Search Legislation

Criminal Justice Act 2003

Status:

This version of this Act contains provisions that are prospective.

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to Criminal Justice Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations.

E+W+S+N.I.

Criminal Justice Act 2003

2003 CHAPTER 44

An Act to make provision about criminal justice (including the powers and duties of the police) and about dealing with offenders; to amend the law relating to jury service; to amend Chapter 1 of Part 1 of the Crime and Disorder Act 1998 and Part 5 of the Police Act 1997; to make provision about civil proceedings brought by offenders; and for connected purposes.

[20th November 2003]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+WAmendments of Police and Criminal Evidence Act 1984

1Extension of powers to stop and searchE+W

(1)In this Part, “the 1984 Act” means the Police and Criminal Evidence Act 1984 (c. 60).

(2)In section 1(8) of the 1984 Act (offences for purpose of definition of prohibited article), at the end of paragraph (d) there is inserted ; and

(e)offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property).

2Warrants to enter and searchE+W

In section 16 of the 1984 Act (execution of warrants), after subsection (2) there is inserted—

(2A)A person so authorised has the same powers as the constable whom he accompanies in respect of—

(a)the execution of the warrant, and

(b)the seizure of anything to which the warrant relates.

(2B)But he may exercise those powers only in the company, and under the supervision, of a constable.

3Arrestable offencesE+W

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4Bail elsewhere than at police stationE+W

(1)Section 30 of the 1984 Act (arrest elsewhere than at police station) is amended as follows.

(2)For subsection (1) there is substituted—

(1)Subsection (1A) applies where a person is, at any place other than a police station—

(a)arrested by a constable for an offence, or

(b)taken into custody by a constable after being arrested for an offence by a person other than a constable.

(1A)The person must be taken by a constable to a police station as soon as practicable after the arrest.

(1B)Subsection (1A) has effect subject to section 30A (release on bail) and subsection (7) (release without bail).

(3)In subsection (2) for “subsection (1)” there is substituted “ subsection (1A) ”.

(4)For subsection (7) there is substituted—

(7)A person arrested by a constable at any place other than a police station must be released without bail if the condition in subsection (7A) is satisfied.

(7A)The condition is that, at any time before the person arrested reaches a police station, a constable is satisfied that there are no grounds for keeping him under arrest or releasing him on bail under section 30A.

(5)For subsections (10) and (11) there is substituted—

(10)Nothing in subsection (1A) or in section 30A prevents a constable delaying taking a person to a police station or releasing him on bail if the condition in subsection (10A) is satisfied.

(10A)The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.

(11)Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released on bail.

(6)In subsection (12) for “subsection (1)” there is substituted “ subsection (1A) or section 30A ”.

(7)After section 30 there is inserted—

30ABail elsewhere than at police station

(1)A constable may release on bail a person who is arrested or taken into custody in the circumstances mentioned in section 30(1).

(2)A person may be released on bail under subsection (1) at any time before he arrives at a police station.

(3)A person released on bail under subsection (1) must be required to attend a police station.

(4)No other requirement may be imposed on the person as a condition of bail.

(5)The police station which the person is required to attend may be any police station.

30BBail under section 30A: notices

(1)Where a constable grants bail to a person under section 30A, he must give that person a notice in writing before he is released.

(2)The notice must state—

(a)the offence for which he was arrested, and

(b)the ground on which he was arrested.

(3)The notice must inform him that he is required to attend a police station.

(4)It may also specify the police station which he is required to attend and the time when he is required to attend.

(5)If the notice does not include the information mentioned in subsection (4), the person must subsequently be given a further notice in writing which contains that information.

(6)The person may be required to attend a different police station from that specified in the notice under subsection (1) or (5) or to attend at a different time.

(7)He must be given notice in writing of any such change as is mentioned in subsection (6) but more than one such notice may be given to him.

30CBail under section 30A: supplemental

(1)A person who has been required to attend a police station is not required to do so if he is given notice in writing that his attendance is no longer required.

(2)If a person is required to attend a police station which is not a designated police station he must be—

(a)released, or

(b)taken to a designated police station,

not more than six hours after his arrival.

(3)Nothing in the Bail Act 1976 applies in relation to bail under section 30A.

(4)Nothing in section 30A or 30B or in this section prevents the re-arrest without a warrant of a person released on bail under section 30A if new evidence justifying a further arrest has come to light since his release.

30DFailure to answer to bail under section 30A

(1)A constable may arrest without a warrant a person who—

(a)has been released on bail under section 30A subject to a requirement to attend a specified police station, but

(b)fails to attend the police station at the specified time.

(2)A person arrested under subsection (1) must be taken to a police station (which may be the specified police station or any other police station) as soon as practicable after the arrest.

(3)In subsection (1), “specified” means specified in a notice under subsection (1) or (5) of section 30B or, if notice of change has been given under subsection (7) of that section, in that notice.

(4)For the purposes of—

(a)section 30 (subject to the obligation in subsection (2)), and

(b)section 31,

an arrest under this section is to be treated as an arrest for an offence.

5Drug testing for under-eighteensE+W

(1)The 1984 Act is amended as follows.

(2)In section 38 (duties of custody officer after charge)—

(a)in subsection (1)—

(i)for sub-paragraph (iiia) of paragraph (a) there is substituted—

(iiia)except in a case where (by virtue of subsection (9) of section 63B below) that section does not apply, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable a sample to be taken from him under that section;,

(ii)in sub-paragraph (i) of paragraph (b), after “satisfied” there is inserted “ (but, in the case of paragraph (a)(iiia) above, only if the arrested juvenile has attained the minimum age) ”,

(b)in subsection (6A), after the definition of “local authority accommodation” there is inserted—

minimum age” means the age specified in section 63B(3) below;.

(3)In section 63B (testing for presence of Class A drugs)—

(a)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)after subsection (5) there is inserted—

(5A)In the case of a person who has not attained the age of 17—

(a)the making of the request under subsection (4) above;

(b)the giving of the warning and (where applicable) the information under subsection (5) above; and

(c)the taking of the sample,

may not take place except in the presence of an appropriate adult.,

(c)after subsection (6) there is inserted—

(6A)The Secretary of State may by order made by statutory instrument amend subsection (3) above by substituting for the age for the time being specified a different age specified in the order.

(6B)A statutory instrument containing an order under subsection (6A) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.,

(d)after subsection (8) there is inserted—

(9)In relation to a person who has not attained the age of 18, this section applies only where—

(a)the relevant chief officer has been notified by the Secretary of State that arrangements for the taking of samples under this section from persons who have not attained the age of 18 have been made for the police area as a whole, or for the particular police station, in which the person is in police detention; and

(b)the notice has not been withdrawn.

(10)In this section—

appropriate adult”, in relation to a person who has not attained the age of 17, means—

(a)his parent or guardian or, if he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or

(b)a social worker of a local authority social services department; or

(c)if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police;

relevant chief officer” means—

(a)in relation to a police area, the chief officer of police of the police force for that police area; or

(b)in relation to a police station, the chief officer of police of the police force for the police area in which the police station is situated.

Annotations:

Amendments (Textual)

Commencement Information

I1S. 5 wholly in force at 1.12.2005; s. 5 not in force at Royal Assent, see s. 336(3); s. 5 in force for certain purposes at 1.8.2004 by S.I. 2004/1867, art. 2; s. 5 in force in so far as not already in force at 1.12.2005 by S.I. 2005/3055, art. 2

6Use of telephones for review of police detentionE+W

For section 40A(1) and (2) of the 1984 Act (use of telephone for review under s.40) there is substituted—

(1)A review under section 40(1)(b) may be carried out by means of a discussion, conducted by telephone, with one or more persons at the police station where the arrested person is held.

(2)But subsection (1) does not apply if—

(a)the review is of a kind authorised by regulations under section 45A to be carried out using video-conferencing facilities; and

(b)it is reasonably practicable to carry it out in accordance with those regulations.

7Limits on period of detention without chargeE+W

In section 42(1) of the 1984 Act (conditions to be satisfied before detention without charge may be extended from 24 to 36 hours), for paragraph (b) there is substituted—

(b)an offence for which he is under arrest is an arrestable offence; and.

8Property of detained personsE+W

(1)In subsection (1) of section 54 of the 1984 Act (which requires the custody officer at a police station to ascertain and record everything which a detained person has with him), there is omitted “and record or cause to be recorded”.

(2)For subsection (2) of that section (record of arrested person to be made as part of custody record) there is substituted—

(2)The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection (1).

(2A)In the case of an arrested person, any such record may be made as part of his custody record.

9Taking fingerprints without consentE+W

(1)Section 61 of the 1984 Act (fingerprinting) is amended as follows.

(2)For subsections (3) and (4) (taking of fingerprints without appropriate consent) there is substituted—

(3)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a)he is detained in consequence of his arrest for a recordable offence; and

(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police.

(4)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a)he has been charged with a recordable offence or informed that he will be reported for such an offence; and

(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police.

(3)In subsection (3A) (disregard of incomplete or unsatisfactory fingerprints) for the words from the beginning to “subsection (3) above” there is substituted “ Where a person mentioned in paragraph (a) of subsection (3) or (4) has already had his fingerprints taken in the course of the investigation of the offence by the police ”.

(4)In subsection (5) (authorisation to be given or confirmed in writing) for “subsection (3)(a) or (4A)” there is substituted “ subsection (4A) ”.

(5)In subsection (7) (reasons for taking of fingerprints without consent) for “subsection (3) or (6)” there is substituted “ subsection (3), (4) or (6) ”.

Annotations:

Commencement Information

I2S. 9 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

10Taking non-intimate samples without consentE+W

(1)Section 63 of the 1984 Act (other samples) is amended as follows.

(2)After subsection (2) (consent to be given in writing) there is inserted—

(2A)A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.

(2B)The first is that the person is in police detention in consequence of his arrest for a recordable offence.

(2C)The second is that—

(a)he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or

(b)he has had such a sample taken but it proved insufficient.

(3)In subsection (3)(a) (taking of samples without appropriate consent) the words “is in police detention or” are omitted.

(4)In subsection (3A) (taking of samples without appropriate consent after charge) for “(whether or not he falls within subsection (3)(a) above)” there is substituted “ (whether or not he is in police detention or held in custody by the police on the authority of a court) ”.

(5)In subsection (8A) (reasons for taking of samples without consent) for “subsection (3A)” there is substituted “ subsection (2A), (3A) ”.

Annotations:

Commencement Information

I3S. 10 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

11Codes of practiceE+W

(1)In section 67 of the 1984 Act (supplementary provisions about codes), for subsections (1) to (7C) there is substituted—

(1)In this section, “code” means a code of practice under section 60, 60A or 66.

(2)The Secretary of State may at any time revise the whole or any part of a code.

(3)A code may be made, or revised, so as to—

(a)apply only in relation to one or more specified areas,

(b)have effect only for a specified period,

(c)apply only in relation to specified offences or descriptions of offender.

(4)Before issuing a code, or any revision of a code, the Secretary of State must consult—

(a)persons whom he considers to represent the interests of police authorities,

(b)persons whom he considers to represent the interests of chief officers of police,

(c)the General Council of the Bar,

(d)the Law Society of England and Wales,

(e)the Institute of Legal Executives, and

(f)such other persons as he thinks fit.

(5)A code, or a revision of a code, does not come into operation until the Secretary of State by order so provides.

(6)The power conferred by subsection (5) is exercisable by statutory instrument.

(7)An order bringing a code into operation may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(7A)An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.

(7B)When an order or draft of an order is laid, the code or revision of a code to which it relates must also be laid.

(7C)No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.

(7D)An order bringing a code, or a revision of a code, into operation may include transitional or saving provisions.

(2)Section 113 of the 1984 Act (application of Act to armed forces) is amended as follows.

(3)After subsection (3) there is inserted—

(3A)In subsections (4) to (10), “code” means a code of practice under subsection (3).

(4)For subsections (5) to (7) there is substituted—

(5)The Secretary of State may at any time revise the whole or any part of a code.

(6)A code may be made, or revised, so as to—

(a)apply only in relation to one or more specified areas,

(b)have effect only for a specified period,

(c)apply only in relation to specified offences or descriptions of offender.

(7)The Secretary of State must lay a code, or any revision of a code, before Parliament.

12Amendments related to Part 1E+W

Schedule 1 (which makes amendments related to the provisions of this Part) has effect.

Part 2 E+WBail

13Grant and conditions of bailE+W

(1)In section 3(6) of the 1976 Act (which sets out cases where bail conditions may be imposed)—

(a)the words “to secure that” are omitted,

(b)the words “to secure that” are inserted at the beginning of each of paragraphs (a) to (e),

(c)after paragraph (c) there is inserted—

(ca)for his own protection or, if he is a child or young person, for his own welfare or in his own interests,,

(d)for “or (c)” there is substituted “ , (c) or (ca) ”.

(2)In section 3A(5) of the 1976 Act (no conditions may be imposed under section 3(4), (5), (6) or (7) unless necessary for certain purposes)—

(a)the words “for the purpose of preventing that person from” are omitted,

(b)the words “for the purpose of preventing that person from” are inserted at the beginning of each of paragraphs (a) to (c),

(c)after paragraph (c) there is inserted or

(d)for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.

(3)In paragraph 8(1) of Part 1 of Schedule 1 to the 1976 Act (no conditions may be imposed under section 3(4) to (7) unless necessary to do so for certain purposes) for the words from “that it is necessary to do so” onwards there is substituted that it is necessary to do so—

(a)for the purpose of preventing the occurrence of any of the events mentioned in paragraph 2(1) of this Part of this Schedule, or

(b)for the defendant’s own protection or, if he is a child or young person, for his own welfare or in his own interests.

(4)For paragraph 5 of Part 2 of that Schedule (defendant need not be granted bail if having been released on bail he has been arrested in pursuance of section 7) there is substituted—

The defendant need not be granted bail if—

(a)having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act; and

(b)the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person).

Annotations:

Commencement Information

I4S. 13 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

14Offences committed on bailE+W

(1)For paragraph 2A of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail where he was on bail on date of offence) there is substituted—

2A(1)If the defendant falls within this paragraph he may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not).

(2)The defendant falls within this paragraph if—

(a)he is aged 18 or over, and

(b)it appears to the court that he was on bail in criminal proceedings on the date of the offence.

(2)After paragraph 9 of that Part there is inserted—

9AA(1)This paragraph applies if—

(a)the defendant is under the age of 18, and

(b)it appears to the court that he was on bail in criminal proceedings on the date of the offence.

(2)In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the court shall give particular weight to the fact that the defendant was on bail in criminal proceedings on the date of the offence.

Annotations:

Commencement Information

I5S. 14 partly in force; s. 14 not in force at Royal Assent, see s. 336(3); s. 14 in force for certain purposes at 1.1.2007 by S.I. 2006/3217, art. 2 (subject to art. 3)

15 Absconding by persons released on bailE+W

(1)For paragraph 6 of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail if having been released on bail he has been arrested in pursuance of section 7) there is substituted—

6(1)If the defendant falls within this paragraph, he may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail (whether subject to conditions or not), he would fail to surrender to custody.

(2)Subject to sub-paragraph (3) below, the defendant falls within this paragraph if—

(a)he is aged 18 or over, and

(b)it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody.

(3)Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(4)For the purposes of sub-paragraph (3) above, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.

(2)After paragraph 9AA of that Part (inserted by section 14(2)) there is inserted—

9AB(1)Subject to sub-paragraph (2) below, this paragraph applies if—

(a)the defendant is under the age of 18, and

(b)it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody.

(2)Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, this paragraph does not apply unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(3)In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, the court shall give particular weight to—

(a)where the defendant did not have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody, or

(b)where he did have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(4)For the purposes of this paragraph, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.

(3)In section 6 of the 1976 Act (offence of absconding by person released on bail) after subsection (9) there is inserted—

(10)Section 127 of the Magistrates' Courts Act 1980 shall not apply in relation to an offence under subsection (1) or (2) above.

(11)Where a person has been released on bail in criminal proceedings and that bail was granted by a constable, a magistrates' court shall not try that person for an offence under subsection (1) or (2) above in relation to that bail (the “relevant offence”) unless either or both of subsections (12) and (13) below applies.

(12)This subsection applies if an information is laid for the relevant offence within 6 months from the time of the commission of the relevant offence.

(13)This subsection applies if an information is laid for the relevant offence no later than 3 months from the time of the occurrence of the first of the events mentioned in subsection (14) below to occur after the commission of the relevant offence.

(14)Those events are—

(a)the person surrenders to custody at the appointed place;

(b)the person is arrested, or attends at a police station, in connection with the relevant offence or the offence for which he was granted bail;

(c)the person appears or is brought before a court in connection with the relevant offence or the offence for which he was granted bail.

Annotations:

Commencement Information

I6S. 15 partly in force; s. 15 not in force at Royal Assent, see s. 336(3); s. 15(3) in force at 5.4.2004 by S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6)); s. 15(1)(2) in force for certain purposes at 1.1.2007 by S.I. 2006/3217, art. 2 (subject to art. 3)

16Appeal to Crown CourtE+W

(1)This section applies where a magistrates' court grants bail to a person (“the person concerned”) on adjourning a case under—

(a)section 10 of the Magistrates' Courts Act 1980 (c. 43) (adjournment of trial),

(b)section 17C of that Act (intention as to plea: adjournment),

(c)section 18 of that Act (initial procedure on information against adult for offence triable either way),

(d)section 24C of that Act (intention as to plea by child or young person: adjournment),

(e)section 52(5) of the Crime and Disorder Act 1998 (c. 37) (adjournment of proceedings under section 51 etc), or

(f)section 11 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (remand for medical examination).

(2)Subject to the following provisions of this section, the person concerned may appeal to the Crown Court against any condition of bail falling within subsection (3).

(3)A condition of bail falls within this subsection if it is a requirement—

(a)that the person concerned resides away from a particular place or area,

(b)that the person concerned resides at a particular place other than a bail hostel,

(c)for the provision of a surety or sureties or the giving of a security,

(d)that the person concerned remains indoors between certain hours,

(e)imposed under section 3(6ZAA) of the 1976 Act (requirements with respect to electronic monitoring), or

(f)that the person concerned makes no contact with another person.

(4)An appeal under this section may not be brought unless subsection (5) or (6) applies.

(5)This subsection applies if an application to the magistrates' court under section 3(8)(a) of the 1976 Act (application by or on behalf of person granted bail) was made and determined before the appeal was brought.

(6)This subsection applies if an application to the magistrates' court—

(a)under section 3(8)(b) of the 1976 Act (application by constable or prosecutor), or

(b)under section 5B(1) of that Act (application by prosecutor),

was made and determined before the appeal was brought.

(7)On an appeal under this section the Crown Court may vary the conditions of bail.

(8)Where the Crown Court determines an appeal under this section, the person concerned may not bring any further appeal under this section in respect of the conditions of bail unless an application or a further application to the magistrates' court under section 3(8)(a) of the 1976 Act is made and determined after the appeal.

Annotations:

Commencement Information

I7S. 16 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

17Appeals to High CourtE+W

(1)In section 22(1) of the Criminal Justice Act 1967 (c. 80) (extension of power of High Court to grant, or vary conditions of, bail)—

(a)after “Where” there is inserted “ (a) ”, and

(b)after “proceedings,”, in the second place where it occurs, there is inserted and

(b)it does so where an application to the court to state a case for the opinion of the High Court is made,.

(2)The inherent power of the High Court to entertain an application in relation to bail where a magistrates' court—

(a)has granted or withheld bail, or

(b)has varied the conditions of bail,

is abolished.

(3)The inherent power of the High Court to entertain an application in relation to bail where the Crown Court has determined—

(a)an application under section 3(8) of the 1976 Act, or

(b)an application under section 81(1)(a), (b), (c) or (g) of the Supreme Court Act 1981 (c. 54),

is abolished.

(4)The High Court is to have no power to entertain an application in relation to bail where the Crown Court has determined an appeal under section 16 of this Act.

(5)The High Court is to have no power to entertain an application in relation to bail where the Crown Court has granted or withheld bail under section 88 or 89 of this Act.

(6)Nothing in this section affects—

(a)any other power of the High Court to grant or withhold bail or to vary the conditions of bail, or

(b)any right of a person to apply for a writ of habeas corpus or any other prerogative remedy.

(7)Any reference in this section to an application in relation to bail is to be read as including—

(a)an application for bail to be granted,

(b)an application for bail to be withheld,

(c)an application for the conditions of bail to be varied.

(8)Any reference in this section to the withholding of bail is to be read as including a reference to the revocation of bail.

Annotations:

Commencement Information

I8S. 17 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

18Appeal by prosecutionE+W

(1)Section 1 of the Bail (Amendment) Act 1993 (c. 26) (prosecution right of appeal) is amended as follows.

(2)For subsection (1) (prosecution may appeal to Crown Court judge against bail in case of offence punishable by imprisonment for five years or more etc) there is substituted—

(1)Where a magistrates' court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail.

(3)In subsection (10)(a) for “punishable by a term of imprisonment” there is substituted “ punishable by imprisonment ”.

Annotations:

Commencement Information

I9S. 18 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 1 (subject to art. 2(2), Sch. 2)

19Drug users: restriction on bailE+W

(1)The 1976 Act is amended as follows.

(2)In section 3 (general provisions), after subsection (6B) there is inserted—

(6C)Subsection (6D) below applies where—

(a)the court has been notified by the Secretary of State that arrangements for conducting a relevant assessment or, as the case may be, providing relevant follow-up have been made for the petty sessions area in which it appears to the court that the person referred to in subsection (6D) would reside if granted bail; and

(b)the notice has not been withdrawn.

(6D)In the case of a person (“P”)—

(a)in relation to whom paragraphs (a) to (c) of paragraph 6B(1) of Part 1 of Schedule 1 to this Act apply;

(b)who, after analysis of the sample referred to in paragraph (b) of that paragraph, has been offered a relevant assessment or, if a relevant assessment has been carried out, has had relevant follow-up proposed to him; and

(c)who has agreed to undergo the relevant assessment or, as the case may be, to participate in the relevant follow-up,

the court, if it grants bail, shall impose as a condition of bail that P both undergo the relevant assessment and participate in any relevant follow-up proposed to him or, if a relevant assessment has been carried out, that P participate in the relevant follow-up.

(6E)In subsections (6C) and (6D) above—

(a)relevant assessment” means an assessment conducted by a suitably qualified person of whether P is dependent upon or has a propensity to misuse any specified Class A drugs;

(b)relevant follow-up” means, in a case where the person who conducted the relevant assessment believes P to have such a dependency or propensity, such further assessment, and such assistance or treatment (or both) in connection with the dependency or propensity, as the person who conducted the relevant assessment (or conducts any later assessment) considers to be appropriate in P’s case,

and in paragraph (a) above “Class A drug” and “misuse” have the same meaning as in the Misuse of Drugs Act 1971, and “specified” (in relation to a Class A drug) has the same meaning as in Part 3 of the Criminal Justice and Court Services Act 2000.

(6F)In subsection (6E)(a) above, “suitably qualified person” means a person who has such qualifications or experience as are from time to time specified by the Secretary of State for the purposes of this subsection.

(3)In section 3A(3) (conditions of bail in case of police bail), for “, (6A) and (6B)” there is substituted “ and (6A) to (6F) ”.

(4)In Schedule 1 (which contains supplementary provisions about bail), in Part 1 (imprisonable offences)—

(a)after paragraph 6 there is inserted—

6AException applicable to drug users in certain areas

Subject to paragraph 6C below, a defendant who falls within paragraph 6B below may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not).

6BException applicable to drug users in certain areas

(1)A defendant falls within this paragraph if—

(a)he is aged 18 or over;

(b)a sample taken—

(i)under section 63B of the Police and Criminal Evidence Act 1984 (testing for presence of Class A drugs) in connection with the offence; or

(ii)under section 161 of the Criminal Justice Act 2003 (drug testing after conviction of an offence but before sentence),

has revealed the presence in his body of a specified Class A drug;

(c)either the offence is one under section 5(2) or (3) of the Misuse of Drugs Act 1971 and relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing—

(i)that misuse by him of any specified Class A drug caused or contributed to the offence; or

(ii)(even if it did not) that the offence was motivated wholly or partly by his intended misuse of such a drug; and

(d)the condition set out in sub-paragraph (2) below is satisfied or (if the court is considering on a second or subsequent occasion whether or not to grant bail) has been, and continues to be, satisfied.

(2)The condition referred to is that after the taking and analysis of the sample—

(a)a relevant assessment has been offered to the defendant but he does not agree to undergo it; or

(b)he has undergone a relevant assessment, and relevant follow-up has been proposed to him, but he does not agree to participate in it.

(3)In this paragraph and paragraph 6C below—

(a)Class A drug” and “misuse” have the same meaning as in the Misuse of Drugs Act 1971;

(b)relevant assessment” and “relevant follow-up” have the meaning given by section 3(6E) of this Act;

(c)specified” (in relation to a Class A drug) has the same meaning as in Part 3 of the Criminal Justice and Court Services Act 2000.

6CException applicable to drug users in certain areas

Paragraph 6A above does not apply unless—

(a)the court has been notified by the Secretary of State that arrangements for conducting a relevant assessment or, as the case may be, providing relevant follow-up have been made for the petty sessions area in which it appears to the court that the defendant would reside if granted bail; and

(b)the notice has not been withdrawn.,

(b)in paragraph 8(1), for “(4) to (7)” there is substituted “ (4) to (6B) or (7) ”.

Annotations:

Commencement Information

I10S. 19 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

20Supplementary amendments to the Bail Act 1976E+W

(1)In Part 1 of Schedule 1 to the 1976 Act (supplementary provisions relating to bail of defendant accused or convicted of imprisonable offence) the existing text of paragraph 2 is to be sub-paragraph (1) of that paragraph, and after that sub-paragraph (as so re-numbered) there is inserted—

(2)Where the defendant falls within one or more of paragraphs 2A, 6 and 6B of this Part of this Schedule, this paragraph shall not apply unless—

(a)where the defendant falls within paragraph 2A, the court is satisfied as mentioned in sub-paragraph (1) of that paragraph;

(b)where the defendant falls within paragraph 6, the court is satisfied as mentioned in sub-paragraph (1) of that paragraph;

(c)where the defendant falls within paragraph 6B, the court is satisfied as mentioned in paragraph 6A of this Part of this Schedule or paragraph 6A does not apply by virtue of paragraph 6C of this Part of this Schedule.

(2)In paragraph 9 of that Part (matters to be taken into account in making decisions under paragraph 2 or 2A of that Part) for “2 or 2A” there is substituted “ 2(1), or in deciding whether it is satisfied as mentioned in paragraph 2A(1), 6(1) or 6A, ”.

Annotations:

Commencement Information

I11S. 20 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

21Interpretation of Part 2E+W

In this Part—

  • bail” means bail in criminal proceedings (within the meaning of the 1976 Act),

  • bail hostel” has the meaning given by section 2(2) of the 1976 Act,

  • the 1976 Act” means the Bail Act 1976 (c. 63),

  • vary” has the same meaning as in the 1976 Act.

Annotations:

Commencement Information

I12S. 21 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

Part 3 E+WConditional cautions

22Conditional cautionsE+W

(1)An authorised person may give a conditional caution to a person aged 18 or over (“the offender”) if each of the five requirements in section 23 is satisfied.

(2)In this Part “conditional caution” means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.

[F3(3)The conditions which may be attached to such a caution are those which have one or more of the following objects—

(a)facilitating the rehabilitation of the offender;

(b)ensuring that the offender makes reparation for the offence;

(c)punishing the offender.]

[F4(3A)The conditions which may be attached to a conditional caution include—

(a)(subject to section 23A) a condition that the offender pay a financial penalty;

(b)a condition that the offender attend at a specified place at specified times.

Specified” means specified by a relevant prosecutor.

(3B)Conditions attached by virtue of subsection (3A)(b) may not require the offender to attend for more than 20 hours in total, not including any attendance required by conditions attached for the purpose of facilitating the offender's rehabilitation.

(3C)The Secretary of State may by order amend subsection (3B) by substituting a different figure.]

(4)In this Part “authorised person” means—

(a)a constable,

(b)an investigating officer, or

(c)a person authorised by a relevant prosecutor for the purposes of this section.

Annotations:

Amendments (Textual)

F3S. 22(3) substituted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes, otherwise prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(2), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

F4S. 22(3A)-(3C) inserted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes, otherwise prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(3), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

23The five requirementsE+W

(1)The first requirement is that the authorised person has evidence that the offender has committed an offence.

(2)The second requirement is that a relevant prosecutor decides—

(a)that there is sufficient evidence to charge the offender with the offence, and

(b)that a conditional caution should be given to the offender in respect of the offence.

(3)The third requirement is that the offender admits to the authorised person that he committed the offence.

(4)The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.

(5)The fifth requirement is that the offender signs a document which contains—

(a)details of the offence,

(b)an admission by him that he committed the offence,

(c)his consent to being given the conditional caution, and

(d)the conditions attached to the caution.

[F523AFinancial penaltiesE+W
Annotations:

Amendments (Textual)

F5S. 23A inserted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes, otherwise prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(4), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

(1)A condition that the offender pay a financial penalty (a “financial penalty condition”) may not be attached to a conditional caution given in respect of an offence unless the offence is one that is prescribed, or of a description prescribed, in an order made by the Secretary of State.

(2)An order under subsection (1) must prescribe, in respect of each offence or description of offence in the order, the maximum amount of the penalty that may be specified under subsection (5)(a).

(3)The amount that may be prescribed in respect of any offence must not exceed—

(a)one quarter of the amount of the maximum fine for which a person is liable on summary conviction of the offence, or

(b)£250,

whichever is the lower.

(4)The Secretary of State may by order amend subsection (3) by—

(a)substituting a different fraction in paragraph (a);

(b)substituting a different figure in paragraph (b).

(5)Where a financial penalty condition is attached to a conditional caution, a relevant prosecutor must also specify—

(a)the amount of the penalty,

[F6(b)the person to whom the financial penalty is to be paid and how it may be paid.]

(6)To comply with the condition, the offender must pay the penalty [F7in accordance with the provision specified under subsection (5)(b).] .

[F8(6A)Where a financial penalty is (in accordance with the provision specified under subsection (5)(b)) paid to a person other than a designated officer for a local justice area, the person to whom it is paid must give the payment to such an officer.]

(7)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Annotations:

Amendments (Textual)

F6S. 23A(5)(b) substituted (8.7.2009 for certain purposes, otherwise prosp.) for s. 23A(5)(b)(c) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 60(2); S.I. 2009/1678, art. 3(b)(ii)

F7Words in s. 23A(6) substituted (8.7.2009 for certain purposes, otherwise prosp.) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 60(3); S.I. 2009/1678, art. 3(b)(ii)

[F1023BVariation of conditionsE+W

A relevant prosecutor may, with the consent of the offender, vary the conditions attached to a conditional caution by—

(a)modifying or omitting any of the conditions;

(b)adding a condition.]

24Failure to comply with conditionsE+W

(1)If the offender fails, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, criminal proceedings may be instituted against the person for the offence in question.

(2)The document mentioned in section 23(5) is to be admissible in such proceedings.

(3)Where such proceedings are instituted, the conditional caution is to cease to have effect.

[F1124AArrest for failure to complyE+W
Annotations:

Amendments (Textual)

(1)If a constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, he may arrest him without warrant.

(2)A person arrested under this section must be—

(a)charged with the offence in question,

(b)released without charge and on bail to enable a decision to be made as to whether he should be charged with the offence, or

(c)released without charge and without bail (with or without any variation in the conditions attached to the caution).

(3)Subsection (2) also applies in the case of—

(a)a person who, having been released on bail under subsection (2)(b), returns to a police station to answer bail or is otherwise in police detention at a police station;

(b)a person who, having been released on bail under section 30A of the 1984 Act (bail elsewhere than at police station) as applied by section 24B below, attends at a police station to answer bail or is otherwise in police detention at a police station;

(c)a person who is arrested under section 30D or 46A of the 1984 Act (power of arrest for failure to answer to police bail) as applied by section 24B below.

(4)Where a person is released under subsection (2)(b), the custody officer must inform him that he is being released to enable a decision to be made as to whether he should be charged with the offence in question.

(5)A person arrested under this section, or any other person in whose case subsection (2) applies, may be kept in police detention—

(a)to enable him to be dealt with in accordance with that subsection, or

(b)where applicable, to enable the power under section 37D(1) of the 1984 Act (power of custody officer to appoint a different or additional time for answering to police bail), as applied by section 24B below, to be exercised.

If the person is not in a fit state to enable him to be so dealt with, or to enable that power to be exercised, he may be kept in police detention until he is.

(6)The power under subsection (5)(a) includes power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution.

(7)Subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest.

(8)Subsection (2) does not require a person who—

(a)falls within subsection (3)(a) or (b), and

(b)is in police detention in relation to a matter other than the conditional caution,

to be released if he is liable to be kept in detention in relation to that other matter.

(9)In this Part—

  • the 1984 Act” means the Police and Criminal Evidence Act 1984;

  • police detention” has the same meaning as in the 1984 Act (see section 118(2) of that Act).

24BApplication of PACE provisionsE+W

(1)In the case of a person arrested under section 24A, the provisions of the 1984 Act specified in subsection (2) apply, with the modifications specified in subsection (3) and with such further modifications as are necessary, as they apply in the case of a person arrested for an offence.

(2)The provisions are—

(a)section 30 (arrest elsewhere than at police station);

(b)sections 30A to 30D (bail elsewhere than at police station);

(c)section 31 (arrest for further offence);

(d)section 34(1) to (5) (limitations on police detention);

(e)section 36 (custody officers at police stations);

(f)section 37(4) to (6) (record of grounds for detention);

(g)section 38 (duties of custody officer after charge);

(h)section 39 (responsibilities in relation to persons detained);

(i)section 55A (x-rays and ultrasound scans).

(3)The modifications are—

(a)in section 30CA(5)(a), for the reference to being involved in the investigation of the offence mentioned in that provision substitute a reference to being involved—

(i)in the investigation of the offence in respect of which the person was given the conditional caution, or

(ii)in investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution;

(b)in section 36(5) and (7), for the references to being involved in the investigation of an offence for which the person is in police detention substitute references to being involved—

(i)in the investigation of the offence in respect of which the person was given the conditional caution, or

(ii)in investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution;

(c)in section 38(1)(a)(iii) and (iv), for “arrested for” substitute “charged with”;

(d)in section 39(2) and (3), for the references to an offence substitute references to a failure to comply with conditions attached to the conditional caution.

(4)Section 40 of the 1984 Act (review of police detention) applies to a person in police detention by virtue of section 24A above as it applies to a person in police detention in connection with the investigation of an offence, but with the following modifications—

(a)omit subsections (8) and (8A);

(b)in subsection (9), for the reference to section 37(9) or 37D(5) substitute a reference to the second sentence of section 24A(5) above.

(5)The following provisions of the 1984 Act apply to a person released on bail under section 24A(2)(b) above as they apply to a person released on bail under section 37 of that Act—

(a)section 37D(1) to (3) (power of custody officer to appoint a different or additional time for answering to police bail);

(b)section 46A (power of arrest for failure to answer to police bail);

(c)section 47 (bail after arrest).

(6)Section 54 of the 1984 Act (searches of detained persons) applies in the case of a person who falls within subsection (3) of section 24A above and is detained in a police station under that section as it applies in the case of a person who falls within section 34(7) of that Act and is detained at a police station under section 37.

(7)Section 54A of the 1984 Act (searches and examination to ascertain identity) applies with the following modifications in the case of a person who is detained in a police station under section 24A above—

(a)in subsections (1)(a) and (12), after “as a person involved in the commission of an offence” insert “or as having failed to comply with any of the conditions attached to his conditional caution”;

(b)in subsection (9)(a), after “the investigation of an offence” insert “, the investigation of whether the person in question has failed to comply with any of the conditions attached to his conditional caution”.]

Annotations:

Modifications etc. (not altering text)

25Code of practiceE+W

(1)The Secretary of State must prepare a code of practice in relation to conditional cautions.

(2)The code may, in particular, include provision as to—

(a)the circumstances in which conditional cautions may be given,

(b)the procedure to be followed in connection with the giving of such cautions,

(c)the conditions which may be attached to such cautions and the time for which they may have effect,

(d)the category of constable or investigating officer by whom such cautions may be given,

(e)the persons who may be authorised by a relevant prosecutor for the purposes of section 22,

(f)the form which such cautions are to take and the manner in which they are to be given and recorded,

(g)the places where such cautions may be given, F12. . .

[F13(ga)the provision which may be made by a relevant prosecutor under section 23A(5)(b),]

(h)the monitoring of compliance with conditions attached to such cautions.

[F14(i)the exercise of the power of arrest conferred by section 24A(1), and

(j)who is to decide how a person should be dealt with under section 24A(2).]

(3)After preparing a draft of the code the Secretary of State—

(a)must publish the draft,

(b)must consider any representations made to him about the draft, and

(c)may amend the draft accordingly,

but he may not publish or amend the draft without the consent of the Attorney General.

(4)After the Secretary of State has proceeded under subsection (3) he must lay the code before each House of Parliament.

(5)When he has done so he may bring the code into force by order.

(6)The Secretary of State may from time to time revise a code of practice brought into force under this section.

(7)Subsections (3) to (6) are to apply (with appropriate modifications) to a revised code as they apply to an original code.

Annotations:

Amendments (Textual)

F12Word in s. 25(2) repealed (1.4.2007 and expressed to be in force 29.6.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 15 Pt. 2; S.I. 2007/709, art. 3(o)(t)(iii); S.I. 2007/1614, art. 2(j)

26Assistance of National Probation ServiceE+W

(1)Section 1 of the Criminal Justice and Court Services Act 2000 (c. 43) (purposes of Chapter 1) is amended as follows.

(2)After subsection (1) there is inserted—

(1A)This Chapter also has effect for the purposes of providing for—

(a)authorised persons to be given assistance in determining whether conditional cautions should be given and which conditions to attach to conditional cautions, and

(b)the supervision and rehabilitation of persons to whom conditional cautions are given.

(3)After subsection (3) there is inserted—

(4)In this section “authorised person” and “conditional caution” have the same meaning as in Part 3 of the Criminal Justice Act 2003.

27Interpretation of Part 3E+W

In this Part—

  • authorised person” has the meaning given by section 22(4),

  • conditional caution” has the meaning given by section 22(2),

  • investigating officer” means [F15an officer of Revenue and Customs, appointed in accordance with section 2(1) of the Commissioners for Revenue and Customs Act 2005, or] a person designated as an investigating officer under section 38 of the Police Reform Act 2002 (c. 30),

  • the offender” has the meaning given by section 22(1),

  • relevant prosecutor” means—

    (a)

    the Attorney General,

    (b)

    the Director of the Serious Fraud Office,

    (ba)

    [F16the Director of Revenue and Customs Prosecutions,]

    (c)

    the Director of Public Prosecutions,

    (d)

    a Secretary of State,

    (e)

    F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    (f)

    F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    (g)

    a person who is specified in an order made by the Secretary of State as being a relevant prosecutor for the purposes of this Part.

Annotations:

Amendments (Textual)

F15In s. 27 in definition of "investigating officer" words inserted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 50(6), 53, Sch. 4 para. 129(a); S.I. 2005/1126, art. 2(2)

F16In s. 27 in definition of "relevant prosecutor" item (ba) inserted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 50(6), 53, Sch. 4 para. 129(b); S.I. 2005/1126, art. 2(2)

F17In s. 27 in definition of "relevant prosecutor" items (e)(f) repealed (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 50(6), 52(2), 53, Sch. 4 para. 129(b), Sch. 5; S.I. 2005/1126, art. 2(2)

Commencement Information

I13S. 27 wholly in force; s. 27 not in force at Royal Assent, see s. 336(3); s. 27 in force for certain purposes at 3.7.2004 by S.I. 2004/1629, art. 2; s. 27 wholly in force at 16.11.2009 by S.I. 2009/2775, art. 2

Part 4 E+WCharging etc

28Charging or release of persons in police detentionE+W

Schedule 2 (which makes provision in relation to the charging or release of persons in police detention) shall have effect.

Annotations:

Commencement Information

I14S. 28 wholly in force at 1.10.2007; s. 28 not in force at Royal Assent, see s. 336(3); s. 28 in force for certain purposes at 29.1.2004 by S.I. 2004/81, art. 4; s. 28 in force for certain purposes at 3.7.2004 by S.I. 2004/1629, art. 2 and s. 28 in force for certain further purposes at 1.10.2007 by S.I. 2007/2874, art. 2(1)(2)(a)

29New method of instituting proceedingsE+W

(1)A public prosecutor may institute criminal proceedings against a person by issuing a document (a “written charge”) which charges the person with an offence.

(2)Where a public prosecutor issues a written charge, it must at the same time issue a document (a “requisition”) which requires the person to appear before a magistrates' court to answer the written charge.

(3)The written charge and requisition must be served on the person concerned, and a copy of both must be served on the court named in the requisition.

(4)In consequence of subsections (1) to (3), a public prosecutor is not to have the power to lay an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates' Courts Act 1980 (c. 43).

(5)In this section “public prosecutor” means—

(a)a police force or a person authorised by a police force to institute criminal proceedings,

(b)the Director of the Serious Fraud Office or a person authorised by him to institute criminal proceedings,

(c)the Director of Public Prosecutions or a person authorised by him to institute criminal proceedings,

[F18(ca)the Director of Revenue and Customs Prosecutions or a person authorised by him to institute criminal proceedings,]

[F19(cb)the Director General of the Serious Organised Crime Agency or a person authorised by him to institute criminal proceedings;]

(d)the Attorney General or a person authorised by him to institute criminal proceedings,

(e)a Secretary of State or a person authorised by a Secretary of State to institute criminal proceedings,

(f)the Commissioners of Inland Revenue or a person authorised by them to institute criminal proceedings,

(g)the Commissioners of Customs and Excise or a person authorised by them to institute criminal proceedings, or

(h)a person specified in an order made by the Secretary of State for the purposes of this section or a person authorised by such a person to institute criminal proceedings.

(6)In subsection (5) “police force” has the meaning given by section 3(3) of the Prosecution of Offences Act 1985 (c. 23).

Annotations:

Amendments (Textual)

Commencement Information

I15S. 29 partly in force; s. 29 not in force at Royal Assent, see s. 336(3); s. 29(1)-(3)(5)(6) in force for certain purposes at 25.7.2007 by S.I. 2007/1999, arts. 2, 3; s. 29(1) - (3)(5)(6) in force for certain purposes at 9.6.2008 by S.I. 2008/1424, arts. 2, 3; s. 29(1)-(3)(5)(6) in force for certain purposes at 1.11.2009 by S.I. 2009/2879, arts. 2, 3; s. 29(1)-(3)(5)(6) in force for certain purposes at 1.1.2011 by S.I. 2010/3005, art. 2

30Further provision about new methodE+W

(1)[F20Criminal Procedure Rules] may make—

(a)provision as to the form, content, recording, authentication and service of written charges or requisitions, and

(b)such other provision in relation to written charges or requisitions as appears to the [F21Criminal Procedure Rule Committee] to be necessary or expedient.

(2)Without limiting subsection (1), the provision which may be made by virtue of that subsection includes provision—

(a)which applies (with or without modifications), or which disapplies, the provision of any enactment relating to the service of documents,

(b)for or in connection with the issue of further requisitions.

(3)F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Nothing in section 29 affects—

(a)the power of a public prosecutor to lay an information for the purpose of obtaining the issue of a warrant under section 1 of the Magistrates' Courts Act 1980 (c. 43),

(b)the power of a person who is not a public prosecutor to lay an information for the purpose of obtaining the issue of a summons or warrant under section 1 of that Act, or

(c)any power to charge a person with an offence whilst he is in custody.

(5)Except where the context otherwise requires, in any enactment contained in an Act passed before this Act—

(a)any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c. 43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),

(b)any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a requisition (or to a public prosecutor issuing a requisition).

(6)Subsection (5) does not apply to section 1 of the Magistrates' Courts Act 1980.

(7)The reference in subsection (5) to an enactment contained in an Act passed before this Act includes a reference to an enactment contained in that Act as a result of an amendment to that Act made by this Act or by any other Act passed in the same Session as this Act.

(8)In this section “public prosecutor”, “requisition” and “written charge” have the same meaning as in section 29.

Annotations:

Amendments (Textual)

Commencement Information

I16S. 30 partly in force; s. 30 not in force at Royal Assent, see s. 336(3); s. 30 in force for certain purposes at 25.7.2007 by S.I. 2007/1999, arts. 2, 3; s. 30 in force for certain purposes at 9.6.2008 by S.I. 2008/1424, arts. 2, 3; s. 30 in force for certain purposes at 1.11.2009 by S.I. 2009/2879, art. 2, 3

31Removal of requirement to substantiate information on oathE+W

(1)In section 1(3) of the Magistrates' Courts Act 1980 (warrant may not be issued unless information substantiated on oath) the words “and substantiated on oath” are omitted.

(2)In section 13 of that Act (non-appearance of defendant: issue of warrant) in subsection (3)(a) the words “the information has been substantiated on oath and” are omitted.

(3)For subsection (3A)(a) of that section there is substituted—

(a)the offence to which the warrant relates is punishable, in the case of a person who has attained the age of 18, with imprisonment, or.

Part 5 E+W+N.I.Disclosure

32Initial duty of disclosure by prosecutorE+W+N.I.

In the Criminal Procedure and Investigations Act 1996 (c. 25) (in this Part referred to as “the 1996 Act”), in subsection (1)(a) of section 3 (primary disclosure by prosecutor)—

(a)for “in the prosecutor’s opinion might undermine” there is substituted “ might reasonably be considered capable of undermining ”;

(b)after “against the accused” there is inserted “ or of assisting the case for the accused ”.

Annotations:

Commencement Information

I17S. 32 wholly in force at 15.7.2005; s. 32 not in force at Royal Assent, see s. 336(3); s. 32 in force for E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 32 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

33Defence disclosureE+W+N.I.

(1)In section 5 of the 1996 Act (compulsory disclosure by accused), after subsection (5) there is inserted—

(5A)Where there are other accused in the proceedings and the court so orders, the accused must also give a defence statement to each other accused specified by the court.

(5B)The court may make an order under subsection (5A) either of its own motion or on the application of any party.

(5C)A defence statement that has to be given to the court and the prosecutor (under subsection (5)) must be given during the period which, by virtue of section 12, is the relevant period for this section.

(5D)A defence statement that has to be given to a co-accused (under subsection (5A)) must be given within such period as the court may specify.

(2)After section 6 of that Act there is inserted—

6AContents of defence statement

(1)For the purposes of this Part a defence statement is a written statement—

(a)setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,

(b)indicating the matters of fact on which he takes issue with the prosecution,

(c)setting out, in the case of each such matter, why he takes issue with the prosecution, and

(d)indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2)A defence statement that discloses an alibi must give particulars of it, including—

(a)the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b)any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

(3)For the purposes of this section evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

(4)The Secretary of State may by regulations make provision as to the details of the matters that, by virtue of subsection (1), are to be included in defence statements.

(3)After section 6A of that Act (inserted by subsection (2) above) there is inserted—

6BUpdated disclosure by accused

(1)Where the accused has, before the beginning of the relevant period for this section, given a defence statement under section 5 or 6, he must during that period give to the court and the prosecutor either—

(a)a defence statement under this section (an “updated defence statement”), or

(b)a statement of the kind mentioned in subsection (4).

(2)The relevant period for this section is determined under section 12.

(3)An updated defence statement must comply with the requirements imposed by or under section 6A by reference to the state of affairs at the time when the statement is given.

(4)Instead of an updated defence statement, the accused may give a written statement stating that he has no changes to make to the defence statement which was given under section 5 or 6.

(5)Where there are other accused in the proceedings and the court so orders, the accused must also give either an updated defence statement or a statement of the kind mentioned in subsection (4), within such period as may be specified by the court, to each other accused so specified.

(6)The court may make an order under subsection (5) either of its own motion or on the application of any party.

Annotations:

Commencement Information

I18S. 33 partly in force; s. 33 not in force at Royal Assent, see s. 336(3); s. 33(2) in force for E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 33(2) in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3)); s. 33(1) in force for certain purposes at 24.7.2006 by S.I. 2006/1835, art. 2

34Notification of intention to call defence witnessesE+W+N.I.

After section 6B of the 1996 Act (inserted by section 33 above) there is inserted—

6CNotification of intention to call defence witnesses

(1)The accused must give to the court and the prosecutor a notice indicating whether he intends to call any persons (other than himself) as witnesses at his trial and, if so—

(a)giving the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused when the notice is given;

(b)providing any information in the accused’s possession which might be of material assistance in identifying or finding any such proposed witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the notice is given.

(2)Details do not have to be given under this section to the extent that they have already been given under section 6A(2).

(3)The accused must give a notice under this section during the period which, by virtue of section 12, is the relevant period for this section.

(4)If, following the giving of a notice under this section, the accused—

(a)decides to call a person (other than himself) who is not included in the notice as a proposed witness, or decides not to call a person who is so included, or

(b)discovers any information which, under subsection (1), he would have had to include in the notice if he had been aware of it when giving the notice,

he must give an appropriately amended notice to the court and the prosecutor.

Annotations:

Commencement Information

I19S. 34 partly in force; s. 34 not in force at Royal Assent see s. 336(3); s. 34 in force for E.W. at 1.5.2010 by S.I. 2010/1183, art. 3 (with art. 4)

Prospective

35Notification of names of experts instructed by defendantE+W+N.I.

After section 6C of the 1996 Act (inserted by section 34 above) there is inserted—

6DNotification of names of experts instructed by accused

(1)If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused, he must give to the court and the prosecutor a notice specifying the person’s name and address.

(2)A notice does not have to be given under this section specifying the name and address of a person whose name and address have already been given under section 6C.

(3)A notice under this section must be given during the period which, by virtue of section 12, is the relevant period for this section.

36Further provisions about defence disclosureE+W+N.I.

After section 6D of the 1996 Act (inserted by section 35 above) there is inserted—

6EDisclosure by accused: further provisions

(1)Where an accused’s solicitor purports to give on behalf of the accused—

(a)a defence statement under section 5, 6 or 6B, or

(b)a statement of the kind mentioned in section 6B(4),

the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.

(2)If it appears to the judge at a pre-trial hearing that an accused has failed to comply fully with section 5, 6B or 6C, so that there is a possibility of comment being made or inferences drawn under section 11(5), he shall warn the accused accordingly.

(3)In subsection (2) “pre-trial hearing” has the same meaning as in Part 4 (see section 39).

(4)The judge in a trial before a judge and jury—

(a)may direct that the jury be given a copy of any defence statement, and

(b)if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible.

(5)A direction under subsection (4)—

(a)may be made either of the judge’s own motion or on the application of any party;

(b)may be made only if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.

(6)The reference in subsection (4) to a defence statement is a reference—

(a)where the accused has given only an initial defence statement (that is, a defence statement given under section 5 or 6), to that statement;

(b)where he has given both an initial defence statement and an updated defence statement (that is, a defence statement given under section 6B), to the updated defence statement;

(c)where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(4), to the initial defence statement.

Annotations:

Commencement Information

I20S. 36 wholly in force at 15.7.2005; s. 36 not in force at Royal Assent, see s. 336(3); s. 36 in force for E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 36 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

37Continuing duty of disclosure by prosecutorE+W+N.I.

Before section 8 of the 1996 Act there is inserted—

7AContinuing duty of prosecutor to disclose

(1)This section applies at all times—

(a)after the prosecutor has complied with section 3 or purported to comply with it, and

(b)before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.

(2)The prosecutor must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which—

(a)might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and

(b)has not been disclosed to the accused.

(3)If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable (or within the period mentioned in subsection (5)(a), where that applies).

(4)In applying subsection (2) by reference to any given time the state of affairs at that time (including the case for the prosecution as it stands at that time) must be taken into account.

(5)Where the accused gives a defence statement under section 5, 6 or 6B—

(a)if as a result of that statement the prosecutor is required by this section to make any disclosure, or further disclosure, he must do so during the period which, by virtue of section 12, is the relevant period for this section;

(b)if the prosecutor considers that he is not so required, he must during that period give to the accused a written statement to that effect.

(6)For the purposes of this section prosecution material is material—

(a)which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused, or

(b)which, in pursuance of a code operative under Part 2, he has inspected in connection with the case for the prosecution against the accused.

(7)Subsections (3) to (5) of section 3 (method by which prosecutor discloses) apply for the purposes of this section as they apply for the purposes of that.

(8)Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

(9)Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23).

Annotations:

Commencement Information

I21S. 37 wholly in force at 15.7.2005; s. 37 not in force at Royal Assent, see s. 336(3); s. 37 in force for E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 37 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

38Application by defence for disclosureE+W+N.I.

In section 8 of the 1996 Act (application by accused for disclosure), for subsections (1) and (2) there is substituted—

(1)This section applies where the accused has given a defence statement under section 5, 6 or 6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or has failed to comply with it.

(2)If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.

Annotations:

Commencement Information

I22S. 38 wholly in force at 15.7.2005; s. 38 not in force at Royal Assent, see s. 336(3); s. 38 in force for E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 37 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

39Faults in defence disclosureE+W+N.I.

For section 11 of the 1996 Act there is substituted—

11Faults in disclosure by accused

(1)This section applies in the three cases set out in subsections (2), (3) and (4).

(2)The first case is where section 5 applies and the accused—

(a)fails to give an initial defence statement,

(b)gives an initial defence statement but does so after the end of the period which, by virtue of section 12, is the relevant period for section 5,

(c)is required by section 6B to give either an updated defence statement or a statement of the kind mentioned in subsection (4) of that section but fails to do so,

(d)gives an updated defence statement or a statement of the kind mentioned in section 6B(4) but does so after the end of the period which, by virtue of section 12, is the relevant period for section 6B,

(e)sets out inconsistent defences in his defence statement, or

(f)at his trial—

(i)puts forward a defence which was not mentioned in his defence statement or is different from any defence set out in that statement,

(ii)relies on a matter which, in breach of the requirements imposed by or under section 6A, was not mentioned in his defence statement,

(iii)adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement, or

(iv)calls a witness to give evidence in support of an alibi without having complied with section 6A(2)(a) or (b) as regards the witness in his defence statement.

(3)The second case is where section 6 applies, the accused gives an initial defence statement, and the accused—

(a)gives the initial defence statement after the end of the period which, by virtue of section 12, is the relevant period for section 6, or

(b)does any of the things mentioned in paragraphs (c) to (f) of subsection (2).

(4)The third case is where the accused—

(a)gives a witness notice but does so after the end of the period which, by virtue of section 12, is the relevant period for section 6C, or

(b)at his trial calls a witness (other than himself) not included, or not adequately identified, in a witness notice.

(5)Where this section applies—

(a)the court or any other party may make such comment as appears appropriate;

(b)the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.

(6)Where—

(a)this section applies by virtue of subsection (2)(f)(ii) (including that provision as it applies by virtue of subsection (3)(b)), and

(b)the matter which was not mentioned is a point of law (including any point as to the admissibility of evidence or an abuse of process) or an authority,

comment by another party under subsection (5)(a) may be made only with the leave of the court.

(7)Where this section applies by virtue of subsection (4), comment by another party under subsection (5)(a) may be made only with the leave of the court.

(8)Where the accused puts forward a defence which is different from any defence set out in his defence statement, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard—

(a)to the extent of the differences in the defences, and

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

(9)Where the accused calls a witness whom he has failed to include, or to identify adequately, in a witness notice, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard to whether there is any justification for the failure.

(10)A person shall not be convicted of an offence solely on an inference drawn under subsection (5).

(11)Where the accused has given a statement of the kind mentioned in section 6B(4), then, for the purposes of subsections (2)(f)(ii) and (iv), the question as to whether there has been a breach of the requirements imposed by or under section 6A or a failure to comply with section 6A(2)(a) or (b) shall be determined—

(a)by reference to the state of affairs at the time when that statement was given, and

(b)as if the defence statement was given at the same time as that statement.

(12)In this section—

(a)initial defence statement” means a defence statement given under section 5 or 6;

(b)updated defence statement” means a defence statement given under section 6B;

(c)a reference simply to an accused’s “defence statement” is a reference—

(i)where he has given only an initial defence statement, to that statement;

(ii)where he has given both an initial and an updated defence statement, to the updated defence statement;

(iii)where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(4), to the initial defence statement;

(d)a reference to evidence in support of an alibi shall be construed in accordance with section 6A(3);

(e)witness notice” means a notice given under section 6C.

Annotations:

Commencement Information

I23S. 39 partly in force; s. 39 not in force at Royal Assent, see s. 336(3); s. 39 in force for E.W. for certain purposes at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 39 in force for N.I. for certain purposes at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3)); s. 39 in force for E.W. for certain purposes at 1.5.2010 by S.I. 2010/1183, art. 3 (with art. 4)

40Code of practice for police interviews of witnesses notified by accusedE+W+N.I.

In Part 1 of the 1996 Act after section 21 there is inserted—

21ACode of practice for police interviews of witnesses notified by accused

(1)The Secretary of State shall prepare a code of practice which gives guidance to police officers, and other persons charged with the duty of investigating offences, in relation to the arranging and conducting of interviews of persons—

(a)particulars of whom are given in a defence statement in accordance with section 6A(2), or

(b)who are included as proposed witnesses in a notice given under section 6C.

(2)The code must include (in particular) guidance in relation to—

(a)information that should be provided to the interviewee and the accused in relation to such an interview;

(b)the notification of the accused’s solicitor of such an interview;

(c)the attendance of the interviewee’s solicitor at such an interview;

(d)the attendance of the accused’s solicitor at such an interview;

(e)the attendance of any other appropriate person at such an interview taking into account the interviewee’s age or any disability of the interviewee.

(3)Any police officer or other person charged with the duty of investigating offences who arranges or conducts such an interview shall have regard to the code.

(4)In preparing the code, the Secretary of State shall consult—

(a)to the extent the code applies to England and Wales—

(i)any person who he considers to represent the interests of chief officers of police;

(ii)the General Council of the Bar;

(iii)the Law Society of England and Wales;

(iv)the Institute of Legal Executives;

(b)to the extent the code applies to Northern Ireland—

(i)the Chief Constable of the Police Service of Northern Ireland;

(ii)the General Council of the Bar of Northern Ireland;

(iii)the Law Society of Northern Ireland;

(c)such other persons as he thinks fit.

(5)The code shall not come into operation until the Secretary of State by order so provides.

(6)The Secretary of State may from time to time revise the code and subsections (4) and (5) shall apply to a revised code as they apply to the code as first prepared.

(7)An order bringing the code into operation may not be made unless a draft of the order has been laid before each House of Parliament and approved by a resolution of each House.

(8)An order bringing a revised code into operation shall be laid before each House of Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.

(9)When an order or a draft of an order is laid in accordance with subsection (7) or (8), the code to which it relates shall also be laid.

(10)No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.

(11)A failure by a person mentioned in subsection (3) to have regard to any provision of a code for the time being in operation by virtue of an order under this section shall not in itself render him liable to any criminal or civil proceedings.

(12)In all criminal and civil proceedings a code in operation at any time by virtue of an order under this section shall be admissible in evidence.

(13)If it appears to a court or tribunal conducting criminal or civil proceedings that—

(a)any provision of a code in operation at any time by virtue of an order under this section, or

(b)any failure mentioned in subsection (11),

is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.

Annotations:

Commencement Information

I24S. 40 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

Part 6 E+WAllocation and sending of offences

41Allocation of offences triable either way, and sending cases to Crown CourtE+W

Schedule 3 (which makes provision in relation to the allocation and other treatment of offences triable either way, and the sending of cases to the Crown Court) shall have effect.

Annotations:

Commencement Information

I25S. 41 partly in force; s. 41 not in force at Royal Assent, see s. 336(3); s. 41 in force for certain purposes at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 3 (subject to art. 2(2), Sch. 2)

42Mode of trial for certain firearms offences: transitory arrangementsE+W

(1)The Magistrates' Courts Act 1980 is amended as follows.

(2)In section 24 (summary trial of information against child or young person for indictable offence)—

(a)in subsection (1), for “homicide” there is substituted “ one falling within subsection (1B) below ”,

(b)in subsection (1A)(a), for “of homicide” there is substituted “ falling within subsection (1B) below ”,

(c)after subsection (1A), there is inserted—

(1B)An offence falls within this subsection if—

(a)it is an offence of homicide; or

(b)each of the requirements of section 51A(1) of the Firearms Act 1968 would be satisfied with respect to—

(i)the offence; and

(ii)the person charged with it,

if he were convicted of the offence.

(3)In section 25 (power to change from summary trial to committal proceedings and vice versa), in subsection (5), for “homicide” there is substituted “ one falling within section 24(1B) above ”.

Part 7 E+W+S+N.I.Trials on indictment without a jury

Prospective

43Applications by prosecution for certain fraud cases to be conducted without a juryE+W+S+N.I.

(1)This section applies where—

(a)one or more defendants are to be tried on indictment for one or more offences, and

(b)notice has been given under section 51B of the Crime and Disorder Act 1998 (c. 37) (notices in serious or complex fraud cases) in respect of that offence or those offences.

(2)The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3)If an application under subsection (2) is made and the judge is satisfied that the condition in subsection (5) is fulfilled, he may make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4)The judge may not make such an order without the approval of the Lord Chief Justice or a judge nominated by him.

(5)The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.

(6)In deciding whether or not he is satisfied that that condition is fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.

(7)But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.

44Application by prosecution for trial to be conducted without a jury where danger of jury tamperingE+W+S+N.I.

(1)This section applies where one or more defendants are to be tried on indictment for one or more offences.

(2)The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3)If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4)The first condition is that there is evidence of a real and present danger that jury tampering would take place.

(5)The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

(6)The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—

(a)a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,

(b)a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,

(c)a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.

Annotations:

Commencement Information

I26S. 44 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

45Procedure for applications under sections 43 and 44E+W+S+N.I.

(1)This section applies—

(a)to an application under section 43, and

(b)to an application under section 44.

(2)An application to which this section applies must be determined at a preparatory hearing (within the meaning of the 1987 Act or Part 3 of the 1996 Act).

(3)The parties to a preparatory hearing at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.

(4)In section 7(1) of the 1987 Act (which sets out the purposes of preparatory hearings) for paragraphs (a) to (c) there is substituted—

(a)identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial,

(b)if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them,

(c)determining an application to which section 45 of the Criminal Justice Act 2003 applies,.

(5)In section 9(11) of that Act (appeal to Court of Appeal) after “above,” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(6)In section 29 of the 1996 Act (power to order preparatory hearing) after subsection (1) there is inserted—

(1A)A judge of the Crown Court may also order that a preparatory hearing shall be held if an application to which section 45 of the Criminal Justice Act 2003 applies (application for trial without jury) is made.

(7)In subsection (2) of that section (which sets out the purposes of preparatory hearings) for paragraphs (a) to (c) there is substituted—

(a)identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial,

(b)if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them,

(c)determining an application to which section 45 of the Criminal Justice Act 2003 applies,.

(8)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In section 35(1) of that Act (appeal to Court of Appeal) after “31(3),” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(10)In this section—

  • the 1987 Act” means the Criminal Justice Act 1987 (c. 38),

  • the 1996 Act” means the Criminal Procedure and Investigations Act 1996 (c. 25).

Annotations:

Amendments (Textual)

Commencement Information

I27S. 45 partly in force; s. 45 not in force at Royal Assent, see s. 336(3); s. 45 in force for certain purpose at 24.7.2006 by S.I. 2006/1835, art. 2 (subject to art. 3)

46Discharge of jury because of jury tamperingE+W+S+N.I.

(1)This section applies where—

(a)a judge is minded during a trial on indictment to discharge the jury, and

(b)he is so minded because jury tampering appears to have taken place.

(2)Before taking any steps to discharge the jury, the judge must—

(a)inform the parties that he is minded to discharge the jury,

(b)inform the parties of the grounds on which he is so minded, and

(c)allow the parties an opportunity to make representations.

(3)Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied—

(a)that jury tampering has taken place, and

(b)that to continue the trial without a jury would be fair to the defendant or defendants;

but this is subject to subsection (4).

(4)If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial.

(5)Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled.

(6)Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial.

(7)Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.

Annotations:

Commencement Information

I28S. 46 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

47AppealsE+W+S+N.I.

(1)An appeal shall lie to the Court of Appeal from an order under section 46(3) or (5).

(2)Such an appeal may be brought only with the leave of the judge or the Court of Appeal.

(3)An order from which an appeal under this section lies is not to take effect—

(a)before the expiration of the period for bringing an appeal under this section, or

(b)if such an appeal is brought, before the appeal is finally disposed of or abandoned.

(4)On the termination of the hearing of an appeal under this section, the Court of Appeal may confirm or revoke the order.

(5)Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (power by rules to distribute business of Court of Appeal between its civil and criminal divisions)—

(a)the jurisdiction of the Court of Appeal under this section is to be exercised by the criminal division of that court, and

(b)references in this section to the Court of Appeal are to be construed as references to that division.

(6)In section 33(1) of the Criminal Appeal Act 1968 (c. 19) (right of appeal to House of Lords) after “1996” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(7)In section 36 of that Act (bail on appeal by defendant) after “hearings)” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(8)The Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this section, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal Act 1968 (subject to any specified modifications).

Annotations:

Commencement Information

I29S. 47 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

48Further provision about trials without a juryE+W+S+N.I.

(1)The effect of an order under section 43, 44 or 46(5) is that the trial to which the order relates is to be conducted without a jury.

(2)The effect of an order under section 46(3) is that the trial to which the order relates is to be continued without a jury.

(3)Where a trial is conducted or continued without a jury, the court is to have all the powers, authorities and jurisdiction which the court would have had if the trial had been conducted or continued with a jury (including power to determine any question and to make any finding which would be required to be determined or made by a jury).

(4)Except where the context otherwise requires, any reference in an enactment to a jury, the verdict of a jury or the finding of a jury is to be read, in relation to a trial conducted or continued without a jury, as a reference to the court, the verdict of the court or the finding of the court.

(5)Where a trial is conducted or continued without a jury and the court convicts a defendant—

(a)the court must give a judgment which states the reasons for the conviction at, or as soon as reasonably practicable after, the time of the conviction, and

(b)the reference in section 18(2) of the Criminal Appeal Act 1968 (c. 19) (notice of appeal or of application for leave to appeal to be given within 28 days from date of conviction etc) to the date of the conviction is to be read as a reference to the date of the judgment mentioned in paragraph (a).

(6)Nothing in this Part affects[F24 the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 that any question, finding or verdict mentioned in that section be determined, made or returned by a jury].

Annotations:

Amendments (Textual)

F24S. 48(6): words substituted (31.3.2005) for s. 48(6)(a)(b) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 59, 60 {Sch. 10 para. 60} (with Sch. 12 para. 8); S.I. 2005/579, art. 3(f)(g)

Commencement Information

I30S. 48 partly in force; s. 48 not in force at Royal Assent, see s. 336(3); s. 48 in force for certain purposes at 24.7.2006 by S.I. 2006/1835, art. 2 (subject to art. 3)

49Rules of courtE+W+S+N.I.

(1)Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

(2)Without limiting subsection (1), rules of court may in particular make provision for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done.

(3)Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.

50Application of Part 7 to Northern IrelandE+W+S+N.I.

(1)In its application to Northern Ireland this Part is to have effect—

(a)subject to subsection (2), and

(b)subject to the modifications in subsections (3) to (16).

(2)This Part does not apply in relation to a trial to which section 75 of the Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies.

(3)For section 45 substitute—

45Procedure for applications under sections 43 and 44

(1)This section applies—

(a)to an application under section 43, and

(b)to an application under section 44.

(2)An application to which this section applies must be determined—

(a)at a preparatory hearing (within the meaning of the 1988 Order), or

(b)at a hearing specified in, or for which provision is made by, Crown Court rules.

(3)The parties to a hearing mentioned in subsection (2) at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.

(4)In Article 6(1) of the 1988 Order (which sets out the purposes of preparatory hearings) for sub-paragraphs (a) to (c) there is substituted—

(a)identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial;

(b)if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them;

(c)determining an application to which section 45 of the Criminal Justice Act 2003 applies; or.

(5)In Article 8(11) of the 1988 Order (appeal to Court of Appeal) after “(3),” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(6)In this section “the 1988 Order” means the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.

(4)For section 47(1) substitute—

(1)An appeal shall lie to the Court of Appeal—

(a)from the refusal by a judge at a hearing mentioned in section 45(2)(b) of an application to which section 45 applies or from an order of a judge at such a hearing under section 43 or 44 which is made on the determination of such an application,

(b)from an order under section 46(3) or (5).

(5)In section 47(3) after “order” insert “ or a refusal of an application ”.

(6)In section 47(4) for “confirm or revoke the order” substitute—

(a)where the appeal is from an order, confirm or revoke the order, or

(b)where the appeal is from a refusal of an application, confirm the refusal or make the order which is the subject of the application.

(7)Omit section 47(5).

(8)For section 47(6) substitute—

(6)In section 31(1) of the Criminal Appeal (Northern Ireland) Act 1980 (right of appeal to [F25Supreme Court]) after “1988” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(9)For section 47(7) substitute—

(7)In section 35 of that Act (bail) after “hearings)” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(10)In section 47(8)

[F26(a)for “Secretary of State” substitute Department of Justice in Northern Ireland; and

(b)]for “Criminal Appeal Act 1968” substitute “ Criminal Appeal (Northern Ireland) Act 1980 ”.

(11)In section 48(4) after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

(12)For section 48(5)(b) substitute—

(b)the reference in section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (notice of appeal or application for leave) to the date of the conviction is to be read as a reference to the date of the judgment mentioned in paragraph (a).

(13)In section 48(6)—

[F27(a)for “section 4A of the Criminal Procedure (Insanity) Act 1964” substitute Article 49A of the Mental Health (Northern Ireland) Order 1986, and

(b)for “that section” substitute that Article.]

(14)After section 48 insert—

48AReporting restrictions

(1) Sections 41 and 42of the Criminal Procedure and Investigations Act 1996 (c. 25) are to apply in relation to—

(a)a hearing of the kind mentioned in section 45(2)(b), and

(b)any appeal or application for leave to appeal relating to such a hearing,

as they apply in relation to a ruling under section 40 of that Act, but subject to the following modifications.

(2)Section 41(2) of that Act is to have effect as if for paragraphs (a) to (d) there were substituted—

(a)a hearing of the kind mentioned in section 45(2)(b) of the Criminal Justice Act 2003;

(b)any appeal or application for leave to appeal relating to such a hearing.

(3)Section 41(3) of that Act is to have effect as if—

(a)for “(2)” there were substituted “ (2)(a) or an application to that judge for leave to appeal to the Court of Appeal ”, and

(b)after “matter” in the second place where it occurs there were inserted “ or application ”.

(4)Section 41 of that Act is to have effect as if after subsection (3) there were inserted—

(3A)The Court of Appeal may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a)an appeal to that Court, or

(b)an application to that Court for leave to appeal.

(3B)The [F28Supreme Court] may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a)an appeal to [F29the Supreme Court] , or

(b)an application to [F29the Supreme Court] for leave to appeal.

(5)Section 41(4) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the [F30Supreme Court].

(6)Section 41(5) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the [F30Supreme Court].

Annotations:

Amendments (Textual)

F28Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4), 148, {Sch. 9 para. 82(2)(b)}; S.I. 2009/1604, art. 2(d)

F29Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4), 148, {Sch. 9 para. 82(2)(b)}; S.I. 2009/1604, art. 2(d)

F30Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4), 148, {Sch. 9 para. 82(2)(c)}; S.I. 2009/1604, art. 2(d)

(15)For section 49(2) substitute—

(2)Without limiting subsection (1), rules of court may in particular make provision—

(a)for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done;

(b)in relation to hearings of the kind mentioned in section 45(2)(b) and appeals under section 47.

(16)In section 49(3)—

(a)after “section” insert “ or section 45(2)(b) ”, and

(b)after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

Annotations:

Amendments (Textual)

F25Words in s. 50(8) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4), 148, {Sch. 9 para. 82(2)(a)}; S.I. 2009/1604, art. 2(d)

F27S. 50(13)(a)(b) substituted (31.3.2005) for s. 50(13)(a)-(c) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 59, 60 {Sch. 10 para. 61} (with Sch. 12 para. 8); S.I. 2005/579, art. 3(e)

Commencement Information

I31S. 50 partly in force; s. 50 not in force at Royal Assent, see s. 336(3); s. 50 in force for certain purposes at 8.1.2007 by S.I. 2006/3422, art. 2

Part 8 E+WLive links

51Live links in criminal proceedingsE+W

(1)A witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings.

(2)They are—

(a)a summary trial,

(b)an appeal to the Crown Court arising out of such a trial,

(c)a trial on indictment,

(d)an appeal to the criminal division of the Court of Appeal,

(e)the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),

(f)a hearing before a magistrates' court or the Crown Court which is held after the defendant has entered a plea of guilty, and

(g)a hearing before the Court of Appeal under section 80 of this Act.

(3)A direction may be given under this section—

(a)on an application by a party to the proceedings, or

(b)of the court’s own motion.

(4)But a direction may not be given under this section unless—

(a)the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link,

(b)it has been notified by the Secretary of State that suitable facilities for receiving evidence through a live link are available in the area in which it appears to the court that the proceedings will take place, and

(c)that notification has not been withdrawn.

(5)The withdrawal of such a notification is not to affect a direction given under this section before that withdrawal.

(6)In deciding whether to give a direction under this section the court must consider all the circumstances of the case.

(7)Those circumstances include in particular—

(a)the availability of the witness,

(b)the need for the witness to attend in person,

(c)the importance of the witness’s evidence to the proceedings,

(d)the views of the witness,

(e)the suitability of the facilities at the place where the witness would give evidence through a live link,

(f)whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

(8)The court must state in open court its reasons for refusing an application for a direction under this section and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.

Annotations:

Commencement Information

I32S. 51 wholly in force at 26.4.2010; s. 51 not in force at Royal Assent, see s. 336(3); s. 51 in force for certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 51 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(a) (with art. 4)

52Effect of, and rescission of, directionE+W

(1)Subsection (2) applies where the court gives a direction under section 51 for a person to give evidence through a live link in particular proceedings.

(2)The person concerned may not give evidence in those proceedings after the direction is given otherwise than through a live link (but this is subject to the following provisions of this section).

(3)The court may rescind a direction under section 51 if it appears to the court to be in the interests of justice to do so.

(4)Where it does so, the person concerned shall cease to be able to give evidence in the proceedings through a live link, but this does not prevent the court from giving a further direction under section 51 in relation to him.

(5)A direction under section 51 may be rescinded under subsection (3)—

(a)on an application by a party to the proceedings, or

(b)of the court’s own motion.

(6)But an application may not be made under subsection (5)(a) unless there has been a material change of circumstances since the direction was given.

(7)The court must state in open court its reasons—

(a)for rescinding a direction under section 51, or

(b)for refusing an application to rescind such a direction,

and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.

Annotations:

Commencement Information

I33S. 52 wholly in force at 26.4.2010; s. 52 not in force at Royal Assent, see s. 336(3); s. 52 in force for certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 52 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(b) (with art. 4)

53Magistrates' courts permitted to sit at other locationsE+W

(1)This section applies where—

(a)a magistrates' court is minded to give a direction under section 51 for evidence to be given through a live link in proceedings before the court, and

(b)suitable facilities for receiving such evidence are not available at any [F31place at] which the court can (apart from subsection (2)) lawfully sit.

(2)The court may sit for the purposes of the whole or any part of the proceedings at any place at which such facilities are available and which has been [F32authorised by a direction under section 30 of the Courts Act 2003] .

[F33(3)If the place mentioned in subsection (2) is outside the local justice area in which the justices act it shall be deemed to be in that area for the purpose of the jurisdiction of the justices acting in that area.]

54Warning to juryE+W

(1)This section applies where, as a result of a direction under section 51, evidence has been given through a live link in proceedings before the Crown Court.

(2)The judge may give the jury (if there is one) such direction as he thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the proceedings are held.

Annotations:

Commencement Information

I34S. 54 wholly in force at 26.4.2010; s. 54 not in force at Royal Assent, see s. 336(3); s. 54 in force for certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 54 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(c) (with art. 4)

55Rules of courtE+W

(1)[F34Criminal Procedure Rules] may make such provision as appears to the [F35Criminal Procedure Rule Committee] to be necessary or expedient for the purposes of this Part.

(2)[F36Criminal Procedure Rules] may in particular make provision—

(a)as to the procedure to be followed in connection with applications under section 51 or 52, and

(b)as to the arrangements or safeguards to be put in place in connection with the operation of live links.

(3)The provision which may be made by virtue of subsection (2)(a) includes provision—

(a)for uncontested applications to be determined by the court without a hearing,

(b)for preventing the renewal of an unsuccessful application under section 51 unless there has been a material change of circumstances,

(c)for the manner in which confidential or sensitive information is to be treated in connection with an application under section 51 or 52 and in particular as to its being disclosed to, or withheld from, a party to the proceedings.

(4)Nothing in this section is to be taken as affecting the generality of any enactment conferring power to make [F37Criminal Procedure Rules] .

56Interpretation of Part 8E+W

(1)In this Part—

  • legal representative” means [F38a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act),]

F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • [F40local justice area” has the same meaning as in the Courts Act 2003 (c. 39)],

F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • witness”, in relation to any criminal proceedings, means a person called, or proposed to be called, to give evidence in the proceedings.

(2)In this Part “live link” means a live television link or other arrangement by which a witness, while at a place in the United Kingdom which is outside the building where the proceedings are being held, is able to see and hear a person at the place where the proceedings are being held and to be seen and heard by the following persons.

(3)They are—

(a)the defendant or defendants,

(b)the judge or justices (or both) and the jury (if there is one),

(c)legal representatives acting in the proceedings, and

(d)any interpreter or other person appointed by the court to assist the witness.

(4)The extent (if any) to which a person is unable to see or hear by reason of any impairment of eyesight or hearing is to be disregarded for the purposes of subsection (2).

(5)Nothing in this Part is to be regarded as affecting any power of a court—

(a)to make an order, give directions or give leave of any description in relation to any witness (including the defendant or defendants), or

(b)to exclude evidence at its discretion (whether by preventing questions being put or otherwise).

Annotations:

Amendments (Textual)

F38S. 56(1): words in definition of "legal representative" substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208, 211, Sch. 21 para. 146 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)

F39In s. 56(1) definition of "petty-sessional court-house" omitted (1.4.2005) by virtue of The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 100

F40In s. 56(1) definition of "local justice area" substituted (1.4.2005) for definition of "petty sessions area" by The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 100

F41In s. 56(1) definition of "rules of court" omitted (1.9.2004) by virtue of The Courts Act 2003 (Consequential Amendments) Order 2004 (S.I. 2004/2035), art. 3, Sch. para. 48 (with art. 2(2))

Commencement Information

I35S. 56 wholly in force at 26.4.2010; s. 56 not in force at Royal Assent, see s. 336(3); s. 56 in force for certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 56 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(d) (with art. 4)

Part 9 E+W+S+N.I.Prosecution appeals

IntroductionE+W

57IntroductionE+W
Annotations:

Commencement Information

I36S. 57 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

(1)In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.

(2)But the prosecution is to have no right of appeal under this Part in respect of—

(a)a ruling that a jury be discharged, or

(b)a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment.

(3)An appeal under this Part is to lie to the Court of Appeal.

(4)Such an appeal may be brought only with the leave of the judge or the Court of Appeal.

Annotations:

Commencement Information

I36S. 57 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

General right of appeal in respect of rulingsE+W

58General right of appeal in respect of rulingsE+W

(1)This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2)The prosecution may appeal in respect of the ruling in accordance with this section.

(3)The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4)The prosecution may not appeal in respect of the ruling unless—

(a)following the making of the ruling, it—

(i)informs the court that it intends to appeal, or

(ii)requests an adjournment to consider whether to appeal, and

(b)if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5)If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment.

(6)Where the ruling relates to two or more offences—

(a)any one or more of those offences may be the subject of the appeal, and

(b)if the prosecution informs the court in accordance with subsection (4) that it intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal.

(7)Where—

(a)the ruling is a ruling that there is no case to answer, and

(b)the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

that other ruling, or those other rulings, are also to be treated as the subject of the appeal.

(8)The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9)Those conditions are—

(a)that leave to appeal to the Court of Appeal is not obtained, and

(b)that the appeal is abandoned before it is determined by the Court of Appeal.

(10)If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11)If and to the extent that a ruling has no effect in accordance with this section—

(a)any consequences of the ruling are also to have no effect,

(b)the judge may not take any steps in consequence of the ruling, and

(c)if he does so, any such steps are also to have no effect.

(12)Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(13)In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the [F42time when the judge starts his] summing-up to the jury.

[F43(14)The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.]

Annotations:

Amendments (Textual)

Commencement Information

I37S. 58 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

59Expedited and non-expedited appealsE+W

(1)Where the prosecution informs the court in accordance with section 58(4) that it intends to appeal, the judge must decide whether or not the appeal should be expedited.

(2)If the judge decides that the appeal should be expedited, he may order an adjournment.

(3)If the judge decides that the appeal should not be expedited, he may—

(a)order an adjournment, or

(b)discharge the jury (if one has been sworn).

(4)If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b).

Annotations:

Commencement Information

I38S. 59 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

60Continuation of proceedings for offences not affected by rulingE+W

(1)This section applies where the prosecution informs the court in accordance with section 58(4) that it intends to appeal.

(2)Proceedings may be continued in respect of any offence which is not the subject of the appeal.

Annotations:

Commencement Information

I39S. 60 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

61Determination of appeal by Court of AppealE+W

(1)On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2)Subsections (3) to (5) apply where the appeal relates to a single ruling.

(3)Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(4)Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a)order that proceedings for that offence may be resumed in the Crown Court,

(b)order that a fresh trial may take place in the Crown Court for that offence,

(c)order that the defendant in relation to that offence be acquitted of that offence.

[F44(5)But the Court of Appeal may not make an order under subsection (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).]

(6)Subsections (7) and (8) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.

(7)Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(8)Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (4)(a) to (c) (but subject to subsection (5)).

Annotations:

Amendments (Textual)

Commencement Information

I40S. 61 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

Prospective

Right of appeal in respect of evidentiary rulingsE+W

62Right of appeal in respect of evidentiary rulingsE+W

(1)The prosecution may, in accordance with this section and section 63, appeal in respect of—

(a)a single qualifying evidentiary ruling, or

(b)two or more qualifying evidentiary rulings.

(2)A “qualifying evidentiary ruling” is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

(3)The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(4)The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(5)If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—

(a)of its intention to do so, and

(b)of the ruling or rulings to which the appeal relates.

(6)In respect of the ruling, or each ruling, to which the appeal relates—

(a)the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and

(b)any other offence to which the ruling relates may, but need not, be the subject of the appeal.

(7)The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.

(8)For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—

(a)evidence begins to be adduced by or on behalf of a defendant,

(b)it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,

(c)a defendant’s case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).

(9)In this section—

  • evidentiary ruling” means a ruling which relates to the admissibility or exclusion of any prosecution evidence,

  • qualifying offence” means an offence described in Part 1 of Schedule 4.

(10)The Secretary of State may by order amend that Part by doing any one or more of the following—

(a)adding a description of offence,

(b)removing a description of offence for the time being included,

(c)modifying a description of offence for the time being included.

(11)Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58.

63Condition that evidentiary ruling significantly weakens prosecution caseE+W

(1)Leave to appeal may not be given in relation to an appeal under section 62 unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.

(2)In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution’s case in relation to the offence or offences which are the subject of the appeal.

(3)In relation to an appeal in respect of two or more qualifying evidentiary rulings, the relevant condition is that the rulings taken together significantly weaken the prosecution’s case in relation to the offence or offences which are the subject of the appeal.

64Expedited and non-expedited appealsE+W

(1)Where the prosecution informs the court in accordance with section 62(5), the judge must decide whether or not the appeal should be expedited.

(2)If the judge decides that the appeal should be expedited, he may order an adjournment.

(3)If the judge decides that the appeal should not be expedited, he may—

(a)order an adjournment, or

(b)discharge the jury (if one has been sworn).

(4)If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b).

65Continuation of proceedings for offences not affected by rulingE+W

(1)This section applies where the prosecution informs the court in accordance with section 62(5).

(2)Proceedings may be continued in respect of any offence which is not the subject of the appeal.

66Determination of appeal by Court of AppealE+W

(1)On an appeal under section 62, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2)In addition, the Court of Appeal must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a)order that proceedings for that offence be resumed in the Crown Court,

(b)order that a fresh trial may take place in the Crown Court for that offence,

(c)order that the defendant in relation to that offence be acquitted of that offence.

(3)But no order may be made under subsection (2)(c) in respect of an offence unless the prosecution has indicated that it does not intend to continue with the prosecution of that offence.

Miscellaneous and supplementalE+W+S+N.I.

67Reversal of rulingsE+W+S+N.I.

The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—

(a)that the ruling was wrong in law,

(b)that the ruling involved an error of law or principle, or

(c)that the ruling was a ruling that it was not reasonable for the judge to have made.

Annotations:

Commencement Information

I41S. 67 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

68Appeals to the House of LordsE+W+S+N.I.

(1)In section 33(1) of the 1968 Act (right of appeal to House of Lords) after “this Act” there is inserted “ or Part 9 of the Criminal Justice Act 2003 ”.

(2)In section 36 of the 1968 Act (bail on appeal by defendant) after “under” there is inserted “ Part 9 of the Criminal Justice Act 2003 or ”.

(3)In this Part “the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

Annotations:

Commencement Information

I42S. 68 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

69CostsE+W+S+N.I.

(1)The Prosecution of Offences Act 1985 (c. 23) is amended as follows.

(2)In section 16(4A) (defence costs on an appeal under section 9(11) of Criminal Justice Act 1987 may be met out of central funds) after “hearings)” there is inserted “ or under Part 9 of the Criminal Justice Act 2003 ”.

(3)In section 18 (award of costs against accused) after subsection (2) there is inserted—

(2A)Where the Court of Appeal reverses or varies a ruling on an appeal under Part 9 of the Criminal Justice Act 2003, it may make such order as to the costs to be paid by the accused, to such person as may be named in the order, as it considers just and reasonable.

(4)In subsection (6) after “subsection (2)” there is inserted “ or (2A) ”.

Annotations:

Commencement Information

I43S. 69 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

70Effect on time limits in relation to preliminary stagesE+W+S+N.I.

(1)Section 22 of the Prosecution of Offences Act 1985 (c. 23) (power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings) is amended as follows.

(2)After subsection (6A) there is inserted—

(6B)Any period during which proceedings for an offence are adjourned pending the determination of an appeal under Part 9 of the Criminal Justice Act 2003 shall be disregarded, so far as the offence is concerned, for the purposes of the overall time limit and the custody time limit which applies to the stage which the proceedings have reached when they are adjourned.

Annotations:

Commencement Information

I44S. 70 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

71Restrictions on reportingE+W+S+N.I.

(1)Except as provided by this section no publication shall include a report of—

(a)anything done under section 58, 59, 62, 63 or 64,

(b)an appeal under this Part,

(c)an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part, or

(d)an application for leave to appeal in relation to an appeal mentioned in paragraph (b) or (c).

(2)The judge may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of—

(a)anything done under section 58, 59, 62, 63 or 64, or

(b)an application to the judge for leave to appeal to the Court of Appeal under this Part.

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

(a)an appeal to the Court of Appeal under this Part,

(b)an application to that Court for leave to appeal to it under this Part, or

(c)an application to that Court for leave to appeal to the [F45Supreme Court] under Part 2 of the 1968 Act.

(4)The [F46Supreme Court] may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of—

(a)an appeal to [F47the Supreme Court] under Part 2 of the 1968 Act, or

(b)an application to [F47the Supreme Court] for leave to appeal to it under Part 2 of that Act.

(5)Where there is only one defendant and he objects to the making of an order under subsection (2), (3) or (4)—

(a)the judge, the Court of Appeal or the [F48Supreme Court is] to make the order if (and only if) satisfied, after hearing the representations of the defendant, that it is in the interests of justice to do so, and

(b)the order (if made) is not to apply to the extent that a report deals with any such objection or representations.

(6)Where there are two or more defendants and one or more of them object to the making of an order under subsection (2), (3) or (4)—

(a)the judge, the Court of Appeal or the [F48Supreme Court is] to make the order if (and only if) satisfied, after hearing the representations of each of the defendants, that it is in the interests of justice to do so, and

(b)the order (if made) is not to apply to the extent that a report deals with any such objection or representations.

(7)Subsection (1) does not apply to the inclusion in a publication of a report of—

(a)anything done under section 58, 59, 62, 63 or 64,

(b)an appeal under this Part,

(c)an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part, or

(d)an application for leave to appeal in relation to an appeal mentioned in paragraph (b) or (c),

at the conclusion of the trial of the defendant or the last of the defendants to be tried.

(8)Subsection (1) 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 defendant or defendants and witnesses,

(c)the offence or offences, or a summary of them, with which the defendant or defendants are charged,

(d)the names of counsel and solicitors in the proceedings,

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

(f)any arrangements as to bail,

(g)whether a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service was granted to the defendant or any of the defendants.

(9)The addresses that may be included in a report by virtue of subsection (8) are addresses—

(a)at any relevant time, and

(b)at the time of their inclusion in the publication.

(10)Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of any matter in a publication.

(11)In this section—

  • programme service” has the same meaning as in the Broadcasting Act 1990 (c. 42),

  • publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings,

  • relevant time” means a time when events giving rise to the charges to which the proceedings relate are alleged to have occurred,

  • relevant programme” means a programme included in a programme service.

72Offences in connection with reportingE+W+S+N.I.

(1)This section applies if a publication includes a report in contravention of section 71.

(2)Where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical is guilty of an offence.

(3)Where the publication is a relevant programme—

(a)any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and

(b)any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

is guilty of an offence.

(4)In the case of any other publication, any person publishing it is guilty of an offence.

(5)If an offence under this section committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of, or

(b)to be attributable to any neglect on the part of,

an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(6)In subsection (5), “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(7)If the affairs of a body corporate are managed by its members, “director” in subsection (6) means a member of that body.

(8)Where an offence under this section is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

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

(10)Proceedings for an offence under this section may not be instituted—

(a)in England and Wales otherwise than by or with the consent of the Attorney General, or

(b)in Northern Ireland otherwise than by or with the consent of—

(i)before the relevant date, the Attorney General for Northern Ireland, or

(ii)on or after the relevant date, the Director of Public Prosecutions for Northern Ireland.

(11)In subsection (10) “the relevant date” means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c. 26) comes into force.

Annotations:

Commencement Information

I46S. 72 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

73Rules of courtE+W+S+N.I.

(1)Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

(2)Without limiting subsection (1), rules of court may in particular make provision—

(a)for time limits which are to apply in connection with any provisions of this Part,

(b)as to procedures to be applied in connection with this Part,

(c)enabling a single judge of the Court of Appeal to give leave to appeal under this Part or to exercise the power of the Court of Appeal under section 58(12).

(3)Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.

74Interpretation of Part 9E+W+S+N.I.

(1)In this Part—

  • programme service” has the meaning given by section 71(11),

  • publication” has the meaning given by section 71(11),

  • qualifying evidentiary ruling” is to be construed in accordance with section 62(2),

  • the relevant condition” is to be construed in accordance with section 63(2) and (3),

  • relevant programme” has the meaning given by section 71(11),

  • ruling” includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement,

  • the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

(2)Any reference in this Part (other than section 73(2)(c)) to a judge is a reference to a judge of the Crown Court.

(3)There is to be no right of appeal under this Part in respect of a ruling in relation to which the prosecution has previously informed the court of its intention to appeal under either section 58(4) or 62(5).

(4)Where a ruling relates to two or more offences but not all of those offences are the subject of an appeal under this Part, nothing in this Part is to be regarded as affecting the ruling so far as it relates to any offence which is not the subject of the appeal.

(5)Where two or more defendants are charged jointly with the same offence, the provisions of this Part are to apply as if the offence, so far as relating to each defendant, were a separate offence (so that, for example, any reference in this Part to a ruling which relates to one or more offences includes a ruling which relates to one or more of those separate offences).

(6)Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (power by rules to distribute business of Court of Appeal between its civil and criminal divisions)—

(a)the jurisdiction of the Court of Appeal under this Part is to be exercised by the criminal division of that court, and

(b)references in this Part to the Court of Appeal are to be construed as references to that division.

[F49(7)In its application to a trial on indictment in respect of which an order under section 17(2) of the Domestic Violence, Crime and Victims Act 2004 has been made, this Part is to have effect with such modifications as the Secretary of State may by order specify.]

Annotations:

Amendments (Textual)

Commencement Information

I47S. 74 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)

Part 10 E+W+S+N.I.Retrial for serious offences

Cases that may be retriedE+W+N.I.

75Cases that may be retriedE+W+N.I.

(1)This Part applies where a person has been acquitted of a qualifying offence in proceedings—

(a)on indictment in England and Wales,

(b)on appeal against a conviction, verdict or finding in proceedings on indictment in England and Wales, or

(c)on appeal from a decision on such an appeal.

(2)A person acquitted of an offence in proceedings mentioned in subsection (1) is treated for the purposes of that subsection as also acquitted of any qualifying offence of which he could have been convicted in the proceedings because of the first-mentioned offence being charged in the indictment, except an offence—

(a)of which he has been convicted,

(b)of which he has been found not guilty by reason of insanity, or

(c)in respect of which, in proceedings where he has been found to be under a disability (as defined by section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84)), a finding has been made that he did the act or made the omission charged against him.

(3)References in subsections (1) and (2) to a qualifying offence do not include references to an offence which, at the time of the acquittal, was the subject of an order under section 77(1) or (3).

(4)This Part also applies where a person has been acquitted, in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held, if the commission of the offence as alleged would have amounted to or included the commission (in the United Kingdom or elsewhere) of a qualifying offence.

(5)Conduct punishable under the law in force elsewhere than in the United Kingdom is an offence under that law for the purposes of subsection (4), however it is described in that law.

(6)This Part applies whether the acquittal was before or after the passing of this Act.

(7)References in this Part to acquittal are to acquittal in circumstances within subsection (1) or (4).

(8)In this Part “qualifying offence” means an offence listed in Part 1 of Schedule 5.

Annotations:

Commencement Information

I48S. 75 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

Application for retrialE+W+S+N.I.

76Application to Court of AppealE+W+N.I.

(1)A prosecutor may apply to the Court of Appeal for an order—

(a)quashing a person’s acquittal in proceedings within section 75(1), and

(b)ordering him to be retried for the qualifying offence.

(2)A prosecutor may apply to the Court of Appeal, in the case of a person acquitted elsewhere than in the United Kingdom, for—

(a)a determination whether the acquittal is a bar to the person being tried in England and Wales for the qualifying offence, and

(b)if it is, an order that the acquittal is not to be a bar.

(3)A prosecutor may make an application under subsection (1) or (2) only with the written consent of the Director of Public Prosecutions.

(4)The Director of Public Prosecutions may give his consent only if satisfied that—

(a)there is evidence as respects which the requirements of section 78 appear to be met,

(b)it is in the public interest for the application to proceed, and

(c)any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem.

(5)Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.

Annotations:

Commencement Information

I49S. 76 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

77Determination by Court of AppealE+W+N.I.

(1)On an application under section 76(1), the Court of Appeal—

(a)if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b)otherwise, must dismiss the application.

(2)Subsections (3) and (4) apply to an application under section 76(2).

(3)Where the Court of Appeal determines that the acquittal is a bar to the person being tried for the qualifying offence, the court—

(a)if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b)otherwise, must make a declaration to the effect that the acquittal is a bar to the person being tried for the offence.

(4)Where the Court of Appeal determines that the acquittal is not a bar to the person being tried for the qualifying offence, it must make a declaration to that effect.

Annotations:

Commencement Information

I50S. 77 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

78New and compelling evidenceE+W+N.I.

(1)The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2)Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3)Evidence is compelling if—

(a)it is reliable,

(b)it is substantial, and

(c)in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

(4)The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5)For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

Annotations:

Commencement Information

I51S. 78 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

79Interests of justiceE+W+N.I.

(1)The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77.

(2)That question is to be determined having regard in particular to—

(a)whether existing circumstances make a fair trial unlikely;

(b)for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;

(c)whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;

(d)whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.

(3)In subsection (2) references to an officer or prosecutor include references to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.

(4)Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2)(c) applies in relation to that person as well as in relation to a prosecutor.

Annotations:

Commencement Information

I52S. 79 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

80Procedure and evidenceE+W+N.I.

(1)A prosecutor who wishes to make an application under section 76(1) or (2) must give notice of the application to the Court of Appeal.

(2)Within two days beginning with the day on which any such notice is given, notice of the application must be served by the prosecutor on the person to whom the application relates, charging him with the offence to which it relates or, if he has been charged with it in accordance with section 87(4), stating that he has been so charged.

(3)Subsection (2) applies whether the person to whom the application relates is in the United Kingdom or elsewhere, but the Court of Appeal may, on application by the prosecutor, extend the time for service under that subsection if it considers it necessary to do so because of that person’s absence from the United Kingdom.

(4)The Court of Appeal must consider the application at a hearing.

(5)The person to whom the application relates—

(a)is entitled to be present at the hearing, although he may be in custody, unless he is in custody elsewhere than in England and Wales or Northern Ireland, and

(b)is entitled to be represented at the hearing, whether he is present or not.

(6)For the purposes of the application, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a)order the production of any document, exhibit or other thing, the production of which appears to the court to be necessary for the determination of the application, and

(b)order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the court.

(7)The Court of Appeal may at one hearing consider more than one application (whether or not relating to the same person), but only if the offences concerned could be tried on the same indictment.

Annotations:

Commencement Information

I53S. 80 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

81AppealsE+W+N.I.

(1)The Criminal Appeal Act 1968 (c. 19) is amended as follows.

(2)In section 33 (right of appeal to [F50Supreme Court]), after subsection (1A) there is inserted—

(1B)An appeal lies to the [F50Supreme Court] , at the instance of the acquitted person or the prosecutor, from any decision of the Court of Appeal on an application under section 76(1) or (2) of the Criminal Justice Act 2003 (retrial for serious offences).

(3)At the end of that section there is inserted—

(4)In relation to an appeal under subsection (1B), references in this Part to a defendant are references to the acquitted person.

(4)In section 34(2) (extension of time for leave to appeal), after “defendant” there is inserted “ or, in the case of an appeal under section 33(1B), by the prosecutor ”.

(5)In section 38 (presence of defendant at hearing), for “has been convicted of an offence and” substitute “ has been convicted of an offence, or in whose case an order under section 77 of the Criminal Justice Act 2003 or a declaration under section 77(4) of that Act has been made, and who ”.

Annotations:

Amendments (Textual)

Commencement Information

I54S. 81 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

82Restrictions on publication in the interests of justiceE+W+S+N.I.

(1)Where it appears to the Court of Appeal that the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial, the court may order that the matter is not to be included in any publication while the order has effect.

(2)In subsection (1) “retrial” means the trial of an acquitted person for a qualifying offence pursuant to any order made or that may be made under section 77.

(3)The court may make an order under this section only if it appears to it necessary in the interests of justice to do so.

(4)An order under this section may apply to a matter which has been included in a publication published before the order takes effect, but such an order—

(a)applies only to the later inclusion of the matter in a publication (whether directly or by inclusion of the earlier publication), and

(b)does not otherwise affect the earlier publication.

(5)After notice of an application has been given under section 80(1) relating to the acquitted person and the qualifying offence, the court may make an order under this section only—

(a)of its own motion, or

(b)on the application of the Director of Public Prosecutions.

(6)Before such notice has been given, an order under this section—

(a)may be made only on the application of the Director of Public Prosecutions, and

(b)may not be made unless, since the acquittal concerned, an investigation of the commission by the acquitted person of the qualifying offence has been commenced by officers.

(7)The court may at any time, of its own motion or on an application made by the Director of Public Prosecutions or the acquitted person, vary or revoke an order under this section.

(8)Any order made under this section before notice of an application has been given under section 80(1) relating to the acquitted person and the qualifying offence must specify the time when it ceases to have effect.

(9)An order under this section which is made or has effect after such notice has been given ceases to have effect, unless it specifies an earlier time—

(a)when there is no longer any step that could be taken which would lead to the acquitted person being tried pursuant to an order made on the application, or

(b)if he is tried pursuant to such an order, at the conclusion of the trial.

(10)Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of any matter in a publication or any power, under an enactment or otherwise, to impose such a prohibition or restriction.

(11)In this section—

  • programme service” has the same meaning as in the Broadcasting Act 1990 (c. 42),

  • publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings,

  • relevant programme” means a programme included in a programme service.

Annotations:

Commencement Information

I55S. 82 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

83Offences in connection with publication restrictionsE+W+S+N.I.

(1)This section applies if—

(a)an order under section 82 is made, whether in England and Wales or Northern Ireland, and

(b)while the order has effect, any matter is included in a publication, in any part of the United Kingdom, in contravention of the order.

(2)Where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical is guilty of an offence.

(3)Where the publication is a relevant programme—

(a)any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and

(b)any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

is guilty of an offence.

(4)In the case of any other publication, any person publishing it is guilty of an offence.

(5)If an offence under this section committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of, or

(b)to be attributable to any neglect on the part of,

an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(6)In subsection (5), “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(7)If the affairs of a body corporate are managed by its members, “director” in subsection (6) means a member of that body.

(8)Where an offence under this section is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

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

(10)Proceedings for an offence under this section may not be instituted—

(a)in England and Wales otherwise than by or with the consent of the Attorney General, or

(b)in Northern Ireland otherwise than by or with the consent of—

(i)before the relevant date, the Attorney General for Northern Ireland, or

(ii)on or after the relevant date, the Director of Public Prosecutions for Northern Ireland.

(11)In subsection (10) “the relevant date” means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c. 26) comes into force.

Annotations:

Commencement Information

I56S. 83 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

RetrialE+W+N.I.

84RetrialE+W+N.I.

(1)Where a person—

(a)is tried pursuant to an order under section 77(1), or

(b)is tried on indictment pursuant to an order under section 77(3),

the trial must be on an indictment preferred by direction of the Court of Appeal.

(2)After the end of 2 months after the date of the order, the person may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal gives leave.

(3)The Court of Appeal must not give leave unless satisfied that—

(a)the prosecutor has acted with due expedition, and

(b)there is a good and sufficient cause for trial despite the lapse of time since the order under section 77.

(4)Where the person may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order and—

(a)for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence, or

(b)in the case of a person acquitted elsewhere than in the United Kingdom, for a declaration to the effect that the acquittal is a bar to his being tried for the qualifying offence.

(5)An indictment under subsection (1) may relate to more than one offence, or more than one person, and may relate to an offence which, or a person who, is not the subject of an order or declaration under section 77.

(6)Evidence given at a trial pursuant to an order under section 77(1) or (3) must be given orally if it was given orally at the original trial, unless—

(a)all the parties to the trial agree otherwise,

(b)section 116 applies, or

(c)the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) applies.

(7)At a trial pursuant to an order under section 77(1), paragraph 5 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (use of depositions) does not apply to a deposition read as evidence at the original trial.

Annotations:

Commencement Information

I57S. 84 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

InvestigationsE+W+N.I.

85Authorisation of investigationsE+W+N.I.

(1)This section applies to the investigation of the commission of a qualifying offence by a person—

(a)acquitted in proceedings within section 75(1) of the qualifying offence, or

(b)acquitted elsewhere than in the United Kingdom of an offence the commission of which as alleged would have amounted to or included the commission (in the United Kingdom or elsewhere) of the qualifying offence.

(2)Subject to section 86, an officer may not do anything within subsection (3) for the purposes of such an investigation unless the Director of Public Prosecutions—

(a)has certified that in his opinion the acquittal would not be a bar to the trial of the acquitted person in England and Wales for the qualifying offence, or

(b)has given his written consent to the investigation (whether before or after the start of the investigation).

(3)The officer may not, either with or without the consent of the acquitted person—

(a)arrest or question him,

(b)search him or premises owned or occupied by him,

(c)search a vehicle owned by him or anything in or on such a vehicle,

(d)seize anything in his possession, or

(e)take his fingerprints or take a sample from him.

(4)The Director of Public Prosecutions may only give his consent on a written application, and such an application may be made only by an officer who—

(a)if he is an officer of the metropolitan police force or the City of London police force, is of the rank of commander or above, or

(b)in any other case, is of the rank of assistant chief constable or above.

(5)An officer may make an application under subsection (4) only if—

(a)he is satisfied that new evidence has been obtained which would be relevant to an application under section 76(1) or (2) in respect of the qualifying offence to which the investigation relates, or

(b)he has reasonable grounds for believing that such new evidence is likely to be obtained as a result of the investigation.

(6)The Director of Public Prosecutions may not give his consent unless satisfied that—

(a)there is, or there is likely as a result of the investigation to be, sufficient new evidence to warrant the conduct of the investigation, and

(b)it is in the public interest for the investigation to proceed.

(7)In giving his consent, the Director of Public Prosecutions may recommend that the investigation be conducted otherwise than by officers of a specified police force or specified team of customs and excise officers.

Annotations:

Commencement Information

I58S. 85 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

86Urgent investigative stepsE+W+N.I.

(1)Section 85 does not prevent an officer from taking any action for the purposes of an investigation if—

(a)the action is necessary as a matter of urgency to prevent the investigation being substantially and irrevocably prejudiced,

(b)the requirements of subsection (2) are met, and

(c)either—

(i)the action is authorised under subsection (3), or

(ii)the requirements of subsection (5) are met.

(2)The requirements of this subsection are met if—

(a)there has been no undue delay in applying for consent under section 85(2),

(b)that consent has not been refused, and

(c)taking into account the urgency of the situation, it is not reasonably practicable to obtain that consent before taking the action.

(3)An officer of the rank of superintendent or above may authorise the action if—

(a)he is satisfied that new evidence has been obtained which would be relevant to an application under section 76(1) or (2) in respect of the qualifying offence to which the investigation relates, or

(b)he has reasonable grounds for believing that such new evidence is likely to be obtained as a result of the investigation.

(4)An authorisation under subsection (3) must—

(a)if reasonably practicable, be given in writing;

(b)otherwise, be recorded in writing by the officer giving it as soon as is reasonably practicable.

(5)The requirements of this subsection are met if—

(a)there has been no undue delay in applying for authorisation under subsection (3),

(b)that authorisation has not been refused, and

(c)taking into account the urgency of the situation, it is not reasonably practicable to obtain that authorisation before taking the action.

(6)Where the requirements of subsection (5) are met, the action is nevertheless to be treated as having been unlawful unless, as soon as reasonably practicable after the action is taken, an officer of the rank of superintendent or above certifies in writing that he is satisfied that, when the action was taken—

(a)new evidence had been obtained which would be relevant to an application under section 76(1) or (2) in respect of the qualifying offence to which the investigation relates, or

(b)the officer who took the action had reasonable grounds for believing that such new evidence was likely to be obtained as a result of the investigation.

Annotations:

Commencement Information

I59S. 86 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

[F5186AApplication of sections 85 and 86 to investigations by the Police OmbudsmanN.I.

(1)Sections 85 and 86 apply in relation to an investigation by an officer of the Police Ombudsman for Northern Ireland with the following modifications.

(2)References in sections 85(2) and (3) and 86(1) to an officer shall be read as references to an officer of the Ombudsman.

(3)Section 85(4) has effect as if for the words from “an officer who” to the end there were substituted the Ombudsman.

(4)Section 85(5) has effect as if for “An officer” there were substituted The Ombudsman.

(4)Section 85(7) does not apply.

(6)Section 86(3) has effect as if for “An officer of the rank of superintendent or above” there were substituted A senior officer of the Ombudsman.

(7)Section 86(6) has effect as if for “an officer of the rank of superintendent or above” there were substituted a senior officer of the Ombudsman.

(8)References to a senior officer of the Ombudsman are to an officer of the rank of senior investigating officer or above.]

Arrest, custody and bailE+W+N.I.

87Arrest and chargeE+W+N.I.

(1)Where section 85 applies to the investigation of the commission of an offence by any person and no certification has been given under subsection (2) of that section—

(a)a justice of the peace may issue a warrant to arrest that person for that offence only if satisfied by written information that new evidence has been obtained which would be relevant to an application under section 76(1) or (2) in respect of the commission by that person of that offence, and

(b)that person may not be arrested for that offence except under a warrant so issued.

(2)Subsection (1) does not affect section 89(3)(b) or 91(3), or any other power to arrest a person, or to issue a warrant for the arrest of a person, otherwise than for an offence.

(3)Part 4 of the 1984 Act (detention) applies as follows where a person—

(a)is arrested for an offence under a warrant issued in accordance with subsection (1)(a), or

(b)having been so arrested, is subsequently treated under section 34(7) of that Act as arrested for that offence.

(4)For the purposes of that Part there is sufficient evidence to charge the person with the offence for which he has been arrested if, and only if, an officer of the rank of superintendent or above (who has not been directly involved in the investigation) is of the opinion that the evidence available or known to him is sufficient for the case to be referred to a prosecutor to consider whether consent should be sought for an application in respect of that person under section 76.

(5)For the purposes of that Part it is the duty of the custody officer at each police station where the person is detained to make available or known to an officer at that police station of the rank of superintendent or above any evidence which it appears to him may be relevant to an application under section 76(1) or (2) in respect of the offence for which the person has been arrested, and to do so as soon as practicable—

(a)after the evidence becomes available or known to him, or

(b)if later, after he forms that view.

(6)Section 37 of that Act (including any provision of that section as applied by section 40(8) of that Act) has effect subject to the following modifications—

(a)in subsection (1)—

(i)for “determine whether he has before him” there is substituted “ request an officer of the rank of superintendent or above (who has not been directly involved in the investigation) to determine, in accordance with section 87(4) of the Criminal Justice Act 2003, whether there is ”;

(ii)for “him to do so” there is substituted “ that determination to be made ”;

(b)in subsection (2)—

(i)for the words from “custody officer determines” to “before him” there is substituted “ officer determines that there is not such sufficient evidence ”;

(ii)the word “custody” is omitted from the second place where it occurs;

(c)in subsection (3)—

(i)the word “custody” is omitted;

(ii)after “may” there is inserted “ direct the custody officer to ”;

(d)in subsection (7) for the words from “the custody officer” to the end of that subsection there is substituted “ an officer of the rank of superintendent or above (who has not been directly involved in the investigation) determines, in accordance with section 87(4) of the Criminal Justice Act 2003, that there is sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested shall be charged. ”;

(e)subsections (7A), (7B) and (8) do not apply;

(f)after subsection (10) there is inserted—

(10A)The officer who is requested by the custody officer to make a determination under subsection (1) above shall make that determination as soon as practicable after the request is made..

(7)Section 40 of that Act has effect as if in subsections (8) and (9) of that section after “(6)” there were inserted “ and (10A) ”.

(8)Section 42 of that Act has effect as if in subsection (1) of that section for the words from “who” to “detained” there were substituted “ (who has not been directly involved in the investigation) ”.

Annotations:

Commencement Information

I60S. 87 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

88Bail and custody before applicationE+W+N.I.

(1)In relation to a person charged in accordance with section 87(4)—

(a)section 38 of the 1984 Act (including any provision of that section as applied by section 40(10) of that Act) has effect as if, in subsection (1), for “either on bail or without bail” there were substituted “ on bail ”,

(b)section 47(3) of that Act does not apply and references in section 38 of that Act to bail are references to bail subject to a duty to appear before the Crown Court at such place as the custody officer may appoint and at such time, not later than 24 hours after the person is released, as that officer may appoint, and

(c)section 43B of the Magistrates' Courts Act 1980 (c. 43) does not apply.

(2)Where such a person is, after being charged—

(a)kept in police detention, or

(b)detained by a local authority in pursuance of arrangements made under section 38(6) of the 1984 Act,

he must be brought before the Crown Court as soon as practicable and, in any event, not more than 24 hours after he is charged, and section 46 of the 1984 Act does not apply.

(3)For the purpose of calculating the period referred to in subsection (1) or (2), the following are to be disregarded—

(a)Sunday,

(b)Christmas Day,

(c)Good Friday, and

(d)any day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom where the person is to appear before the Crown Court as mentioned in subsection (1) or, where subsection (2) applies, is for the time being detained.

(4)Where a person appears or is brought before the Crown Court in accordance with subsection (1) or (2), the Crown Court may either—

(a)grant bail for the person to appear, if notice of an application is served on him under section 80(2), before the Court of Appeal at the hearing of that application, or

(b)remand the person in custody to be brought before the Crown Court under section 89(2).

(5)If the Crown Court grants bail under subsection (4), it may revoke bail and remand the person in custody as referred to in subsection (4)(b).

(6)In subsection (7) the “relevant period”, in relation to a person granted bail or remanded in custody under subsection (4), means—

(a)the period of 42 days beginning with the day on which he is granted bail or remanded in custody under that subsection, or

(b)that period as extended or further extended under subsection (8).

(7)If at the end of the relevant period no notice of an application under section 76(1) or (2) in relation to the person has been given under section 80(1), the person—

(a)if on bail subject to a duty to appear as mentioned in subsection (4)(a), ceases to be subject to that duty and to any conditions of that bail, and

(b)if in custody on remand under subsection (4)(b) or (5), must be released immediately without bail.

(8)The Crown Court may, on the application of a prosecutor, extend or further extend the period mentioned in subsection (6)(a) until a specified date, but only if satisfied that—

(a)the need for the extension is due to some good and sufficient cause, and

(b)the prosecutor has acted with all due diligence and expedition.

Annotations:

Commencement Information

I61S. 88 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

89Bail and custody before hearingE+W+N.I.

(1)This section applies where notice of an application is given under section 80(1).

(2)If the person to whom the application relates is in custody under section 88(4)(b) or (5), he must be brought before the Crown Court as soon as practicable and, in any event, within 48 hours after the notice is given.

(3)If that person is not in custody under section 88(4)(b) or (5), the Crown Court may, on application by the prosecutor—

(a)issue a summons requiring the person to appear before the Court of Appeal at the hearing of the application, or

(b)issue a warrant for the person’s arrest,

and a warrant under paragraph (b) may be issued at any time even though a summons has previously been issued.

(4)Where a summons is issued under subsection (3)(a), the time and place at which the person must appear may be specified either—

(a)in the summons, or

(b)in a subsequent direction of the Crown Court.

(5)The time or place specified may be varied from time to time by a direction of the Crown Court.

(6)A person arrested under a warrant under subsection (3)(b) must be brought before the Crown Court as soon as practicable and in any event within 48 hours after his arrest, and section 81(5) of the Supreme Court Act 1981 (c. 54) does not apply.

(7)If a person is brought before the Crown Court under subsection (2) or (6) the court must either—

(a)remand him in custody to be brought before the Court of Appeal at the hearing of the application, or

(b)grant bail for him to appear before the Court of Appeal at the hearing.

(8)If bail is granted under subsection (7)(b), the Crown Court may revoke the bail and remand the person in custody as referred to in subsection (7)(a).

(9)For the purpose of calculating the period referred to in subsection (2) or (6), the following are to be disregarded—

(a)Sunday,

(b)Christmas Day,

(c)Good Friday, and

(d)any day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom where the person is for the time being detained.

Annotations:

Commencement Information

I62S. 89 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

90Bail and custody during and after hearingE+W+N.I.

(1)The Court of Appeal may, at any adjournment of the hearing of an application under section 76(1) or (2)—

(a)remand the person to whom the application relates on bail, or

(b)remand him in custody.

(2)At a hearing at which the Court of Appeal—

(a)makes an order under section 77,

(b)makes a declaration under subsection (4) of that section, or

(c)dismisses the application or makes a declaration under subsection (3) of that section, if it also gives the prosecutor leave to appeal against its decision or the prosecutor gives notice that he intends to apply for such leave,

the court may make such order as it sees fit for the custody or bail of the acquitted person pending trial pursuant to the order or declaration, or pending determination of the appeal.

(3)For the purpose of subsection (2), the determination of an appeal is pending—

(a)until any application for leave to appeal is disposed of, or the time within which it must be made expires;

(b)if leave to appeal is granted, until the appeal is disposed of.

(4)Section 4 of the Bail Act 1976 (c. 63) applies in relation to the grant of bail under this section as if in subsection (2) the reference to the Crown Court included a reference to the Court of Appeal.

(5)The court may at any time, as it sees fit—

(a)revoke bail granted under this section and remand the person in custody, or

(b)vary an order under subsection (2).

Annotations:

Commencement Information

I63S. 90 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

91Revocation of bailE+W+N.I.

(1)Where—

(a)a court revokes a person’s bail under this Part, and

(b)that person is not before the court when his bail is revoked,

the court must order him to surrender himself forthwith to the custody of the court.

(2)Where a person surrenders himself into the custody of the court in compliance with an order under subsection (1), the court must remand him in custody.

(3)A person who has been ordered to surrender to custody under subsection (1) may be arrested without a warrant by an officer if he fails without reasonable cause to surrender to custody in accordance with the order.

(4)A person arrested under subsection (3) must be brought as soon as practicable, and, in any event, not more than 24 hours after he is arrested, before the court and the court must remand him in custody.

(5)For the purpose of calculating the period referred to in subsection (4), the following are to be disregarded—

(a)Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom where the person is for the time being detained.

Annotations:

Commencement Information

I64S. 91 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

Part 10: supplementaryE+W+N.I.

92Functions of the DPPE+W+N.I.

(1)Section 1(7) of the Prosecution of Offences Act 1985 (c. 23) (DPP’s functions exercisable by Crown Prosecutor) does not apply to the provisions of this Part other than section 85(2)(a).

(2)In the absence of the Director of Public Prosecutions, his functions under those provisions may be exercised by a person authorised by him.

(3)An authorisation under subsection (2)—

(a)may relate to a specified person or to persons of a specified description, and

(b)may be general or relate to a specified function or specified circumstances.

Annotations:

Commencement Information

I65S. 92 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

93Rules of courtE+W+N.I.

(1)Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

(2)Without limiting subsection (1), rules of court may in particular make provision as to procedures to be applied in connection with sections 76 to 82, 84 and 88 to 90.

(3)Nothing in this section is to be taken as affecting the generality of any enactment conferring power to make rules of court.

94Armed Forces: Part 10E+W

[F52(1)Section 323 of the Armed Forces Act 2006 (provision in consequence of criminal justice enactments) applies in relation to an enactment contained in this Part so far as relating to matters not specified in subsection (2) of section 324 of that Act as it applies in relation to a criminal justice enactment (within the meaning given by that section).]

(2)The power under [F53section 323 of that Act] to make provision equivalent to that made in relation to qualifying offences by an enactment contained in this Part (with or without modifications) includes power to make such provision in relation to such service offences as the Secretary of State thinks fit.

[F54(3)In subsection (2) “service offence” has the same meaning as in the Armed Forces Act 2006.]

Annotations:

Amendments (Textual)

F52S. 94(1) substituted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 214(2); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F53Words in s. 94(2) substituted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 214(3); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F54S. 94(3) substituted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 214(4); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information

I66S. 94 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

95Interpretation of Part 10E+W+N.I.

(1)In this Part—

  • the 1984 Act” means the Police and Criminal Evidence Act 1984 (c. 60),

“acquittal” and related expressions are to be read in accordance with section 75(7),

  • customs and excise officer” means an officer as defined by section 1(1) of the Customs and Excise Management Act 1979 (c. 2), or a person to whom section 8(2) of that Act applies,

  • new evidence” is to be read in accordance with section 78(2),

“officer”, except in section 83, means an officer of a police force or a customs and excise officer,

  • police force” has the meaning given by section 3(3) of the Prosecution of Offences Act 1985 (c. 23),

  • prosecutor” means an individual or body charged with duties to conduct criminal prosecutions,

  • qualifying offence” has the meaning given by section 75(8).

(2)Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (power by rules to distribute business of Court of Appeal between its civil and criminal divisions)—

(a)the jurisdiction of the Court of Appeal under this Part is to be exercised by the criminal division of that court, and

(b)references in this Part to the Court of Appeal are to be construed as references to that division.

(3)References in this Part to an officer of a specified rank or above are, in the case of a customs and excise officer, references to an officer of such description as—

(a)appears to the Commissioners of Customs and Excise to comprise officers of equivalent rank or above, and

(b)is specified by the Commissioners for the purposes of the provision concerned.

Annotations:

Commencement Information

I67S. 95 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to art. 2(2), Sch. 2)

96Application of Part 10 to Northern IrelandE+W+N.I.

(1)In its application to Northern Ireland this Part is to have effect subject to the modifications in this section.

(2)In sections 75(1)(a) and (b), 76(2)(a), 79(3) and 85(2)(a) for “England and Wales” substitute “ Northern Ireland ”.

(3)For section 75(2)(c) substitute—

(c)in respect of which, in proceedings where he has been found to be unfit to be tried in accordance with Article 49 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)), a finding has been made that he did the act or made the omission charged against him.

(4)In section 75(8) for “Part 1” substitute “ Part 2 ”.

(5)In section 81(1) for “Criminal Appeal Act 1968 (c. 19)” substitute “ Criminal Appeal (Northern Ireland) Act 1980 (c. 47) ”.

(6)In section 81(2)—

(a)for “33” substitute “ 31 ”, and

(b)for “An” substitute “ Subject to the provisions of this Part of this Act, an ”.

(7)In section 81(4)—

(a)for “34(2)” substitute “ 32(2) ”, and

(b)for “33(1B)” substitute “ 31(1B) ”.

(8)In section 82(10) after “enactment” in each place insert “ (including any provision of Northern Ireland legislation) ”.

(9)In section 84(1) and (2) for “preferred” substitute “ presented ”.

(10)Section 84(6) has effect—

(a)as if any reference to a provision of Part 11 were a reference to any corresponding provision contained in an Order in Council to which section 334(1) applies, at any time when such corresponding provision is in force;

(b)at any other time, with the omission of paragraphs (b) and (c).

(11)After section 84(6) insert—

(6A)Article 29 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)) applies in the case of a person who is to be tried in accordance with subsection (1) as if—

(a)he had been returned for trial for the offence in question, and

(b)the reference in paragraph (2)(a) of that Article to a magistrates' court included a reference to the Court of Appeal.

(12)In section 87—

(a)in subsection (3), for “Part 4 of the 1984 Act” substitute “ Part 5 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S. I. 1989/1341 (N. I. 12)) (“the 1989 Order”) ”,

(b)in paragraph (b) of that subsection, for “section 34(7) of that Act” substitute “ Article 35(8) of that Order ”,

(c)in subsection (6)—

(i)for the words from the beginning to “40(8) of that Act)” substitute “ Article 38 of that Order (including any provision of that Article as applied by Article 41(8) of that Order) ”,

(ii)for “subsection” in each place substitute “paragraph ,

(iii)in paragraph (e), for “subsections (7A), (7B) and (8)” substitute “ paragraph (8) ”, and

(iv)in paragraph (f), in the inserted paragraph (10A) omit “above”,

(d)for subsection (7) substitute—

(7)Article 41 of that Order has effect as if in paragraphs (8) and (9) of that Article after “(6)” there were inserted “and (10A).,

(e)in subsection (8)—

(i)for “Section 42 of that Act” substitute “ Article 43 of that Order ”, and

(ii)for “subsection (1) of that section” substitute “ paragraph (1) of that Article ”.

(13)For section 88(1) substitute—

(1)In relation to a person charged in accordance with section 87(4)—

(a)Article 39 of the 1989 Order (including any provision of that Article as applied by Article 41(10) of that Order) has effect as if, in paragraph (1), for “either on bail or without bail” there were substituted “ on bail ”,

(b)Article 48 of that Order has effect as if for paragraphs (1) to (11) there were substituted—

(1)A person who is released on bail shall be subject to a duty to appear before the Crown Court at such place as the custody officer may appoint and at such time, not later than 24 hours after the person is released, as that officer may appoint.

(2)The custody officer may require a person who is to be released on bail to enter into a recognisance conditioned upon his subsequent appearance before the Crown Court in accordance with paragraph (1).

(3)A recognisance under paragraph (2) may be taken before the custody officer., and

(c)Article 132A of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) does not apply.

(14)In section 88(2)—

(a)for paragraph (b) substitute—

(b)detained in a place of safety in pursuance of arrangements made under Article 39(6) of the 1989 Order,, and

(b)for “section 46 of the 1984 Act” substitute “ Article 47 of the 1989 Order ”.

(15)In section 89(6) for “section 81(5) of the Supreme Court Act 1981 (c. 54)” substitute “ section 51(8) of the Judicature (Northern Ireland) Act 1978 (c. 23) ”.

(16)For section 90(4) substitute—

(4)The court may at any time, as it sees fit, vary the conditions of bail granted under this section.

(17)In section 92(1) for the words from the beginning to “does” substitute “ Sections 30(4) and 36 of the Justice (Northern Ireland) Act 2002 (c. 26) do ”.

(18)Until the coming into force of section 36 of that Act of 2002 the reference to that section in subsection (17) is to be read as a reference to Article 4(8) of the Prosecution of Offences (Northern Ireland) Order 1972 (S.I. 1972/538 (N.I. 1)).

(19)In section 93(2) for “the Criminal Appeal Rules and the Crown Court Rules” substitute “ rules under section 55 of the Judicature (Northern Ireland) Act 1978 and Crown Court Rules ”.

(20)In section 93(3) after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

(21)In section 95(1) for the definition of “police force” substitute—

police force” means—

(a)the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,

(b)the Ministry of Defence Police,

(c)any body of constables appointed under Article 19 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)), or

(d)any body of special constables appointed in Northern Ireland under section 79 of the Harbours, Docks and Piers Clauses Act 1847 (c. 27) or section 57 of the Civil Aviation Act 1982 (c. 16),.

(22)Omit section 95(2).

97Application of Criminal Appeal Acts to proceedings under Part 10E+W+N.I.

[F55(1)]Subject to the provisions of this Part, the Secretary of State may make an order containing provision, in relation to proceedings [F56in England and Wales] before the Court of Appeal under this Part, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal Act 1968 (c. 19)F57. . . (subject to any specified modifications).

[F58(2)Subject to the provisions of this Part, the Department of Justice in Northern Ireland may make an order containing provision, in relation to proceedings in Northern Ireland before the Court of Appeal under this Part, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal (Northern Ireland) Act 1980 F59 (subject to any specified modifications).]

Part 11 E+WEvidence

Chapter 1E+WEvidence of bad character

IntroductoryE+W

98“Bad character”E+W

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a)has to do with the alleged facts of the offence with which the defendant is charged, or

(b)is evidence of misconduct in connection with the investigation or prosecution of that offence.

99Abolition of common law rulesE+W

(1)The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.

(2)Subsection (1) is subject to section 118(1) in so far as it preserves the rule under which in criminal proceedings a person’s reputation is admissible for the purposes of proving his bad character.

Persons other than defendantsE+W

100Non-defendant’s bad characterE+W

(1)In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

(a)it is important explanatory evidence,

(b)it has substantial probative value in relation to a matter which—

(i)is a matter in issue in the proceedings, and

(ii)is of substantial importance in the context of the case as a whole,

or

(c)all parties to the proceedings agree to the evidence being admissible.

(2)For the purposes of subsection (1)(a) evidence is important explanatory evidence if—

(a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b)its value for understanding the case as a whole is substantial.

(3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—

(a)the nature and number of the events, or other things, to which the evidence relates;

(b)when those events or things are alleged to have happened or existed;

(c)where—

(i)the evidence is evidence of a person’s misconduct, and

(ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

(d)where—

(i)the evidence is evidence of a person’s misconduct,

(ii)it is suggested that that person is also responsible for the misconduct charged, and

(iii)the identity of the person responsible for the misconduct charged is disputed,

the extent to which the evidence shows or tends to show that the same person was responsible each time.

(4)Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.

DefendantsE+W

101Defendant’s bad characterE+W

(1)In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—

(a)all parties to the proceedings agree to the evidence being admissible,

(b)the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c)it is important explanatory evidence,

(d)it is relevant to an important matter in issue between the defendant and the prosecution,

(e)it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f)it is evidence to correct a false impression given by the defendant, or

(g)the defendant has made an attack on another person’s character.

(2)Sections 102 to 106 contain provision supplementing subsection (1).

(3)The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4)On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

102“Important explanatory evidence”E+W

For the purposes of section 101(1)(c) evidence is important explanatory evidence if—

(a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b)its value for understanding the case as a whole is substantial.

103“Matter in issue between the defendant and the prosecution”E+W

(1)For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(a)the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b)the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2)Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—

(a)an offence of the same description as the one with which he is charged, or

(b)an offence of the same category as the one with which he is charged.

(3)Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4)For the purposes of subsection (2)—

(a)two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b)two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

(5)A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6)Only prosecution evidence is admissible under section 101(1)(d).

[F60(7)Where—

(a)a defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b)the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the trial for the offence with which the defendant is now charged (“the current offence”),

subsection (8) applies for the purpose of determining if the previous offence and the current offence are of the same description or category.

(8)For the purposes of subsection (2)—

(a)the previous offence is of the same description as the current offence if the corresponding offence is of that same description, as set out in subsection (4)(a);

(b)the previous offence is of the same category as the current offence if the current offence and the corresponding offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(9)For the purposes of subsection (10) “foreign service offence” means an offence which—

(a)was the subject of proceedings under the service law of a country outside the United Kingdom, and

(b)would constitute an offence under the law of England and Wales or a service offence (“the corresponding domestic offence”) if it were done in England and Wales by a member of Her Majesty's forces at the time of the trial for the offence with which the defendant is now charged (“the current offence”).

(10)Where a defendant has been found guilty of a foreign service offence (“the previous service offence”), for the purposes of subsection (2)—

(a)the previous service offence is an offence of the same description as the current offence if the corresponding domestic offence is of that same description, as set out in subsection (4)(a);

(b)the previous service offence is an offence of the same category as the current offence if the current offence and the corresponding domestic offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(11)In this section—

  • Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006;

  • service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country.]

104“Matter in issue between the defendant and a co-defendant”E+W

(1)Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.

(2)Only evidence—

(a)which is to be (or has been) adduced by the co-defendant, or

(b)which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,

is admissible under section 101(1)(e).

105“Evidence to correct a false impression”E+W

(1)For the purposes of section 101(1)(f)—

(a)the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;

(b)evidence to correct such an impression is evidence which has probative value in correcting it.

(2)A defendant is treated as being responsible for the making of an assertion if—

(a)the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),

(b)the assertion was made by the defendant—

(i)on being questioned under caution, before charge, about the offence with which he is charged, or

(ii)on being charged with the offence or officially informed that he might be prosecuted for it,

and evidence of the assertion is given in the proceedings,

(c)the assertion is made by a witness called by the defendant,

(d)the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or

(e)the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

(3)A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.

(4)Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(5)In subsection (4) “conduct” includes appearance or dress.

(6)Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.

(7)Only prosecution evidence is admissible under section 101(1)(f).

106“Attack on another person’s character”E+W

(1)For the purposes of section 101(1)(g) a defendant makes an attack on another person’s character if—

(a)he adduces evidence attacking the other person’s character,

(b)he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or

(c)evidence is given of an imputation about the other person made by the defendant—

(i)on being questioned under caution, before charge, about the offence with which he is charged, or

(ii)on being charged with the offence or officially informed that he might be prosecuted for it.

(2)In subsection (1) “evidence attacking the other person’s character” means evidence to the effect that the other person—

(a)has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or

(b)has behaved, or is disposed to behave, in a reprehensible way;

and “imputation about the other person” means an assertion to that effect.

(3)Only prosecution evidence is admissible under section 101(1)(g).

107Stopping the case where evidence contaminatedE+W

(1)If on a defendant’s trial before a judge and jury for an offence—

(a)evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(b)the court is satisfied at any time after the close of the case for the prosecution that—

(i)the evidence is contaminated, and

(ii)the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

(2)Where—

(a)a jury is directed under subsection (1) to acquit a defendant of an offence, and

(b)the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,

the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.

(3)If—

(a)a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,

(b)evidence of the person’s bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(c)the court is satisfied at any time after the close of the case for the prosecution that—

(i)the evidence is contaminated, and

(ii)the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.

(4)This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.

(5)For the purposes of this section a person’s evidence is contaminated where—

(a)as a result of an agreement or understanding between the person and one or more others, or

(b)as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings,

the evidence is false or misleading in any respect, or is different from what it would otherwise have been.

108Offences committed by defendant when a childE+W

(1)Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) shall cease to have effect.

(2)In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless—

(a)both of the offences are triable only on indictment, and

(b)the court is satisfied that the interests of justice require the evidence to be admissible.

[F61(2A)Subsection (2B) applies where—

(a)the defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b)the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the proceedings for the offence with which the defendant is now charged.

(2B)For the purposes of subsection (2), the previous offence is to be regarded as triable only on indictment if the corresponding offence is so triable.]

(3)Subsection (2) applies in addition to section 101.

GeneralE+W

109Assumption of truth in assessment of relevance or probative valueE+W

(1)Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true.

(2)In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.

110Court’s duty to give reasons for rulingsE+W

(1)Where the court makes a relevant ruling—

(a)it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;

(b)if it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court’s proceedings.

(2)In this section “relevant ruling” means—

(a)a ruling on whether an item of evidence is evidence of a person’s bad character;

(b)a ruling on whether an item of such evidence is admissible under section 100 or 101 (including a ruling on an application under section 101(3));

(c)a ruling under section 107.

111Rules of courtE+W

(1)Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules.

(2)The rules may, and, where the party in question is the prosecution, must, contain provision requiring a party who—

(a)proposes to adduce evidence of a defendant’s bad character, or

(b)proposes to cross-examine a witness with a view to eliciting such evidence,

to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.

(3)The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).

(4)In considering the exercise of its powers with respect to costs, the court may take into account any failure by a party to comply with a requirement imposed by virtue of subsection (2) and not dispensed with by virtue of subsection (3).

(5)The rules may—

(a)limit the application of any provision of the rules to prescribed circumstances;

(b)subject any provision of the rules to prescribed exceptions;

(c)make different provision for different cases or circumstances.

(6)Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.

[F62(7)In this section “prescribed” means prescribed by rules of court.]

112Interpretation of Chapter 1E+W

(1)In this Chapter—

  • bad character” is to be read in accordance with section 98;

  • criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

  • defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings; and “co-defendant”, in relation to a defendant, means a person charged with an offence in the same proceedings;

  • important matter” means a matter of substantial importance in the context of the case as a whole;

  • misconduct” means the commission of an offence or other reprehensible behaviour;

  • offence” includes a service offence;

“probative value”, and “relevant” (in relation to an item of evidence), are to be read in accordance with section 109;

  • prosecution evidence” means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution;

  • [F63service offence” has the same meaning as in the Armed Forces Act 2006;]

  • written charge” has the same meaning as in section 29 and also includes an information.

(2)Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.

(3)Nothing in this Chapter affects the exclusion of evidence—

(a)under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18) against a party impeaching the credit of his own witness by general evidence of bad character,

(b)under section 41 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (restriction on evidence or questions about complainant’s sexual history), or

(c)on grounds other than the fact that it is evidence of a person’s bad character.

Annotations:

Amendments (Textual)

F63S. 112(1): definition of "service offence" substituted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 215; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

113Armed forcesE+W

Schedule 6 (armed forces) has effect.

Chapter 2E+WHearsay evidence

Hearsay: main provisionsE+W

114Admissibility of hearsay evidenceE+W

(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

(a)any provision of this Chapter or any other statutory provision makes it admissible,

(b)any rule of law preserved by section 118 makes it admissible,

(c)all parties to the proceedings agree to it being admissible, or

(d)the court is satisfied that it is in the interests of justice for it to be admissible.

(2)In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d)the circumstances in which the statement was made;

(e)how reliable the maker of the statement appears to be;

(f)how reliable the evidence of the making of the statement appears to be;

(g)whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h)the amount of difficulty involved in challenging the statement;

(i)the extent to which that difficulty would be likely to prejudice the party facing it.

(3)Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.

Annotations:

Commencement Information

I68S. 114 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

115Statements and matters statedE+W

(1)In this Chapter references to a statement or to a matter stated are to be read as follows.

(2)A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3)A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

(a)to cause another person to believe the matter, or

(b)to cause another person to act or a machine to operate on the basis that the matter is as stated.

Annotations:

Commencement Information

I69S. 115 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

Principal categories of admissibilityE+W

116Cases where a witness is unavailableE+W

(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b)the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c)any of the five conditions mentioned in subsection (2) is satisfied.

(2)The conditions are—

(a)that the relevant person is dead;

(b)that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c)that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d)that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e)that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3)For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4)Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a)to the statement’s contents,

(b)to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c)in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d)to any other relevant circumstances.

(5)A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a)by the person in support of whose case it is sought to give the statement in evidence, or

(b)by a person acting on his behalf,

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

Annotations:

Commencement Information

I70S. 116 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

117Business and other documentsE+W

(1)In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings would be admissible as evidence of that matter,

(b)the requirements of subsection (2) are satisfied, and

(c)the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

(2)The requirements of this subsection are satisfied if—

(a)the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

(b)the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c)each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

(3)The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

(4)The additional requirements of subsection (5) must be satisfied if the statement—

(a)was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but

(b)was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 (c. 32) or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c. 33) (which relate to overseas evidence).

(5)The requirements of this subsection are satisfied if—

(a)any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or

(b)the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

(6)A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).

(7)The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of—

(a)its contents,

(b)the source of the information contained in it,

(c)the way in which or the circumstances in which the information was supplied or received, or

(d)the way in which or the circumstances in which the document concerned was created or received.

Annotations:

Commencement Information

I71S. 117 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

118Preservation of certain common law categories of admissibilityE+W

(1)The following rules of law are preserved.

Public information etc

1   Any rule of law under which in criminal proceedings—

(a)published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,

(b)public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,

(c)records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them, or

(d)evidence relating to a person’s age or date or place of birth may be given by a person without personal knowledge of the matter.

Reputation as to character

2   Any rule of law under which in criminal proceedings evidence of a person’s reputation is admissible for the purpose of proving his good or bad character.

Note

The rule is preserved only so far as it allows the court to treat such evidence as proving the matter concerned.

Reputation or family tradition

3   Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—

(a)pedigree or the existence of a marriage,

(b)the existence of any public or general right, or

(c)the identity of any person or thing.

Note

The rule is preserved only so far as it allows the court to treat such evidence as proving or disproving the matter concerned.

Res gestae

4   Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

(a)the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

(b)the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or

(c)the statement relates to a physical sensation or a mental state (such as intention or emotion).

Confessions etc

5   Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings.

Admissions by agents etc

6   Any rule of law under which in criminal proceedings—

(a)an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or

(b)a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

Common enterprise

7   Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.

Expert evidence

8   Any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field.

(2)With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished.

Annotations:

Commencement Information

I72S. 118 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

119Inconsistent statementsE+W

(1)If in criminal proceedings a person gives oral evidence and—

(a)he admits making a previous inconsistent statement, or

(b)a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),

the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

(2)If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible.

Annotations:

Commencement Information

I73S. 119 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

120Other previous statements of witnessesE+W

(1)This section applies where a person (the witness) is called to give evidence in criminal proceedings.

(2)If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.

(3)A statement made by the witness in a document—

(a)which is used by him to refresh his memory while giving evidence,

(b)on which he is cross-examined, and

(c)which as a consequence is received in evidence in the proceedings,

is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

(4)A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—

(a)any of the following three conditions is satisfied, and

(b)while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.

(5)The first condition is that the statement identifies or describes a person, object or place.

(6)The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.

(7)The third condition is that—

(a)the witness claims to be a person against whom an offence has been committed,

(b)the offence is one to which the proceedings relate,

(c)the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,

(d)F64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)the complaint was not made as a result of a threat or a promise, and

(f)before the statement is adduced the witness gives oral evidence in connection with its subject matter.

(8)For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.

Annotations:

Amendments (Textual)

Commencement Information

I74S. 120 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

SupplementaryE+W

121Additional requirement for admissibility of multiple hearsayE+W

(1)A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—

(a)either of the statements is admissible under section 117, 119 or 120,

(b)all parties to the proceedings so agree, or

(c)the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

(2)In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.

Annotations:

Commencement Information

I75S. 121 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

122Documents produced as exhibitsE+W

(1)This section applies if on a trial before a judge and jury for an offence—

(a)a statement made in a document is admitted in evidence under section 119 or 120, and

(b)the document or a copy of it is produced as an exhibit.

(2)The exhibit must not accompany the jury when they retire to consider their verdict unless—

(a)the court considers it appropriate, or

(b)all the parties to the proceedings agree that it should accompany the jury.

Annotations:

Commencement Information

I76S. 122 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

123Capability to make statementE+W

(1)Nothing in section 116, 119 or 120 makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement.

(2)Nothing in section 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(2) to be satisfied, must at any time have supplied or received the information concerned or created or received the document or part concerned—

(a)did not have the required capability at that time, or

(b)cannot be identified but cannot reasonably be assumed to have had the required capability at that time.

(3)For the purposes of this section a person has the required capability if he is capable of—

(a)understanding questions put to him about the matters stated, and

(b)giving answers to such questions which can be understood.

(4)Where by reason of this section there is an issue as to whether a person had the required capability when he made a statement—

(a)proceedings held for the determination of the issue must take place in the absence of the jury (if there is one);

(b)in determining the issue the court may receive expert evidence and evidence from any person to whom the statement in question was made;

(c)the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.

Annotations:

Commencement Information

I77S. 123 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

124CredibilityE+W

(1)This section applies if in criminal proceedings—

(a)a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and

(b)the maker of the statement does not give oral evidence in connection with the subject matter of the statement.

(2)In such a case—

(a)any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;

(b)evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;

(c)evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.

(3)If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.

(4)In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned is to be treated as the maker of the statement for the purposes of subsections (1) to (3) above.

Annotations:

Commencement Information

I78S. 124 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

125Stopping the case where evidence is unconvincingE+W

(1)If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that—

(a)the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and

(b)the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

(2)Where—

(a)a jury is directed under subsection (1) to acquit a defendant of an offence, and

(b)the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,

the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1) in respect of it.

(3)If—

(a)a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged, and

(b)the court is satisfied as mentioned in subsection (1) above at any time after the close of the case for the prosecution that—

(i)the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and

(ii)the evidence provided by the statement is so unconvincing that, considering its importance to the case against the person, a finding that he did the act or made the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.

(4)This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.

Annotations:

Commencement Information

I79S. 125 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

126Court’s general discretion to exclude evidenceE+W

(1)In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if—

(a)the statement was made otherwise than in oral evidence in the proceedings, and

(b)the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

(2)Nothing in this Chapter prejudices—

(a)any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or

(b)any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).

Annotations:

Commencement Information

I80S. 126 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

MiscellaneousE+W

127Expert evidence: preparatory work.E+W

(1)This section applies if—

(a)a statement has been prepared for the purposes of criminal proceedings,

(b)the person who prepared the statement had or may reasonably be supposed to have had personal knowledge of the matters stated,

(c)notice is given under the appropriate rules that another person (the expert) will in evidence given in the proceedings orally or under section 9 of the Criminal Justice Act 1967 (c. 80) base an opinion or inference on the statement, and

(d)the notice gives the name of the person who prepared the statement and the nature of the matters stated.

(2)In evidence given in the proceedings the expert may base an opinion or inference on the statement.

(3)If evidence based on the statement is given under subsection (2) the statement is to be treated as evidence of what it states.

(4)This section does not apply if the court, on an application by a party to the proceedings, orders that it is not in the interests of justice that it should apply.

(5)The matters to be considered by the court in deciding whether to make an order under subsection (4) include—

(a)the expense of calling as a witness the person who prepared the statement;

(b)whether relevant evidence could be given by that person which could not be given by the expert;

(c)whether that person can reasonably be expected to remember the matters stated well enough to give oral evidence of them.

(6)Subsections (1) to (5) apply to a statement prepared for the purposes of a criminal investigation as they apply to a statement prepared for the purposes of criminal proceedings, and in such a case references to the proceedings are to criminal proceedings arising from the investigation.

(7)The appropriate rules are [F65Criminal Procedure Rules made by virtue of]

(a)F66. . . section 81 of the Police and Criminal Evidence Act 1984 (advance notice of expert evidence in Crown Court), or

(b)F67. . . section 20(3) of the Criminal Procedure and Investigations Act 1996 (c. 25) (advance notice of expert evidence in magistrates' courts).

128ConfessionsE+W

(1)In the Police and Criminal Evidence Act 1984 (c. 60) the following section is inserted after section 76—

76AConfessions may be given in evidence for co-accused

(1)In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2)If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—

(a)by oppression of the person who made it; or

(b)in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.

(3)Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities.

(4)The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—

(a)of any facts discovered as a result of the confession; or

(b)where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

(5)Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.

(6)Subsection (5) above applies—

(a)to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and

(b)to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.

(7)In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

(2)Subject to subsection (1), nothing in this Chapter makes a confession by a defendant admissible if it would not be admissible under section 76 of the Police and Criminal Evidence Act 1984 (c. 60).

(3)In subsection (2) “confession” has the meaning given by section 82 of that Act.

Annotations:

Commencement Information

I82S. 128 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

129Representations other than by a personE+W

(1)Where a representation of any fact—

(a)is made otherwise than by a person, but

(b)depends for its accuracy on information supplied (directly or indirectly) by a person,

the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate.

(2)Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.

Annotations:

Commencement Information

I83S. 129 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

130DepositionsE+W

In Schedule 3 to the Crime and Disorder Act 1998 (c. 37), sub-paragraph (4) of paragraph 5 is omitted (power of the court to overrule an objection to a deposition being read as evidence by virtue of that paragraph).

Annotations:

Commencement Information

I84S. 130 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

131Evidence at retrialE+W

For paragraphs 1 and 1A of Schedule 2 to the Criminal Appeal Act 1968 (c. 19) (oral evidence and use of transcripts etc at retrials under that Act) there is substituted—

Evidence

1(1)Evidence given at a retrial must be given orally if it was given orally at the original trial, unless—

(a)all the parties to the retrial agree otherwise;

(b)section 116 of the Criminal Justice Act 2003 applies (admissibility of hearsay evidence where a witness is unavailable); or

(c)the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) of that Act applies (admission of hearsay evidence under residual discretion).

(2)Paragraph 5 of Schedule 3 to the Crime and Disorder Act 1998 (use of depositions) does not apply at a retrial to a deposition read as evidence at the original trial.

Annotations:

Commencement Information

I85S. 131 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

GeneralE+W

132Rules of courtE+W

(1)Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Chapter; and the appropriate authority is the authority entitled to make the rules.

(2)The rules may make provision about the procedure to be followed and other conditions to be fulfilled by a party proposing to tender a statement in evidence under any provision of this Chapter.

(3)The rules may require a party proposing to tender the evidence to serve on each party to the proceedings such notice, and such particulars of or relating to the evidence, as may be prescribed.

(4)The rules may provide that the evidence is to be treated as admissible by agreement of the parties if—

(a)a notice has been served in accordance with provision made under subsection (3), and

(b)no counter-notice in the prescribed form objecting to the admission of the evidence has been served by a party.

(5)If a party proposing to tender evidence fails to comply with a prescribed requirement applicable to it—

(a)the evidence is not admissible except with the court’s leave;

(b)where leave is given the court or jury may draw such inferences from the failure as appear proper;

(c)the failure may be taken into account by the court in considering the exercise of its powers with respect to costs.

(6)In considering whether or how to exercise any of its powers under subsection (5) the court shall have regard to whether there is any justification for the failure to comply with the requirement.

(7)A person shall not be convicted of an offence solely on an inference drawn under subsection (5)(b).

(8)Rules under this section may—

(a)limit the application of any provision of the rules to prescribed circumstances;

(b)subject any provision of the rules to prescribed exceptions;

(c)make different provision for different cases or circumstances.

(9)Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.

[F68(10)In this section “prescribed” means prescribed by rules of court]

133Proof of statements in documentsE+W

Where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either—

(a)the document, or

(b)(whether or not the document exists) a copy of the document or of the material part of it,

authenticated in whatever way the court may approve.

Annotations:

Commencement Information

I86S. 133 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

134Interpretation of Chapter 2E+W

(1)In this Chapter—

  • copy”, in relation to a document, means anything on to which information recorded in the document has been copied, by whatever means and whether directly or indirectly;

  • criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

  • defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings;

  • document” means anything in which information of any description is recorded;

  • oral evidence” includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;

  • statutory provision” means any provision contained in, or in an instrument made under, this or any other Act, including any Act passed after this Act.

(2)Section 115 (statements and matters stated) contains other general interpretative provisions.

(3)Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter has effect as if each offence were charged in separate proceedings.

Annotations:

Commencement Information

I87S. 134 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

135Armed forcesE+W

Schedule 7 (hearsay evidence: armed forces) has effect.

Annotations:

Commencement Information

I88S. 135 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

136Repeals etcE+W

In the Criminal Justice Act 1988 (c. 33), the following provisions (which are to some extent superseded by provisions of this Chapter) are repealed—

(a)Part 2 and Schedule 2 (which relate to documentary evidence);

(b)in Schedule 13, paragraphs 2 to 5 (which relate to documentary evidence in service courts etc).

Annotations:

Commencement Information

I89S. 136 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)

Chapter 3E+WMiscellaneous and supplemental

Prospective

137Evidence by video recordingE+W

(1)This section applies where—

(a)a person is called as a witness in proceedings for an offence triable only on indictment, or for a prescribed offence triable either way,

(b)the person claims to have witnessed (whether visually or in any other way)—

(i)events alleged by the prosecution to include conduct constituting the offence or part of the offence, or

(ii)events closely connected with such events,

(c)he has previously given an account of the events in question (whether in response to questions asked or otherwise),

(d)the account was given at a time when those events were fresh in the person’s memory (or would have been, assuming the truth of the claim mentioned in paragraph (b)),

(e)a video recording was made of the account,

(f)the court has made a direction that the recording should be admitted as evidence in chief of the witness, and the direction has not been rescinded, and

(g)the recording is played in the proceedings in accordance with the direction.

(2)If, or to the extent that, the witness in his oral evidence in the proceedings asserts the truth of the statements made by him in the recorded account, they shall be treated as if made by him in that evidence.

(3)A direction under subsection (1)(f)—

(a)may not be made in relation to a recorded account given by the defendant;

(b)may be made only if it appears to the court that—

(i)the witness’s recollection of the events in question is likely to have been significantly better when he gave the recorded account than it will be when he gives oral evidence in the proceedings, and

(ii)it is in the interests of justice for the recording to be admitted, having regard in particular to the matters mentioned in subsection (4).

(4)Those matters are—

(a)the interval between the time of the events in question and the time when the recorded account was made;

(b)any other factors that might affect the reliability of what the witness said in that account;

(c)the quality of the recording;

(d)any views of the witness as to whether his evidence in chief should be given orally or by means of the recording.

(5)For the purposes of subsection (2) it does not matter if the statements in the recorded account were not made on oath.

(6)In this section “prescribed” means of a description specified in an order made by the Secretary of State.

Prospective

138Video evidence: further provisionsE+W

[F69Where a video recording is admitted under section 137, the witness may not give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, has been dealt with adequately in the recorded account.]

(2)The reference in subsection (1)(f) of section 137 to the admission of a recording includes a reference to the admission of part of the recording; and references in that section and this one to the video recording or to the witness’s recorded account shall, where appropriate, be read accordingly.

(3)In considering whether any part of a recording should be not admitted under section 137, the court must consider—

(a)whether admitting that part would carry a risk of prejudice to the defendant, and

(b)if so, whether the interests of justice nevertheless require it to be admitted in view of the desirability of showing the whole, or substantially the whole, of the recorded interview.

(4)A court may not make a direction under section 137(1)(f) in relation to any proceedings unless—

(a)the Secretary of State has notified the court that arrangements can be made, in the area in which it appears to the court that the proceedings will take place, for implementing directions under that section, and

(b)the notice has not been withdrawn.

(5)Nothing in section 137 affects the admissibility of any video recording which would be admissible apart from that section.

Annotations:

Amendments (Textual)

139Use of documents to refresh memoryE+W

(1)A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—

(a)he states in his oral evidence that the document records his recollection of the matter at that earlier time, and

(b)his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.

(2)Where—

(a)a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,

(b)his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and

(c)a transcript has been made of the sound recording,

he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.

Annotations:

Commencement Information

I90S. 139 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

140Interpretation of Chapter 3E+W

In this Chapter—

  • criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

  • defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings;

  • document” means anything in which information of any description is recorded, but not including any recording of sounds or moving images;

  • oral evidence” includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;

  • video recording” means any recording, on any medium, from which a moving image may by any means be produced, and includes the accompanying sound-track.

Annotations:

Commencement Information

I91S. 140 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

141SavingE+W

No provision of this Part has effect in relation to criminal proceedings begun before the commencement of that provision.

Annotations:

Commencement Information

I92S. 141 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

Part 12 E+W+S+N.I.Sentencing

Annotations:

Modifications etc. (not altering text)

Chapter 1E+WGeneral provisions about sentencing

Annotations:

Modifications etc. (not altering text)

Matters to be taken into account in sentencingE+W

142Purposes of sentencingE+W

(1)Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing—

(a)the punishment of offenders,

(b)the reduction of crime (including its reduction by deterrence),

(c)the reform and rehabilitation of offenders,

(d)the protection of the public, and

(e)the making of reparation by offenders to persons affected by their offences.

(2)Subsection (1) does not apply—

(a)in relation to an offender who is aged under 18 at the time of conviction,

(b)to an offence the sentence for which is fixed by law,

(c)to an offence the sentence for which falls to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain firearms offences), under subsection (2) of section 110 or 111 of the Sentencing Act (required custodial sentences) [F70, under section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon)] or under [F71 section 225(2) or 226(2) ] of this Act (dangerous offenders), or

(d)in relation to the making under Part 3 of the Mental Health Act 1983 (c. 20) of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction.

(3)In this Chapter “sentence”, in relation to an offence, includes any order made by a court when dealing with the offender in respect of his offence; and “sentencing” is to be construed accordingly.

Annotations:

Amendments (Textual)

Commencement Information

I93S. 142 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

Prospective

[F72142APurposes etc. of sentencing: offenders under 18E+W
Annotations:

Amendments (Textual)

(1)This section applies where a court is dealing with an offender aged under 18 in respect of an offence.

(2)The court must have regard to—

(a)the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37(1) of the Crime and Disorder Act 1998),

(b)in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender, and

(c)the purposes of sentencing mentioned in subsection (3) (so far as it is not required to do so by paragraph (a)).

(3)Those purposes of sentencing are—

(a)the punishment of offenders,

(b)the reform and rehabilitation of offenders,

(c)the protection of the public, and

(d)the making of reparation by offenders to persons affected by their offences.

(4)This section does not apply—

(a)to an offence the sentence for which is fixed by law,

(b)to an offence the sentence for which falls to be imposed under—

(i)section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences),

(ii)section 29(6) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon), or

(iii)section 226(2) of this Act (detention for life for certain dangerous offenders), or

(c)in relation to the making under Part 3 of the Mental Health Act 1983 of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction.]

143Determining the seriousness of an offenceE+W

(1)In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.

(2)In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—

(a)the nature of the offence to which the conviction relates and its relevance to the current offence, and

(b)the time that has elapsed since the conviction.

(3)In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

(4)Any reference in subsection (2) to a previous conviction is to be read as a reference to—

(a)a previous conviction by a court in the United Kingdom, F73. . .

[F74(aa)a previous conviction by a court in another member State of a relevant offence under the law of that State,]

[F75(b)a previous conviction of a service offence within the meaning of the Armed Forces Act 2006 (“conviction” here including anything that under section 376(1) and (2) of that Act is to be treated as a conviction).]

[F76or

(c)a finding of guilt in respect of a member State service offence.]

[F77(5)Subsections (2) and (4) do not prevent the court from treating—

(a)a previous conviction by a court outside both the United Kingdom and any other member State, or

(b)a previous conviction by a court in any member State (other than the United Kingdom) of an offence which is not a relevant offence,

as an aggravating factor in any case where the court considers it appropriate to do so.

(6)For the purposes of this section—

(a)an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction of the defendant for the current offence,

(b)member State service offence” means an offence which—

(i)was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii)would constitute an offence under the law of any part of the United Kingdom, or a service offence (within the meaning of the Armed Forces Act 2006), if it were done in any part of the United Kingdom, by a member of Her Majesty's forces, at the time of the conviction of the defendant for the current offence,

(c)Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006, and

(d)service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.]

Annotations:

Amendments (Textual)

F75S. 143(4)(b) substituted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383, Sch. 16 para. 216; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

Commencement Information

I94S. 143 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

144Reduction in sentences for guilty pleasE+W

(1)In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account—

(a)the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b)the circumstances in which this indication was given.

(2)In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that subsection prevents the court, after taking into account any matter referred to in subsection (1) of this section, from imposing any sentence which is not less than 80 per cent of that specified in that subsection.

Annotations:

Commencement Information

I95S. 144 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

145Increase in sentences for racial or religious aggravationE+W

(1)This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).

(2)If the offence was racially or religiously aggravated, the court—

(a)must treat that fact as an aggravating factor, and

(b)must state in open court that the offence was so aggravated.

(3)Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.

Annotations:

Commencement Information

I96S. 145 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

146Increase in sentences for aggravation related to disability or sexual orientationE+W

(1)This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

(2)Those circumstances are—

(a)that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i)the sexual orientation (or presumed sexual orientation) of the victim, or

(ii)a disability (or presumed disability) of the victim, or

(b)that the offence is motivated (wholly or partly)—

(i)by hostility towards persons who are of a particular sexual orientation, or

(ii)by hostility towards persons who have a disability or a particular disability.

(3)The court—

(a)must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and

(b)must state in open court that the offence was committed in such circumstances.

(4)It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

(5)In this section “disability” means any physical or mental impairment.

Annotations:

Commencement Information

I97S. 146 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

General restrictions on community sentencesE+W

147Meaning of “community sentence” etc.E+W

(1)In this Part “community sentence” means a sentence which consists of or includes—

(a)a community order (as defined by section 177), or

(b)F78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F79(c)a youth rehabilitation order.]

(2)F80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

148Restrictions on imposing community sentencesE+W

(1)A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2)Where a court passes a community sentence F81. . . —

(a)the particular requirement or requirements forming part of the community order [F82, or, as the case may be, youth rehabilitation order, comprised in the sentence] must be such as, in the opinion of the court, is, or taken together are, the most suitable for the offender, and

(b)the restrictions on liberty imposed by the order must be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

[F83(2A)Subsection (2) is subject to paragraph 3(4) of Schedule 1 to the Criminal Justice and Immigration Act 2008 (youth rehabilitation order with intensive supervision and surveillance).]

(3)F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsections (1) and (2)(b) have effect subject to section 151(2).

[F85(5)The fact that by virtue of any provision of this section—

(a)a community sentence may be passed in relation to an offence; or

(b)particular restrictions on liberty may be imposed by a community order or youth rehabilitation order,

does not require a court to pass such a sentence or to impose those restrictions.]

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C9S. 148 excluded (4.4.2010) by Powers of Criminal Courts (Sentencing) Act 2000 (c. 6), Sch. 3 paras. 7(5), 8(3) (as substituted by Criminal Justice Act 2003 (c. 44), ss. 304, 336, Sch. 32 para. 125; S.I. 2005/950, art. 4 (subject to Sch. 2)) (as amended by S.I. 2007/391, art. 2 (which S.I. was revoked by S.I. 2009/616, art. 3) (which S.I. was revoked by S.I. 2009/3111, art. 2)) (as amended (3.4.2009) by S.I. 2009/616, arts. 1, 2) (as amended (30.11.2009) by S.I. 2009/3111, arts. 1, 2))

Commencement Information

I99S. 148 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

149Passing of community sentence on offender remanded in custodyE+W

(1)In determining the restrictions on liberty to be imposed by a community order or [F86youth rehabilitation order] in respect of an offence, the court may have regard to any period for which the offender has been remanded in custody in connection with the offence or any other offence the charge for which was founded on the same facts or evidence.

(2)In subsection (1) “remanded in custody” has the meaning given by section 242(2).

Annotations:

Amendments (Textual)

Commencement Information

I100S. 149 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 7 (subject to art. 2(2), Sch. 2)

150Community sentence not available where sentence fixed by law etc.E+W

The power to make a community order or [F87youth rehabilitation order] is not exercisable in respect of an offence for which the sentence—

(a)is fixed by law,

(b)falls to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27) (required custodial sentence for certain firearms offences),

(c)falls to be imposed under section 110(2) or 111(2) of the Sentencing Act (requirement to impose custodial sentences for certain repeated offences committed by offenders aged 18 or over), F88. . .

[F89(ca)falls to be imposed under section 29(4) or (6) of the Violent Crime Reduction Act 2006 (required custodial sentence in certain cases of using someone to mind a weapon), or]

(d)falls to be imposed under [F90section 225(2) or 226(2) of this Act (requirement to impose sentence of imprisonment for life or detention for life)]

Annotations:

Amendments (Textual)