

(3)Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the M5Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office but any information disclosed by virtue of this subsection may only be disclosed by a member of the Serious Fraud Office for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere and may only be disclosed by such a member if he is designated by the Director for the purposes of this subsection.

(4)Without prejudice to his power to enter into agreements apart from this subsection, the Director may enter into a written agreement for the supply of information to or by him subject, in either case, to an obligation not to disclose the information concerned otherwise than for a specified purpose.

(5)Subject to subsections (1) and (3) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection—

(a)to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty’s Government in Northern Ireland);

(b)to any competent authority;

(c)for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere; and

(d)for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.

(6)The following are competent authorities for the purposes of subsection (5) above—

(a)an inspector appointed under Part XIV of the M6Companies Act 1985 or Part XV of the M7Companies (Northern Ireland) Order 1986;

(b)an Official Receiver;

(c)the Accountant in Bankruptcy;

(d)an Official Assignee;

[F10(e)a person appointed under—

(i)section 167 of the Financial Services and Markets Act 2000 (general investigations),

(ii)section 168 of that Act (investigations in particular cases),

(iii)section 169(1)(b) of that Act (investigation in support of overseas regulator),

(iv)section 284 of that Act (investigations into affairs of certain collective investment schemes), or

(v)regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),

to conduct an investigation;

(f)a body corporate established in accordance with section 212(1) of the Financial Services and Markets Act 2000 (compensation scheme manager);]

(l)any body having supervisory, regulatory or disciplinary functions in relation to any profession or any area of commercial activity; and

(m)any person or body having, under the law of any country or territory outside the United Kingdom, functions corresponding to any of the functions of any person or body mentioned in any of the foregoing paragraphs.

(7)An order under subsection (5)(d) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.

Annotations:

Extent Information

E1This version of this provision extends to England and Wales only; a separate version has been created for Northern Ireland only

Amendments (Textual)

F10S. 3(6)(e)(f) substituted (1.12.2001) for s. 3(6)(e)-(k) by S.I. 2001/3649, arts. 1, 308

Marginal Citations

M7S.I. 1986 No.1032 (N.I. 6).

3 Disclosure of information.N.I.

(1)Where any information subject to an obligation of secrecy under the M20Taxes Management Act 1970 has been disclosed by the Commissioners of Inland Revenue or an officer of those Commissioners to any member of the Serious Fraud Office for the purposes of any prosecution of an offence relating to inland revenue, that information may be disclosed by any member of the Serious Fraud Office—

(a)for the purposes of any prosecution of which that Office has the conduct;

(b)to any member of the Crown Prosecution Service for the purposes of any prosecution of an offence relating to inland revenue; and

(c)to the Director of Public Prosecutions for Northern Ireland for the purposes of any prosecution of an offence relating to inland revenue,

but not otherwise.

(2)Where the Serious Fraud Office has the conduct of any prosecution of an offence which does not relate to inland revenue, the court may not prevent the prosecution from relying on any evidence under section 78 of the M21Police and Criminal Evidence Act 1984 (discretion to exclude unfair evidence) by reason only of the fact that the information concerned was disclosed by the Commissioners of Inland Revenue or an officer of those Commissioners for the purposes of any prosecution of an offence relating to inland revenue.

(3)Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the M22Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office but any information disclosed by virtue of this subsection may only be disclosed by a member of the Serious Fraud Office for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere and may only be disclosed by such a member if he is designated by the Director for the purposes of this subsection.

(4)Without prejudice to his power to enter into agreements apart from this subsection, the Director may enter into a written agreement for the supply of information to or by him subject, in either case, to an obligation not to disclose the information concerned otherwise than for a specified purpose.

(5)Subject to subsections (1) and (3) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection—

(a)to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty’s Government in Northern Ireland);

(b)to any competent authority;

(c)for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere; and

(d)for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.

(6)The following are competent authorities for the purposes of subsection (5) above—

(a)an inspector appointed under Part XIV of the M23Companies Act 1985 or Part XV of the M24Companies (Northern Ireland) Order 1986;

(b)an Official Receiver;

(c)the Accountant in Bankruptcy;

[F39(d)the official receiver for Northern Ireland;]

[F40(e)a person appointed under—

(i)section 167 of the Financial Services and Markets Act 2000 (general investigations),

(ii)section 168 of that Act (investigations in particular cases),

(iii)section 169(1)(b) of that Act (investigation in support of overseas regulator),

(iv)section 284 of that Act (investigations into affairs of certain collective investment schemes), or

(v)regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),

to conduct an investigation;

(f)a body corporate established in accordance with section 212(1) of the Financial Services and Markets Act 2000 (compensation scheme manager);]

(l)any body having supervisory, regulatory or disciplinary functions in relation to any profession or any area of commercial activity; and

(m)any person or body having, under the law of any country or territory outside the United Kingdom, functions corresponding to any of the functions of any person or body mentioned in any of the foregoing paragraphs.

(7)An order under subsection (5)(d) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.

Annotations:

Extent Information

E2This version of this provision extends to Northern Ireland only; a separate version has been created for England and Wales only

Amendments (Textual)

F40S. 3(6)(e)(f) substituted (1.12.2001) for s. 3(6)(e)-(k) by S.I. 2001/3649, arts. 1, 308

Marginal Citations

M24S.I. 1986 No.1032 (N.I. 6).

Transfer of cases to Crown CourtE+W

4 Notices of transfer and designated authorities.E+W

(1)If—

(a)a person has been charged with an indictable offence; and

(b)in the opinion of an authority designated by subsection (2) below or of one of such an authority’s officers acting on the authority’s behalf the evidence of the offence charged—

(i)would be sufficient for the person charged to be committed for trial; and

(ii)reveals a case of fraud of such seriousness and complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court; and

(c)before the magistrates’ court in whose jurisdiction the offence has been charged begins to inquire into the case as examining justices the authority or one of the authority’s officers acting on the authority’s behalf gives the court a notice (in this Act referred to as a “notice of transfer”) certifying that opinion,

the functions of the magistrates’ court shall cease in relation to the case, except as provided by section 5(3) [F11, (7A)]and (8) below and by [F12paragraph 2 of Schedule 3 to the Access to Justice Act 1999].

(2)The authorities mentioned in subsection (1) above (in this Act referred to as “designated authorities”) are—

(a)the Director of Public Prosecutions;

(b)the Director of the Serious Fraud Office;

(c)the Commissioners of Inland Revenue;

(d)the Commissioners of Customs and Excise; and

(e)the Secretary of State.

(3)A designated authority’s decision to give notice of transfer shall not be subject to appeal or liable to be questioned in any court.

[F13(4)This section and sections 5 and 6 below shall not apply in any case in which section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences) applies.]

Annotations:

Amendments (Textual)

F13S. 4(4) inserted (4.1.1999 for specified purposes and otherwise 15.1.2001) by 1998 c. 37, s. 119, Sch. 8 para. 65; S.I. 1998/2327, art. 4(2)(c); S.I. 2000/3283, art. 2(c) (subject to art. 3)

5 Notices of transfer— procedure.E+W

(1)A notice of transfer shall specify the proposed place of trial and in selecting that place the designated authority shall have regard to the considerations to which section 7 of the M8Magistrates’ Courts Act 1980 requires a magistrates’ court committing a person for trial to have regard when selecting the place at which he is to be tried.

(2)A notice of transfer shall specify the charge or charges to which it relates and include or be accompanied by such additional matter as regulations under subsection (9) below may require.

(3)If a magistrates’ court has remanded a person to whom a notice of transfer relates in custody, it shall have power, subject to section 4 of the M9Bail Act 1976 and regulations under section 22 of the M10Prosecution of Offences Act 1985—

(a)to order that he shall be safely kept in custody until delivered in due course of law; or

(b)to release him on bail in accordance with the Bail Act 1976, that is to say, by directing him to appear before the Crown Court for trial;

and where his release on bail is conditional on his providing one or more surety or sureties and, in accordance with section 8(3) of the Bail Act 1976, the court fixes the amount in which the surety is to be bound with a view to his entering into his recognizance subsequently in accordance with subsections (4) and (5) or (6) of that section, the court shall in the meantime make an order such as is mentioned in paragraph (a) of this subsection.

(4)If the conditions specified in subsection (5) below are satisfied, a court may exercise the powers conferred by subsection (3) above [F14in relation to a person charged without his]being brought before it in any case in which by virtue of section 128(3A) of the M11Magistrates’ Courts Act 1980 it would have power further to remand him on an adjournment such as is mentioned in that subsection.

(5)The conditions mentioned in subsection (4) above are—

(a)that the person [F15in question]has given his written consent to the powers conferred by subsection (3) above being exercised without his being brought before the court; and

(b)that the court is satisfied that, when he gave his consent, he knew that the notice of transfer had been issued.

(6)Where notice of transfer is given after [F16a person to whom it relates]has been remanded on bail to appear before [F17a magistrates’ court]on an appointed day, the requirement that he shall so appear shall cease on the giving of the notice, unless the notice states that it is to continue.

(7)Where the requirement that a person [F18to whom the notice of transfer relates]shall appear before [F19a magistrates’ court]ceases by virtue of subsection (6) above, it shall be his duty to appear before the Crown Court at the place specified by the notice of transfer as the proposed place of trial or at any place substituted for it by a direction under section 76 of the M12Supreme Court Act 1981.

[F20(7A)If the notice states that the requirement is to continue, when a person to whom the notice relates appears before the magistrates’ court, the court shall have—

(a)the powers and duty conferred on a magistrates’ court by subsection (3) above, but subject as there provided; and

(b)power to enlarge, in the surety’s absence, a recognizance conditioned in accordance with section 128(4)(a) of the Magistrates’ Courts Act 1980 so that the surety is bound to secure that the person charged appears also before the Crown Court.]

(8)For the purposes of the M13Criminal Procedure (Attendance of Witnesses) Act 1965—

(a)any magistrates’ court for the petty sessions area for which the court from which a case was transferred sits shall be treated as examining magistrates; and

(b)a person [F21indicated in the notice of transfer as a proposed witness;]shall be treated as a person who has been examined by the court.

(9)The Attorney General—

(a)shall by regulations make provision requiring the giving of a copy of a notice of transfer, together with [F22copies of the documents containing the evidence (including oral evidence)] on which any charge to which it relates is based—

(i)to [F23any person to whom the notice of transfer relates]; and

(ii)to the Crown Court sitting at the [F24place specified by the notice of transfer as the]proposed place of trial; and

(b)may by regulations make such further provision in relation to notices of transfer, including provision as to the duties of a designated authority in relation to such notices, as appears to him to be appropriate.

[F25(9A)Regulations under subsection (9)(a) above may provide that there shall be no requirement for copies of documents to accompany the copy of the notice of transfer if they are referred to, in documents sent with the notice of transfer, as having already been supplied.]

(10)The power to make regulations conferred by subsection (9) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(11)Any such regulations may make different provision with respect to different cases or classes of case.

[F266 Applications for dismissal.E+W

(1)Where notice of transfer has been given, any person to whom the notice relates, at any time before he is arraigned (and whether or not an indictment has been preferred against him), may apply orally or in writing to the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial for the charge, or any of the charges, in the case to be dismissed; and the judge shall dismiss a charge (and accordingly quash a count relating to it in any indictment preferred against the applicant) if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him.

(2)No oral application may be made under subsection (1) above unless the applicant has given the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial written notice of his intention to make the application.

(3)Oral evidence may be given on such an application only with the leave of the judge or by his order, and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so.

(4)If the judge gives leave permitting, or makes an order requiring, a person to give oral evidence, but he does not do so, the judge may disregard any document indicating the evidence that he might have given.

(5)Dismissal of the charge, or all the charges, against the applicant shall have the same effect as a refusal by examining magistrates to commit for trial, except that no further proceedings may be brought on a dismissed charge except by means of the preferment of a voluntary bill of indictment.

(6)Crown Court Rules may make provision for the purposes of this section and, without prejudice to the generality of this subsection—

(a)as to the time or stage in the proceedings at which anything required to be done is to be done (unless the court grants leave to do it at some other time or stage);

(b)as to the contents and form of notices or other documents;

(c)as to the manner in which evidence is to be submitted; and

(d)as to persons to be served with notices or other material.]

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

Preparatory hearingsE+W

7 Power to order preparatory hearing.E+W

(1)Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such [F27seriousness or complexity] that substantial benefits are likely to accrue from a hearing (in this Act referred to as a “preparatory hearing”) before the jury are sworn, for the purpose of—

(a)identifying issues which are likely to be material to the verdict of the jury;

(b)assisting their comprehension of any such issues;

(c)expediting the proceedings before the jury; or

(d)assisting the judge’s management of the trial,

he may order that such a hearing shall be held.

(2)A judge may make an order under subsection (1) above on the application either of the prosecution or of the person indicted or, if the indictment charges a number of persons, any of them, or of his own motion.

[F28(3)If a judge orders a preparatory hearing, he may also order the prosecution to prepare and serve any documents that appear to him to be relevant and whose service could be ordered at the preparatory hearing by virtue of this Part of this Act or Crown Court Rules.

(4)Where—

(a)a judge has made an order under subsection (3) above; and

(b)the prosecution have complied with it,

the judge may order the person indicted or, if the indictment charges a number of persons, any of them to prepare and serve any documents that appear to him to be relevant and whose service could be so ordered at the preparatory hearing.

(5)An order under this section may specify the time within which it is to be complied with, but Crown Court Rules may make provision as to the minimum or maximum time that may be specified for compliance.]

Annotations:

Amendments (Textual)

F27Words in s. 7(1) substituted (3.2.1995) by 1994 c. 33, s. 168(1), Sch. 9 para. 30; S.I. 1995/127, art. 2(1), Sch. Appendix A

F28S. 7(3)-(5) repealed (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3) by 1996 c. 25, ss. 72, 80, Sch. 3 paras. 2, 8, Sch. 5 para. 2, Table12 (with s. 78(1)); S.I. 1997/1019, art.2

8 Commencement of trial and arraignment.E+W

(1)If a judge orders a preparatory hearing, the trial shall begin with that hearing.

(2)Arraignment shall accordingly take place at the start of the preparatory hearing.

9 The preparatory hearing.E+W

(1)At the preparatory hearing the judge may exercise any of the powers specified in this section.

(2)The judge may adjourn a preparatory hearing from time to time.

(3)He may determine—

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F29

[F30(aa)a question arising under section 6 of the Criminal Justice Act 1993 (relevance of external law to certain charges of conspiracy, attempt and incitement);]

(b)any question as to the admissibility of evidence; and

(c)any other question of law relating to the case.

(4)He may order the prosecution—

(a)to supply the court and the defendant or, if there is more than one, each of them with a statement (a “case statement”) of the following—

(i)the principal facts of the prosecution case;

(ii)the witnesses who will speak to those facts;

(iii)any exhibits relevant to those facts;

(iv)any proposition of law on which the prosecution proposes to rely; and

(v)the consequences in relation to any of the counts in the indictment that appear to the prosecution to flow from the matters stated in pursuance of sub-paragraphs (i) to (iv) above;

(b)to prepare their evidence and other explanatory material in such a form as appears to him to be likely to aid comprehension by the jury and to supply it in that form to the court and to the defendant or, if there is more than one, to each of them;

(c)to give the court and the defendant or, if there is more than one, each of them notice of documents the truth of the contents of which ought in the prosecution’s view to be admitted and of any other matters which in their view ought to be agreed;

(d)to make any amendments of any case statement supplied in pursuance of an order under paragraph (a) above that appear to the court to be appropriate, having regard to objections made by the defendant or, if there is more than one, by any of them.

(5)Where—

(a)a judge has ordered the prosecution to supply a case statement; and

(b)the prosecution have complied with the order,

he may order the defendant or, if there is more than one, each of them—

(i)to give the court and the prosecution a statement in writing setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution;

(ii)to give the court and the prosecution notice of any objections that he has to the case statement;

(iii)to inform the court and the prosecution of any point of law (including a point as to the admissibility of evidence) which he wishes to take, and any authority on which he intends to rely for that purpose;

(iv)to give the court and the prosecution a notice stating the extent to which he agrees with the prosecution as to documents and other matters to which a notice under subsection (4)(c) above relates and the reason for any disagreement.

(6)Crown Court Rules may provide that except to the extent that disclosure is required—

(a)by [F31section 5(7) of the Criminal Procedure and Investigations Act 1996] (alibi); or

(b)by rules under section 81 of the M14Police and Criminal Evidence Act 1984 (expert evidence),

a summary required by virtue of subsection (5) above need not disclose who will give evidence.

(7)A judge making an order under subsection (5) above shall warn the defendant or, if there is more than one, all of them of the possible consequence under section 10[F32(1) ]below of not complying with it.

(8)If it appears to a judge that reasons given in pursuance of subsection (5)(iv) above are inadequate, he shall so inform the person giving them, and may require him to give further or better reasons.

(9)An order under this section may specify the time within which any specified requirement contained in it is to be complied with, but Crown Court Rules may make provision as to the minimum or maximum time that may be specified for compliance.

(10)An order or ruling made [F33under this section] shall have effect during the trial, unless it appears to the judge, on application made to him during the trial, that the interests of justice require him to vary or discharge it.

(11)An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal.

(12)Subject to rules of court made under section 53(1) of the M15Supreme Court Act 1981 (power by rules to distribute business of Court of Appeal between its civil and criminal divisions), the jurisdiction of the Court of Appeal under subsection (11) above shall be exercised by the criminal division of the court; and the reference in that subsection to the Court of Appeal shall be construed as a reference to that division.

(13)The judge may continue a preparatory hearing notwithstanding that leave to appeal has been granted under subsection (11) above, but no jury shall be sworn until after the appeal has been determined or abandoned.

(14)On the termination of the hearing of an appeal, the Court of Appeal may confirm, reverse or vary the decision appealed against.

Annotations:

Amendments (Textual)

F30S. 9(3)(aa) inserted (1.6.1999) by 1993 c. 36, Pt. I ss. 6(8) (by s. 1(1) it is provided that Pt. I applies as there mentioned) (with s. 78(5)); S.I. 1999/1189, art. 2

F31Words in s. 9(6)(a) substituted (4.7.1996 with application1.4.1997 as mentioned in s. 74(5)) by 1996 c. 25, s. 74(4)(5)(with s. 78(1)); S.I. 1997/682, art. 2(1)(a)

F32Word in s. 9(7) repealed (4.7.1996 with application 15.4.1997 as mentioned in Sch. 3) by 1996 c. 25, ss. 72, 80, Sch. 3 para. 3(2), 8, Sch. 5 para. 2 Table 12 (with s. 78(1)); S.I. 1997/1019, art. 2

F33Words in s. 9(10) substituted (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3 para. 8) by 1996 c. 25, ss. 72, Sch. 3 para. 3(3), 8 (with s. 78(1)); S.I. 1997/1019, art. 2

Modifications etc. (not altering text)

C2S. 9 amended (4.7.1996 with application (1.4.1997) as mentioned in s. 1(5)) by 1996 c. 25, ss. 1, 20(2)(with s. 78(1)); S.I. 1997/682, art. 2(1)(a)

C3S. 9(3) modified (4.9.1998) by 1977 c. 45 s. 1A(10) (as inserted by 1998 c. 40, s. 5(1)).

Marginal Citations

[F349A Orders before preparatory hearing.E+W

(1)Subsection (2) below applies where—

(a)a judge orders a preparatory hearing, and

(b)he decides that any order which could be made under section 9(4) or (5) above at the hearing should be made before the hearing.

(2)In such a case—

(a)he may make any such order before the hearing (or at the hearing), and

(b)subsections (4) to (10) of section 9 above shall apply accordingly.]

Annotations:

Amendments (Textual)

F34S. 9A inserted (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3 para. 8) by 1996 c. 25, s. 72, Sch. 3 paras. 4, 8(with s. 78(1)); S.I. 1997/1019, art.2

[F3510 Later stages of trial.E+W

(1)Any party may depart from the case he disclosed in pursuance of a requirement imposed under section 9 above.

(2)Where—

(a)a party departs from the case he disclosed in pursuance of a requirement imposed under section 9 above, or

(b)a party fails to comply with such a requirement,

the judge or, with the leave of the judge, any other party may make such comment as appears to the judge or the other party (as the case may be) to be appropriate and the jury may draw such inference as appears proper.

(3)In deciding whether to give leave the judge shall have regard—

(a)to the extent of the departure or failure, and

(b)to whether there is any justification for it.

(4)Except as provided by this section no part—

(a)of a statement given under section 9(5) above, or

(b)of any other information relating to the case for the accused or, if there is more than one, the case for any of them, which was given in pursuance of a requirement imposed under section 9 above,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused concerned.]

Annotations:

Amendments (Textual)

F35S. 10 substituted (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3 para. 8) by 1996 c. 25, s. 72, Sch. 3 paras.5, 8; S.I. 1997/1019, art.2

Reporting restrictionsE+W+S

[F3611 Restrictions on reporting.E+W+S

(1)Except as provided by this section—

(a)no written report of proceedings falling within subsection (2) below shall be published in Great Britain;

(b)no report of proceedings falling within subsection (2) below shall be included in a relevant programme for reception in Great Britain.

(2)The following proceedings fall within this subsection—

(a)an application under section 6(1) above;

(b)a preparatory hearing;

(c)an application for leave to appeal in relation to such a hearing;

(d)an appeal in relation to such a hearing.

(3)The judge dealing with an application under section 6(1) above may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of the application.

(4)The judge dealing with a preparatory hearing may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a)the preparatory hearing, or

(b)an application to the judge for leave to appeal to the Court of Appeal under section 9(11) above in relation to the preparatory hearing.

(5)The Court of Appeal may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a)an appeal to the Court of Appeal under section 9(11) above in relation to a preparatory hearing,

(b)an application to that Court for leave to appeal to it under section 9(11) above in relation to a preparatory hearing, or

(c)an application to that Court for leave to appeal to the House of Lords under Part II of the M16Criminal Appeal Act 1968 in relation to a preparatory hearing.

(6)The House of Lords may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a)an appeal to that House under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing, or

(b)an application to that House for leave to appeal to it under Part II of the M17Criminal Appeal Act 1968 in relation to a preparatory hearing.

(7)Where there is only one accused and he objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(8)Where there are two or more accused and one or more of them objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(9)Subsection (1) above does not apply to—

(a)the publication of a report of an application under section 6(1) above, or

(b)the inclusion in a relevant programme of a report of an application under section 6(1) above,

where the application is successful.

(10)Where—

(a)two or more persons are jointly charged, and

(b)applications under section 6(1) above are made by more than one of them,

subsection (9) above shall have effect as if for the words “the application is” there were substituted “all the applications are”.

(11)Subsection (1) above does not apply to—

(a)the publication of a report of an unsuccessful application made under section 6(1) above,

(b)the publication of a report of a preparatory hearing,

(c)the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

(d)the inclusion in a relevant programme of a report of an unsuccessful application made under section 6(1) above,

(e)the inclusion in a relevant programme of a report of a preparatory hearing, or

(f)the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

at the conclusion of the trial of the accused or of the last of the accused to be tried.

(12)Subsection (1) above does not apply to a report which contains only one or more of the following matters—

(a)the identity of the court and the name of the judge;

(b)the names, ages, home addresses and occupations of the accused and witnesses;

(c)any relevant business information;

(d)the offence or offences, or a summary of them, with which the accused is or are charged;

(e)the names of counsel and solicitors in the proceedings;

(f)where the proceedings are adjourned, the date and place to which they are adjourned;

(g)any arrangements as to bail;

[F37(h)whether a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service was granted to the accused or any of the accused.]]

(13)The addresses that may be published or included in a relevant programme under subsection (12) above are addresses—

(a)at any relevant time, and

(b)at the time of their publication or inclusion in a relevant programme;

and “relevant time” here means a time when events giving rise to the charges to which the proceedings relate occurred.

(14)The following is relevant business information for the purposes of subsection (12) above—

(a)any address used by the accused for carrying on a business on his own account;

(b)the name of any business which he was carrying on on his own account at any relevant time;

(c)the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;

(d)the address of any such firm;

(e)the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;

(f)the address of the registered or principal office of any such company;

(g)any working address of the accused in his capacity as a person engaged by any such company;

and here “engaged” means engaged under a contract of service or a contract for services, and “relevant time” has the same meaning as in subsection (13) above.

(15)Nothing in this section affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.

(16)In this section—

(a)publish”, in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;

(b)expressions cognate with “publish” shall be construed accordingly;

(c)relevant programme” means a programme included in a programme service, within the meaning of the M18Broadcasting Act 1990.

Annotations:

Amendments (Textual)

F36Ss. 11, 11A substituted for s. 11 (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3 para. 8) by 1996 c. 25, s. 72, Sch. 3 paras. 6, 8 (with s. 78); S.I. 1997/1019, art. 2

Marginal Citations

[F3811A Offences in connection with reporting.E+W+S

(1)If a report is published or included in a relevant programme in contravention of section 11 above each of the following persons is guilty of an offence—

(a)in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;

(b)in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;

(c)in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2)A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

(3)Proceedings for an offence under this section shall not be instituted in England and Wales otherwise than by or with the consent of the Attorney General.

(4)Subsection (16) of section 11 above applies for the purposes of this section as it applies for the purposes of that.]

Annotations:

Amendments (Textual)

F38Ss. 11, 11A substituted for s. 11 (4.7.1996 with application (15.4.1997) as mentioned in Sch. 3 para. 8) by 1996 c. 25, s. 72, Sch. 3 paras.6, 8 (with s. 78); S.I. 1997/1019, art.2

Conspiracy to defraudE+W

12 Charges of and penalty for conspiracy to defraud.E+W

(1)If—

(a)a person agrees with any other person or persons that a course of conduct shall be pursued; and

(b)that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions,

the fact that it will do so shall not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.

(2)In section 5(2) of the Criminal Law M19Act 1977, the words from “and” to the end are hereby repealed.

(3)A person guilty of conspiracy to defraud is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine or both.

Annotations:

Marginal Citations