Section 77: Applications
425.Subsection (1) provides that an application must be made to a justice of the peace. A justice of the peace includes any person acting as such, whether a lay justice, or a judge who is a District Judge (Magistrates’ Court) (see section 25 of the Courts Act 2003), or a Crown Court judge (see section 66 of the Courts Act 2003).
426.The subsection also restricts the availability of investigation anonymity orders to investigating authorities and certain prosecutors. Only certain persons in those organisations (and persons to whom they delegate the function under section 81) may apply for an order. Those persons are described in subsection (1)(a) to (g):
in a case where a police force in England and Wales is conducting the qualifying criminal investigation, the chief officer of police of the police force;
in a case where the British Transport Police Force is conducting the qualifying criminal investigation, the Chief Constable of the British Transport Police Force;
in a case where the Serious Organised Crime Agency is conducting the qualifying criminal investigation, the Director General of the Serious Organised Crime Agency;
in a case where the Police Service of Northern Ireland is conducting the qualifying criminal investigation, the Chief Constable of the Police Service of Northern Ireland;
the Director of Public Prosecutions;
the Director of Revenue and Customs Prosecutions; and
the Director of Public Prosecutions for Northern Ireland.
427.Subsection (2) makes it clear that the applicant is not obliged to give notice of the application to a suspect or someone who has been charged with an offence subject to a qualifying criminal investigation (or their legal representatives). Such notice could defeat the purpose of the order.
428.Subsection (3) requires the applicant to inform the justice of the peace of the identity of the person whose identity is to be protected by the investigation anonymity order. However, the justice of the peace can direct the identity of that person to be withheld.
429.Subsection (4) permits a justice of the peace to grant an application on the papers, without an oral hearing. The Government expects, however, that in the vast majority of cases there will be an oral hearing.
430.Subsection (5) provides that where a justice of the peace determines an application without a hearing the designated officer in relation to that justice of the peace must notify the applicant about the decision, and subsection (6) makes similar provision for Northern Ireland.
431.Subsection (7) provides the Secretary of State with a power to amend subsection (1) by order. This will allow the persons who may make an application to be altered. There may for example be amendments because of changes to investigating or prosecuting organisations. The order-making power will also allow for consequential changes for example to section 81 (see subsection (8)).