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PART 1THE OVERRIDING OBJECTIVE

Contents of this Part
The overriding objectiverule 1.1
The duty of the participants in a criminal caserule 1.2
The application by the court of the overriding objectiverule 1.3

The overriding objective

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(a)acquitting the innocent and convicting the guilty;

(b)dealing with the prosecution and the defence fairly;

(c)recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(d)respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e)dealing with the case efficiently and expeditiously;

(f)ensuring that appropriate information is available to the court when bail and sentence are considered; and

(g)dealing with the case in ways that take into account―

(i)the gravity of the offence alleged,

(ii)the complexity of what is in issue,

(iii)the severity of the consequences for the defendant and others affected, and

(iv)the needs of other cases.

The duty of the participants in a criminal case

1.2.—(1) Each participant, in the conduct of each case, must―

(a)prepare and conduct the case in accordance with the overriding objective;

(b)comply with these Rules, practice directions and directions made by the court; and

(c)at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

The application by the court of the overriding objective

1.3.  The court must further the overriding objective in particular when―

(a)exercising any power given to it by legislation (including these Rules);

(b)applying any practice direction; or

(c)interpreting any rule or practice direction.

PART 2UNDERSTANDING AND APPLYING THE RULES

Contents of this Part
When the Rules applyrule 2.1
Definitionsrule 2.2
References to Acts of Parliament and to Statutory Instrumentsrule 2.3

When the Rules apply

2.1.—(1) In general, Criminal Procedure Rules apply―

(a)in all criminal cases in magistrates’ courts and in the Crown Court;

(b)in extradition cases in the High Court; and

(c)in all cases in the criminal division of the Court of Appeal.

(2) If a rule applies only in one or some of those courts, the rule makes that clear.

(3) These Rules apply on and after 5th October, 2015, but―

(a)unless the court otherwise directs, they do not affect a right or duty existing under the Criminal Procedure Rules 2014(1); and

(b)unless the High Court otherwise directs, Section 3 of Part 50 (Extradition – appeal to the High Court) does not apply to a case in which notice of an appeal was given before 6th October, 2014.

(4) In a case in which a request for extradition was received by a relevant authority in the United Kingdom on or before 31st December, 2003―

(a)the rules in Part 50 (Extradition) do not apply; and

(b)the rules in Part 17 of the Criminal Procedure Rules 2012(2) (Extradition) continue to apply as if those rules had not been revoked.

[Note. The rules replaced by the first Criminal Procedure Rules (the Criminal Procedure Rules 2005(3)) were revoked when those Rules came into force by provisions of the Courts Act 2003, the Courts Act 2003 (Consequential Amendments) Order 2004(4) and the Courts Act 2003 (Commencement No. 6 and Savings) Order 2004(5). The first Criminal Procedure Rules reproduced the substance of all the rules they replaced.

The rules in Part 17 of the Criminal Procedure Rules 2012 applied to extradition proceedings under the Backing of Warrants (Republic of Ireland) Act 1965(6) or under the Extradition Act 1989(7). By section 218 of the Extradition Act 2003, the 1965 and 1989 Acts ceased to have effect when the 2003 Act came into force. By article 2 of the Extradition Act 2003 (Commencement and Savings) Order 2003(8), the 2003 Act came into force on 1st January, 2004. However, article 3 of that Order(9) provided that the coming into force of the Act did not apply for the purposes of any request for extradition, whether made under any of the provisions of the Extradition Act 1989 or of the Backing of Warrants (Republic of Ireland) Act 1965 or otherwise, which was received by the relevant authority in the United Kingdom on or before 31st December, 2003.]

Definitions

2.2.—(1) In these Rules, unless the context makes it clear that something different is meant:

‘advocate’ means a person who is entitled to exercise a right of audience in the court under section 13 of the Legal Services Act 2007(10);

‘business day’ means any day except Saturday, Sunday, Christmas Day, Boxing Day, Good Friday, Easter Monday or a bank holiday;

‘court’ means a tribunal with jurisdiction over criminal cases. It includes a judge, recorder, District Judge (Magistrates’ Court), lay justice and, when exercising their judicial powers, the Registrar of Criminal Appeals, a justices’ clerk or assistant clerk;

‘court officer’ means the appropriate member of the staff of a court;

‘justices’ legal adviser’ means a justices’ clerk or an assistant to a justices’ clerk;

‘legal representative’ means:

(i)

the person for the time being named as a party’s representative in any legal aid representation order made under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012(11), or

(ii)

subject to that, the person named as a party’s representative in any notice for the time being given under rule 46.2 (Notice of appointment or change of legal representative), provided that person is entitled to conduct litigation in the court under section 13 of the Legal Services Act 2007;

‘live link’ means an arrangement by which a person can see and hear, and be seen and heard by, the court when that person is not in court;

‘Practice Direction’ means the Lord Chief Justice’s Criminal Practice Directions, as amended, and ‘Criminal Costs Practice Direction’ means the Lord Chief Justice’s Practice Direction (Costs in Criminal Proceedings), as amended;

‘public interest ruling’ means a ruling about whether it is in the public interest to disclose prosecution material under sections 3(6), 7A(8) or 8(5) of the Criminal Procedure and Investigations Act 1996(12); and

‘Registrar’ means the Registrar of Criminal Appeals or a court officer acting with the Registrar’s authority.

(2) Definitions of some other expressions are in the rules in which they apply.

[Note. The glossary at the end of the Rules is a guide to the meaning of certain legal expressions used in them.]

References to legislation, including these Rules

2.3.—(1) In these Rules, where a rule refers to an Act of Parliament or to subordinate legislation by title and year, subsequent references to that Act or to that legislation in the rule are shortened: so, for example, after a reference to the Criminal Procedure and Investigations Act 1996(13) that Act is called ‘the 1996 Act’; and after a reference to the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011(14) those Regulations are called ‘the 2011 Regulations’.

(2) In the courts to which these Rules apply―

(a)unless the context makes it clear that something different is meant, a reference to the Criminal Procedure Rules, without reference to a year, is a reference to the Criminal Procedure Rules in force at the date on which the event concerned occurs or occurred;

(b)a reference to the Criminal Procedure Rules may be abbreviated to ‘CrimPR’; and

(c)a reference to a Part or rule in the Criminal Procedure Rules may be abbreviated to, for example, ‘CrimPR Part 3’ or ‘CrimPR 3.5’.

PART 3CASE MANAGEMENT

Contents of this Part
General rules
When this Part appliesrule 3.1
The duty of the courtrule 3.2
The duty of the partiesrule 3.3
Case progression officers and their dutiesrule 3.4
The court’s case management powersrule 3.5
Application to vary a directionrule 3.6
Agreement to vary a time limit fixed by a directionrule 3.7
Court’s power to vary requirements under this Partrule 3.8
Case preparation and progressionrule 3.9
Readiness for trial or appealrule 3.10
Conduct of a trial or an appealrule 3.11
Duty of court officerrule 3.12
Preparation for trial in the Crown Court
Pre-trial hearingsrule 3.13
Preparatory hearingrule 3.14
Application for preparatory hearingrule 3.15
Application for non-jury trial containing information withheld from a defendantrule 3.16
Representations in response to application for preparatory hearingrule 3.17
Commencement of preparatory hearingrule 3.18
Defence trial advocaterule 3.19
Application to stay case for abuse of processrule 3.20
Application for joint or separate trials, etc.rule 3.21
Order for joint or separate trials, or amendment of the indictmentrule 3.22
Application for indication of sentencerule 3.23
Arraigning the defendant on the indictmentrule 3.24
Place of trialrule 3.25
Use of Welsh language at trialrule 3.26

GENERAL RULES

When this Part applies

3.1.—(1) Rules 3.1 to 3.12 apply to the management of each case in a magistrates’ court and in the Crown Court (including an appeal to the Crown Court) until the conclusion of that case.

(2) Rules 3.13 to 3.26 apply where―

(a)the defendant is sent to the Crown Court for trial;

(b)a High Court or Crown Court judge gives permission to serve a draft indictment; or

(c)the Court of Appeal orders a retrial.

[Note. Rules that apply to procedure in the Court of Appeal are in Parts 36 to 42 of these Rules.

A magistrates’ court may send a defendant for trial in the Crown Court under section 51 or 51A of the Crime and Disorder Act 1998(15). See Part 9 for the procedure on allocation and sending for trial.

Under paragraph 2(1) of Schedule 17 to the Crime and Courts Act 2013(16) and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(17),the Crown Court may give permission to serve a draft indictment where it approves a deferred prosecution agreement. See Part 11 for the rules about that procedure and Part 10 for the rules about indictments.

The procedure for applying for the permission of a High Court judge to serve a draft indictment is in rules 6 to 10 of the Indictments (Procedure) Rules 1971(18). See also the Practice Direction.

The Court of Appeal may order a retrial under section 8 of the Criminal Appeal Act 1968(19) (on a defendant’s appeal against conviction) or under section 77 of the Criminal Justice Act 2003(20) (on a prosecutor’s application for the retrial of a serious offence after acquittal). Section 8 of the 1968 Act, section 84 of the 2003 Act and rules 27.6 and 39.14 require the arraignment of a defendant within 2 months.]

The duty of the court

3.2.—(1) The court must further the overriding objective by actively managing the case.

(2) Active case management includes―

(a)the early identification of the real issues;

(b)the early identification of the needs of witnesses;

(c)achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;

(d)monitoring the progress of the case and compliance with directions;

(e)ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;

(f)discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;

(g)encouraging the participants to co-operate in the progression of the case; and

(h)making use of technology.

(3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.

The duty of the parties

3.3.—(1) Each party must―

(a)actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and

(b)apply for a direction if needed to further the overriding objective.

(2) Active assistance for the purposes of this rule includes―

(a)at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing;

(b)after that, communication between the parties and with the court officer until the conclusion of the case;

(c)by such communication establishing, among other things―

(i)whether the defendant is likely to plead guilty or not guilty,

(ii)what is agreed and what is likely to be disputed,

(iii)what information, or other material, is required by one party of another, and why, and

(iv)what is to be done, by whom, and when (without or if necessary with a direction); and

(d)reporting on that communication to the court―

(i)at the first hearing, and

(ii)after that, as directed by the court.

Case progression officers and their duties

3.4.—(1) At the beginning of the case each party must, unless the court otherwise directs―

(a)nominate someone responsible for progressing that case; and

(b)tell other parties and the court who that is and how to contact that person.

(2) In fulfilling its duty under rule 3.2, the court must where appropriate―

(a)nominate a court officer responsible for progressing the case; and

(b)make sure the parties know who that is and how to contact that court officer.

(3) In this Part a person nominated under this rule is called a case progression officer.

(4) A case progression officer must―

(a)monitor compliance with directions;

(b)make sure that the court is kept informed of events that may affect the progress of that case;

(c)make sure that he or she can be contacted promptly about the case during ordinary business hours;

(d)act promptly and reasonably in response to communications about the case; and

(e)if he or she will be unavailable, appoint a substitute to fulfil his or her duties and inform the other case progression officers.

The court’s case management powers

3.5.—(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.

(2) In particular, the court may―

(a)nominate a judge, magistrate or justices’ legal adviser to manage the case;

(b)give a direction on its own initiative or on application by a party;

(c)ask or allow a party to propose a direction;

(d)for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means;

(e)give a direction―

(i)at a hearing, in public or in private, or

(ii)without a hearing;

(f)fix, postpone, bring forward, extend, cancel or adjourn a hearing;

(g)shorten or extend (even after it has expired) a time limit fixed by a direction;

(h)require that issues in the case should be―

(i)identified in writing,

(ii)determined separately, and decide in what order they will be determined; and

(i)specify the consequences of failing to comply with a direction.

(3) A magistrates’ court may give a direction that will apply in the Crown Court if the case is to continue there.

(4) The Crown Court may give a direction that will apply in a magistrates’ court if the case is to continue there.

(5) Any power to give a direction under this Part includes a power to vary or revoke that direction.

(6) If a party fails to comply with a rule or a direction, the court may—

(a)fix, postpone, bring forward, extend, cancel or adjourn a hearing;

(b)exercise its powers to make a costs order; and

(c)impose such other sanction as may be appropriate.

[Note. Depending upon the nature of a case and the stage that it has reached, its progress may be affected by other Criminal Procedure Rules and by other legislation. The note at the end of this Part lists other rules and legislation that may apply.

See also rule 3.9 (Case preparation and progression).

The court may make a costs order under—

(a)section 19 of the Prosecution of Offences Act 1985(21), where the court decides that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party;

(b)section 19A of that Act(22), where the court decides that a party has incurred costs as a result of an improper, unreasonable or negligent act or omission on the part of a legal representative;

(c)section 19B of that Act(23), where the court decides that there has been serious misconduct by a person who is not a party.

Under some other legislation, including Parts 19, 20 and 21 of these Rules, if a party fails to comply with a rule or a direction then in some circumstances—

(a)the court may refuse to allow that party to introduce evidence;

(b)evidence that that party wants to introduce may not be admissible;

(c)the court may draw adverse inferences from the late introduction of an issue or evidence.

See also—

(a)section 81(1) of the Police and Criminal Evidence Act 1984(24) and section 20(3) of the Criminal Procedure and Investigations Act 1996(25) (advance disclosure of expert evidence);

(b)section 11(5) of the Criminal Procedure and Investigations Act 1996(26) (faults in disclosure by accused);

(c)section 132(5) of the Criminal Justice Act 2003(27) (failure to give notice of hearsay evidence).]

Application to vary a direction

3.6.—(1) A party may apply to vary a direction if―

(a)the court gave it without a hearing;

(b)the court gave it at a hearing in that party’s absence; or

(c)circumstances have changed.

(2) A party who applies to vary a direction must―

(a)apply as soon as practicable after becoming aware of the grounds for doing so; and

(b)give as much notice to the other parties as the nature and urgency of the application permits.

Agreement to vary a time limit fixed by a direction

3.7.—(1) The parties may agree to vary a time limit fixed by a direction, but only if―

(a)the variation will not―

(i)affect the date of any hearing that has been fixed, or

(ii)significantly affect the progress of the case in any other way;

(b)the court has not prohibited variation by agreement; and

(c)the court’s case progression officer is promptly informed.

(2) The court’s case progression officer must refer the agreement to the court if in doubt that the condition in paragraph (1)(a) is satisfied.

Court’s power to vary requirements under this Part

3.8.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit set by this Part; and

(b)allow an application or representations to be made orally.

(2) A person who wants an extension of time must—

(a)apply when serving the application or representations for which it is needed; and

(b)explain the delay.

Case preparation and progression

3.9.—(1) At every hearing, if a case cannot be concluded there and then the court must give directions so that it can be concluded at the next hearing or as soon as possible after that.

(2) At every hearing the court must, where relevant―

(a)if the defendant is absent, decide whether to proceed nonetheless;

(b)take the defendant’s plea (unless already done) or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty;

(c)set, follow or revise a timetable for the progress of the case, which may include a timetable for any hearing including the trial or (in the Crown Court) the appeal;

(d)in giving directions, ensure continuity in relation to the court and to the parties’ representatives where that is appropriate and practicable; and

(e)where a direction has not been complied with, find out why, identify who was responsible, and take appropriate action.

(3) In order to prepare for the trial, the court must take every reasonable step―

(a)to encourage and to facilitate the attendance of witnesses when they are needed; and

(b)to facilitate the participation of any person, including the defendant.

(4) Facilitating the participation of the defendant includes finding out whether the defendant needs interpretation because―

(a)the defendant does not speak or understand English; or

(b)the defendant has a hearing or speech impediment.

(5) Where the defendant needs interpretation―

(a)the court officer must arrange for interpretation to be provided at every hearing which the defendant is due to attend;

(b)interpretation may be by an intermediary where the defendant has a speech impediment, without the need for a defendant’s evidence direction;

(c)on application or on its own initiative, the court may require a written translation to be provided for the defendant of any document or part of a document, unless―

(i)translation of that document, or part, is not needed to explain the case against the defendant, or

(ii)the defendant agrees to do without and the court is satisfied that the agreement is clear and voluntary and that the defendant has had legal advice or otherwise understands the consequences;

(d)on application by the defendant, the court must give any direction which the court thinks appropriate, including a direction for interpretation by a different interpreter, where―

(i)no interpretation is provided,

(ii)no translation is ordered or provided in response to a previous application by the defendant, or

(iii)the defendant complains about the quality of interpretation or of any translation.

(6) Facilitating the participation of any person includes giving directions for the appropriate treatment and questioning of a witness or the defendant, especially where the court directs that such questioning is to be conducted through an intermediary.

(7) Where directions for appropriate treatment and questioning are required, the court must―

(a)invite representations by the parties and by any intermediary; and

(b)set ground rules for the conduct of the questioning, which rules may include―

(i)a direction relieving a party of any duty to put that party’s case to a witness or a defendant in its entirety,

(ii)directions about the manner of questioning,

(iii)directions about the duration of questioning,

(iv)if necessary, directions about the questions that may or may not be asked,

(v)where there is more than one defendant, the allocation among them of the topics about which a witness may be asked, and

(vi)directions about the use of models, plans, body maps or similar aids to help communicate a question or an answer.

[Note. Part 18 (Measures to assist a witness or defendant to give evidence) contains rules about an application for a defendant’s evidence direction under (among other provisions) sections 33BA and 33BB of the Youth Justice and Criminal Evidence Act 1999(28).

See also Directive 2010/64/EU of the European Parliament and of the Council of 20th October, 2010, on the right to interpretation and translation in criminal proceedings(29).

Where a trial in the Crown Court will take place in Wales and a participant wishes to use the Welsh language, see rule 3.26. Where a trial in a magistrates’ court will take place in Wales, a participant may use the Welsh language: see rule 24.14.]

Readiness for trial or appeal

3.10.—(1) This rule applies to a party’s preparation for trial or appeal, and in this rule and rule 3.11 ‘trial’ includes any hearing at which evidence will be introduced.

(2) In fulfilling the duty under rule 3.3, each party must―

(a)comply with directions given by the court;

(b)take every reasonable step to make sure that party’s witnesses will attend when they are needed;

(c)make appropriate arrangements to present any written or other material; and

(d)promptly inform the court and the other parties of anything that may―

(i)affect the date or duration of the trial or appeal, or

(ii)significantly affect the progress of the case in any other way.

(3) The court may require a party to give a certificate of readiness.

Conduct of a trial or an appeal

3.11.  In order to manage a trial or an appeal, the court—

(a)must establish, with the active assistance of the parties, what are the disputed issues;

(b)must consider setting a timetable that—

(i)takes account of those issues and of any timetable proposed by a party, and

(ii)may limit the duration of any stage of the hearing;

(c)may require a party to identify—

(i)which witnesses that party wants to give evidence in person,

(ii)the order in which that party wants those witnesses to give their evidence,

(iii)whether that party requires an order compelling the attendance of a witness,

(iv)what arrangements are desirable to facilitate the giving of evidence by a witness,

(v)what arrangements are desirable to facilitate the participation of any other person, including the defendant,

(vi)what written evidence that party intends to introduce,

(vii)what other material, if any, that person intends to make available to the court in the presentation of the case, and

(viii)whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and

(d)may limit—

(i)the examination, cross-examination or re-examination of a witness, and

(ii)the duration of any stage of the hearing.

[Note. See also rules 3.5 (The court’s case management powers) and 3.9 (Case preparation and progression).]

Duty of court officer

3.12.  The court officer must—

(a)where a person is entitled or required to attend a hearing, give as much notice as reasonably practicable to―

(i)that person, and

(ii)that person’s custodian (if any);

(b)where the court gives directions, promptly make a record available to the parties.

[Note. See also rule 5.7 (Supply to a party of information or documents from records or case materials).]

PREPARATION FOR TRIAL IN THE CROWN COURT

Pre-trial hearings: general rules

3.13.—(1) The Crown Court―

(a)may, and in some cases must, conduct a preparatory hearing where rule 3.14 applies;

(b)must conduct a plea and trial preparation hearing;

(c)may conduct a further pre-trial case management hearing (and if necessary more than one such hearing) only where―

(i)the court anticipates a guilty plea,

(ii)it is necessary to conduct such a hearing in order to give directions for an effective trial, or

(iii)such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.

(2) A pre-trial case management hearing―

(a)must be in public, as a general rule, but all or part of the hearing may be in private if the court so directs; and

(b)must be recorded, in accordance with rule 5.5 (Recording and transcription of proceedings in the Crown Court).

(3) Where the court determines a pre-trial application in private, it must announce its decision in public.

[Note. See also the general rules in the first section of this Part (rules 3.1 to 3.12) and the other rules in this section.

The Practice Direction lists the circumstances in which a further pre-trial case management hearing is likely to be needed in order to give directions for an effective trial.

There are rules relevant to applications which may be made at a pre-trial hearing in Part 6 (Reporting, etc. restrictions), Part 14 (Bail and custody time limits), Part 15 (Disclosure), Part 17 (Witness summonses, warrants and orders), Part 18 (Measures to assist a witness or defendant to give evidence), Part 19 (Expert evidence), Part 20 (Hearsay evidence), Part 21 (Evidence of bad character), Part 22 (Evidence of a complainant’s previous sexual behaviour) and Part 23 (Restriction on cross-examination by a defendant).

On an application to which Part 14 (Bail and custody time limits) applies, rule 14.2 (exercise of court’s powers under that Part) may require the defendant’s presence, which may be by live link. Where rule 14.10 applies (Consideration of bail in a murder case), the court officer must arrange for the Crown Court to consider bail within 2 business days of the first hearing in the magistrates’ court.

Under section 40 of the Criminal Procedure and Investigations Act 1996(30), a pre-trial ruling about the admissibility of evidence or any other question of law is binding unless it later appears to the court in the interests of justice to discharge or vary that ruling.]

Preparatory hearing

3.14.—(1) This rule applies where the Crown Court―

(a)can order a preparatory hearing, under―

(i)section 7 of the Criminal Justice Act 1987(31) (cases of serious or complex fraud), or

(ii)section 29 of the Criminal Procedure and Investigations Act 1996(32) (other complex, serious or lengthy cases);

(b)must order such a hearing, to determine an application for a trial without a jury, under―

(i)section 44 of the Criminal Justice Act 2003(33) (danger of jury tampering), or

(ii)section 17 of the Domestic Violence, Crime and Victims Act 2004(34) (trial of sample counts by jury, and others by judge alone);

(c)must order such a hearing, under section 29 of the 1996 Act, where section 29(1B) or (1C) applies (cases in which a terrorism offence is charged, or other serious cases with a terrorist connection).

(2) The court may decide whether to order a preparatory hearing—

(a)on an application or on its own initiative;

(b)at a hearing (in public or in private), or without a hearing;

(c)in a party’s absence, if that party—

(i)applied for the order, or

(ii)has had at least 14 days in which to make representations.

[Note. See also section 45(2) of the Criminal Justice Act 2003 and section 18(1) of the Domestic Violence, Crime and Victims Act 2004.

At a preparatory hearing, the court may

(a)require the prosecution to set out its case in a written statement, to arrange its evidence in a form that will be easiest for the jury (if there is one) to understand, to prepare a list of agreed facts, and to amend the case statement following representations from the defence (section 9(4) of the 1987 Act, section 31(4) of the 1996 Act); and

(b)require the defence to give notice of any objection to the prosecution case statement, and to give notice stating the extent of agreement with the prosecution as to documents and other matters and the reason for any disagreement (section 9(5) of the 1987 Act, section 31(6), (7), (9) of the 1996 Act).

Under section 10 of the 1987 Act(35), and under section 34 of the 1996 Act(36), if either party later departs from the case or objections disclosed by that party, then the court, or another party, may comment on that, and the court may draw such inferences as appear proper.]

Application for preparatory hearing

3.15.—(1) A party who wants the court to order a preparatory hearing must—

(a)apply in writing—

(i)as soon as reasonably practicable, and in any event

(ii)not more than 14 days after the defendant pleads not guilty;

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)if relevant, explain what legislation requires the court to order a preparatory hearing;

(b)otherwise, explain—

(i)what makes the case complex or serious, or makes the trial likely to be long,

(ii)why a substantial benefit will accrue from a preparatory hearing, and

(iii)why the court’s ordinary powers of case management are not adequate.

(3) A prosecutor who wants the court to order a trial without a jury must explain—

(a)where the prosecutor alleges a danger of jury tampering—

(i)what evidence there is of a real and present danger that jury tampering would take place,

(ii)what steps, if any, reasonably might be taken to prevent jury tampering, and

(iii)why, notwithstanding such steps, the likelihood of jury tampering is so substantial as to make it necessary in the interests of justice to order such a trial; or

(b)where the prosecutor proposes trial without a jury on some counts on the indictment—

(i)why a trial by jury involving all the counts would be impracticable,

(ii)how the counts proposed for jury trial can be regarded as samples of the others, and

(iii)why it would be in the interests of justice to order such a trial.

Application for non-jury trial containing information withheld from a defendant

3.16.—(1) This rule applies where—

(a)the prosecutor applies for an order for a trial without a jury because of a danger of jury tampering; and

(b)the application includes information that the prosecutor thinks ought not be revealed to a defendant.

(2) The prosecutor must—

(a)omit that information from the part of the application that is served on that defendant;

(b)mark the other part to show that, unless the court otherwise directs, it is only for the court; and

(c)in that other part, explain why the prosecutor has withheld that information from that defendant.

(3) The hearing of an application to which this rule applies—

(a)must be in private, unless the court otherwise directs; and

(b)if the court so directs, may be, wholly or in part, in the absence of a defendant from whom information has been withheld.

(4) At the hearing of an application to which this rule applies—

(a)the general rule is that the court will receive, in the following sequence—

(i)representations first by the prosecutor and then by each defendant, in all the parties’ presence, and then

(ii)further representations by the prosecutor, in the absence of a defendant from whom information has been withheld; but

(b)the court may direct other arrangements for the hearing.

(5) Where, on an application to which this rule applies, the court orders a trial without a jury—

(a)the general rule is that the trial will be before a judge other than the judge who made the order; but

(b)the court may direct other arrangements.

Representations in response to application for preparatory hearing

3.17.—(1) This rule applies where a party wants to make representations about—

(a)an application for a preparatory hearing;

(b)an application for a trial without a jury.

(2) Such a party must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after service of the application;

(c)ask for a hearing, if that party wants one, and explain why it is needed.

(3) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—

(a)omit that information from the representations served on that other party;

(b)mark the information to show that, unless the court otherwise directs, it is only for the court; and

(c)with that information include an explanation of why it has been withheld from that other party.

(4) Representations against an application for an order must explain why the conditions for making it are not met.

Commencement of preparatory hearing

3.18.  At the beginning of a preparatory hearing, the court must—

(a)announce that it is such a hearing; and

(b)take the defendant’s plea under rule 3.24 (Arraigning the defendant on the indictment), unless already done.

[Note. See section 8 of the Criminal Justice Act 1987(37) and section 30 of the Criminal Procedure and Investigations Act 1996(38).]

Defence trial advocate

3.19.—(1) The defendant must notify the court officer of the identity of the intended defence trial advocate―

(a)as soon as practicable, and in any event no later than the day of the plea and trial preparation hearing;

(b)in writing, or orally at that hearing.

(2) The defendant must notify the court officer in writing of any change in the identity of the intended defence trial advocate as soon as practicable, and in any event not more than 5 business days after that change.

Application to stay case for abuse of process

3.20.—(1) This rule applies where a defendant wants the Crown Court to stay the case on the grounds that the proceedings are an abuse of the court, or otherwise unfair.

(2) Such a defendant must—

(a)apply in writing—

(i)as soon as practicable after becoming aware of the grounds for doing so,

(ii)at a pre-trial hearing, unless the grounds for the application do not arise until trial, and

(iii)in any event, before the defendant pleads guilty or the jury (if there is one) retires to consider its verdict at trial;

(b)serve the application on—

(i)the court officer, and

(ii)each other party; and

(c)in the application—

(i)explain the grounds on which it is made,

(ii)include, attach or identify all supporting material,

(iii)specify relevant events, dates and propositions of law, and

(iv)identify any witness the applicant wants to call to give evidence in person.

(3) A party who wants to make representations in response to the application must serve the representations on—

(a)the court officer; and

(b)each other party,

not more than 14 days after service of the application.

Application for joint or separate trials, etc.

3.21.—(1) This rule applies where a party wants the Crown Court to order—

(a)the joint trial of—

(i)offences charged by separate indictments, or

(ii)defendants charged in separate indictments;

(b)separate trials of offences charged by the same indictment;

(c)separate trials of defendants charged in the same indictment; or

(d)the deletion of a count from an indictment.

(2) Such a party must—

(a)apply in writing—

(i)as soon as practicable after becoming aware of the grounds for doing so, and

(ii)before the trial begins, unless the grounds for the application do not arise until trial;

(b)serve the application on—

(i)the court officer, and

(ii)each other party; and

(c)in the application—

(i)specify the order proposed, and

(ii)explain why it should be made.

(3) A party who wants to make representations in response to the application must serve the representations on—

(a)the court officer; and

(b)each other party,

not more than 14 days after service of the application.

[Note. See section 5 of the Indictments Act 1915. Rule 10.2 governs the form and content of an indictment.]

Order for joint or separate trials, or amendment of the indictment

3.22.—(1) This rule applies where the Crown Court makes an order—

(a)on an application under rule 3.21 applies (Application for joint or separate trials, etc.); or

(b)amending an indictment in any other respect.

(2) Unless the court otherwise directs, the court officer must endorse any paper copy of each affected indictment made for the court with—

(a)a note of the court’s order; and

(b)the date of that order.

Application for indication of sentence

3.23.—(1) This rule applies where a defendant wants the Crown Court to give an indication of the maximum sentence that would be passed if a guilty plea were entered when the indication is sought.

(2) Such a defendant must—

(a)apply in writing as soon as practicable; and

(b)serve the application on—

(i)the court officer, and

(ii)the prosecutor.

(3) The application must—

(a)specify—

(i)the offence or offences to which it would be a guilty plea, and

(ii)the facts on the basis of which that plea would be entered; and

(b)include the prosecutor’s agreement to, or representations on, that proposed basis of plea.

(4) The prosecutor must—

(a)provide information relevant to sentence, including—

(i)any previous conviction of the defendant, and the circumstances where relevant,

(ii)any statement of the effect of the offence on the victim, the victim’s family or others; and

(b)identify any other matter relevant to sentence, including—

(i)the legislation applicable,

(ii)any sentencing guidelines, or guideline cases, and

(iii)aggravating and mitigating factors.

(5) The hearing of the application—

(a)may take place in the absence of any other defendant;

(b)must be attended by—

(i)the applicant defendant’s legal representatives (if any), and

(ii)the prosecution advocate.

Arraigning the defendant on the indictment

3.24.—(1) In order to take the defendant’s plea, the Crown Court must—

(a)ensure that the defendant is correctly identified by the indictment;

(b)in respect of each count in the indictment—

(i)read the count aloud to the defendant, or arrange for it to be read aloud or placed before the defendant in writing,

(ii)ask whether the defendant pleads guilty or not guilty to the offence charged by that count, and

(iii)take the defendant’s plea.

(2) Where a count is read which is substantially the same as one already read aloud, then only the materially different details need be read aloud.

(3) Where a count is placed before the defendant in writing, the court must summarise its gist aloud.

(4) In respect of each count in the indictment—

(a)if the defendant declines to enter a plea, the court must treat that as a not guilty plea unless rule 25.11 applies (Defendant unfit to plead);

(b)if the defendant pleads not guilty to the offence charged by that count but guilty to another offence of which the court could convict on that count—

(i)if the prosecutor and the court accept that plea, the court must treat the plea as one of guilty of that other offence, but

(ii)otherwise, the court must treat the plea as one of not guilty;

(c)if the defendant pleads a previous acquittal or conviction of the offence charged by that count—

(i)the defendant must identify that acquittal or conviction in writing, explaining the basis of that plea, and

(ii)the court must exercise its power to decide whether that plea disposes of that count.

[Note. See section 6 of the Criminal Law Act 1967(39) and section 122 of the Criminal Justice Act 1988(40). Part 10 contains rules about indictments.

Under section 6(2) of the 1967 Act, on an indictment for murder a defendant may instead be convicted of manslaughter or another offence specified by that provision. Under section 6(3) of that Act, on an indictment for an offence other than murder or treason a defendant may instead be convicted of another offence if

(a)the allegation in the indictment amounts to or includes an allegation of that other offence; and

(b)the Crown Court has power to convict and sentence for that other offence.]

Place of trial

3.25.—(1) Unless the court otherwise directs, the court officer must arrange for the trial to take place in a courtroom provided by the Lord Chancellor.

(2) The court officer must arrange for the court and the jury (if there is one) to view any place required by the court.

[Note. See section 3 of the Courts Act 2003(41) and section 14 of the Juries Act 1974(42).

In some circumstances the court may conduct all or part of the hearing outside a courtroom.]

Use of Welsh language at trial

3.26.  Where the trial will take place in Wales and a participant wishes to use the Welsh language—

(a)that participant must serve notice on the court officer, or arrange for such a notice to be served on that participant’s behalf—

(i)at or before the plea and trial preparation hearing, or

(ii)in accordance with any direction given by the court; and

(b)if such a notice is served, the court officer must arrange for an interpreter to attend.

[Note. See section 22 of the Welsh Language Act 1993(43).]

Other provisions affecting case management

Case management may be affected by the following other rules and legislation:

Criminal Procedure Rules

Part 8 Initial details of the prosecution case

Part 9 Allocation and sending for trial

Part 10 The indictment

Part 15 Disclosure

Parts 16 – 23: the rules that deal with evidence

Part 24 Trial and sentence in a magistrates’ court

Part 25 Trial and sentence in the Crown Court

Regulations

The Prosecution of Offences (Custody Time Limits) Regulations 1987(44)

The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(45)

The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011(46)

Acts of Parliament

Sections 10 and 18, Magistrates’ Courts Act 1980(47): powers to adjourn hearings

Sections 128 and 129, Magistrates’ Courts Act 1980(48): remand in custody by magistrates’ courts

Sections 19 and 24A, Magistrates’ Courts Act 1980(49) and sections 51 and 51A, Crime and Disorder Act 1998(50): allocation and sending for trial

Section 2, Administration of Justice (Miscellaneous Provisions) Act 1933(51): procedural conditions for trial in the Crown Court

Sections 8A and 8B, Magistrates’ Courts Act 1980(52): pre-trial hearings in magistrates’ courts

Section 7, Criminal Justice Act 1987(53); Parts III and IV, Criminal Procedure and Investigations Act 1996: pre-trial and preparatory hearings in the Crown Court

Section 9, Criminal Justice Act 1967(54): proof by written witness statement

Part 1, Criminal Procedure and Investigations Act 1996(55): disclosure.]

PART 4SERVICE OF DOCUMENTS

Contents of this Part
When this Part appliesrule 4.1
Methods of servicerule 4.2
Service by handing over a documentrule 4.3
Service by leaving or posting a documentrule 4.4
Service by document exchangerule 4.5
Service by electronic meansrule 4.6
Documents that must be served by specified methodsrule 4.7
Service by person in custodyrule 4.8
Service by another methodrule 4.9
Documents that may not be served on a legal representativerule 4.10
Date of servicerule 4.11
Proof of servicerule 4.12
Court’s power to give directions about servicerule 4.13

When this Part applies

4.1.—(1) The rules in this Part apply—

(a)to the service of every document in a case to which these Rules apply; and

(b)for the purposes of section 12 of the Road Traffic Offenders Act 1988(56), to the service of a requirement to which that section applies.

(2) The rules apply subject to any special rules in other legislation (including other Parts of these Rules) or in the Practice Direction.

[Note. Section 12 of the Road Traffic Offenders Act 1988 allows the court to accept the documents to which it refers as evidence of a driver’s identity where a requirement to state that identity has been served under section 172 of the Road Traffic Act 1988(57) or under section 112 of the Road Traffic Regulation Act 1984(58).]

Methods of service

4.2.—(1) A document may be served by any of the methods described in rules 4.3 to 4.6 (subject to rules 4.7 and 4.10), or in rule 4.8.

(2) Where a document may be served by electronic means under rule 4.6, the general rule is that the person serving it must use that method.

Service by handing over a document

4.3.—(1) A document may be served on—

(a)an individual by handing it to him or her;

(b)a corporation by handing it to a person holding a senior position in that corporation;

(c)an individual or corporation who is legally represented in the case by handing it to that legal representative;

(d)the prosecution by handing it to the prosecutor or to the prosecution representative;

(e)the court officer by handing it to a court officer with authority to accept it at the relevant court office; and

(f)the Registrar of Criminal Appeals by handing it to a court officer with authority to accept it at the Criminal Appeal Office.

(2) If an individual is under 18, a copy of a document served under paragraph (1)(a) must be handed to his or her parent, or another appropriate adult, unless no such person is readily available.

(3) Unless the court otherwise directs, for the purposes of paragraph (1)(c) or (d) (service by handing a document to a party’s representative) ‘representative’ includes an advocate appearing for that party at a hearing.

(4) In this rule, ‘the relevant court office’ means—

(a)in relation to a case in a magistrates’ court or in the Crown Court, the office at which that court’s business is administered by court staff;

(b)in relation to an extradition appeal case in the High Court, the Administrative Court Office of the Queen’s Bench Division of the High Court.

[Note. Some legislation treats a body that is not a corporation as if it were one for the purposes of rules about service of documents. See for example section 143 of the Adoption and Children Act 2002(59).]

Service by leaving or posting a document

4.4.—(1) A document may be served by addressing it to the person to be served and leaving it at the appropriate address for service under this rule, or by sending it to that address by first class post or by the equivalent of first class post.

(2) The address for service under this rule on—

(a)an individual is an address where it is reasonably believed that he or she will receive it;

(b)a corporation is its principal office, and if there is no readily identifiable principal office then any place where it carries on its activities or business;

(c)an individual or corporation who is legally represented in the case is that legal representative’s office;

(d)the prosecution is the prosecutor’s office;

(e)the court officer is the relevant court office; and

(f)the Registrar of Criminal Appeals is the Criminal Appeal Office, Royal Courts of Justice, Strand, London WC2A 2LL.

(3) In this rule, ‘the relevant court office’ means—

(a)in relation to a case in a magistrates’ court or in the Crown Court, the office at which that court’s business is administered by court staff;

(b)in relation to an extradition appeal case in the High Court, the Administrative Court Office, Royal Courts of Justice, Strand, London WC2A 2LL.

[Note. In addition to service in England and Wales for which these rules provide, service outside England and Wales may be allowed under other legislation. See—

(a)section 39 of the Criminal Law Act 1977(60) (service of summons, etc. in Scotland and Northern Ireland);

(b)section 1139(4) of the Companies Act 2006(61) (service of copy summons, etc. on company’s registered office in Scotland and Northern Ireland);

(c)sections 3, 4, 4A and 4B of the Crime (International Co-operation) Act 2003(62) (service of summons, etc. outside the United Kingdom) and rules 49.1 and 49.2; and

(d)section 1139(2) of the Companies Act 2006 (service on overseas company).]

Service by document exchange

4.5.—(1) This rule applies where—

(a)the person to be served—

(i)has given a document exchange (DX) box number, and

(ii)has not refused to accept service by DX; or

(b)the person to be served is legally represented in the case and the legal representative has given a DX box number.

(2) A document may be served by—

(a)addressing it to that person or legal representative, as appropriate, at that DX box number; and

(b)leaving it at—

(i)the document exchange at which the addressee has that DX box number, or

(ii)a document exchange at which the person serving it has a DX box number.

Service by electronic means

4.6.—(1) This rule applies where—

(a)the person to be served—

(i)has given an electronic address and has not refused to accept service at that address, or

(ii)is given access to an electronic address at which a document may be deposited and has not refused to accept service by the deposit of a document at that address; or

(b)the person to be served is legally represented in the case and the legal representative—

(i)has given an electronic address, or

(ii)is given access to an electronic address at which a document may be deposited.

(2) A document may be served—

(a)by sending it by electronic means to the address which the recipient has given; or

(b)by depositing it at an address to which the recipient has been given access and—

(i)in every case, making it possible for the recipient to read the document, or view or listen to its content, as the case may be,

(ii)unless the court otherwise directs, making it possible for the recipient to make and keep an electronic copy of the document, and

(iii)notifying the recipient of the deposit of the document (which notice may be given by electronic means).

(3) Where a document is served under this rule the person serving it need not provide a paper copy as well.

Documents that must be served by specified methods

4.7.—(1) An application or written statement, and notice, under rule 48.9 alleging contempt of court may be served—

(a)on an individual, only under rule 4.3(1)(a) (by handing it to him or her);

(b)on a corporation, only under rule 4.3(1)(b) (by handing it to a person holding a senior position in that corporation).

(2) For the purposes of section 12 of the Road Traffic Offenders Act 1988(63), a notice of a requirement under section 172 of the Road Traffic Act 1988(64) or under section 112 of the Road Traffic Regulation Act 1984(65) to identify the driver of a vehicle may be served—

(a)on an individual, only by post under rule 4.4(1) and (2)(a);

(b)on a corporation, only by post under rule 4.4(1) and (2)(b).

Service by person in custody

4.8.—(1) A person in custody may serve a document by handing it to the custodian addressed to the person to be served.

(2) The custodian must—

(a)endorse it with the time and date of receipt;

(b)record its receipt; and

(c)forward it promptly to the addressee.

Service by another method

4.9.—(1) The court may allow service of a document by a method—

(a)other than those described in rules 4.3 to 4.6 and in rule 4.8;

(b)other than one specified by rule 4.7, where that rule applies.

(2) An order allowing service by another method must specify—

(a)the method to be used; and

(b)the date on which the document will be served.

Documents that may not be served on a legal representative

4.10.  Unless the court otherwise directs, service on a party’s legal representative of any of the following documents is not service of that document on that party—

(a)a summons, requisition, single justice procedure notice or witness summons;

(b)notice of an order under section 25 of the Road Traffic Offenders Act 1988(66);

(c)a notice of registration under section 71(6) of that Act(67);

(d)notice of a hearing to review the postponement of the issue of a warrant of detention or imprisonment under section 77(6) of the Magistrates’ Courts Act 1980(68);

(e)notice under section 86 of that Act(69) of a revised date to attend a means inquiry;

(f)any notice or document served under Part 14 (Bail and custody time limits);

(g)notice under rule 24.16(a) of when and where an adjourned hearing will resume;

(h)notice under rule 28.5(3) of an application to vary or discharge a compensation order;

(i)notice under rule 28.10(2)(c) of the location of the sentencing or enforcing court;

(j)a collection order, or notice requiring payment, served under rule 30.2(a); or

(k)an application or written statement, and notice, under rule 48.9 alleging contempt of court.

Date of service

4.11.—(1) A document served under rule 4.3 or rule 4.8 is served on the day it is handed over.

(2) Unless something different is shown, a document served on a person by any other method is served—

(a)in the case of a document left at an address, on the next business day after the day on which it was left;

(b)in the case of a document sent by first class post or by the equivalent of first class post, on the second business day after the day on which it was posted or despatched;

(c)in the case of a document served by document exchange, on the second business day after the day on which it was left at a document exchange allowed by rule 4.5;

(d)in the case of a document served by electronic means—

(i)on the day on which it is sent under rule 4.6(2)(a), if that day is a business day and if it is sent by no later than 2.30pm that day,

(ii)on the day on which notice of its deposit is given under rule 4.6(2)(b), if that day is a business day and if that notice is given by no later than 2.30pm that day, or

(iii)otherwise, on the next business day after it was sent or such notice was given; and

(e)in any case, on the day on which the addressee responds to it, if that is earlier.

(3) Unless something different is shown, a document produced by a computer system for dispatch by post is to be taken as having been sent by first class post, or by the equivalent of first class post, to the addressee on the business day after the day on which it was produced.

(4) Where a document is served on or by the court officer, ‘business day’ does not include a day on which the court office is closed.

Proof of service

4.12.  The person who serves a document may prove that by signing a certificate explaining how and when it was served.

Court’s power to give directions about service

4.13.—(1) The court may specify the time as well as the date by which a document must be—

(a)served under rule 4.3 (Service by handing over a document) or rule 4.8 (Service by person in custody); or

(b)sent or deposited by electronic means, if it is served under rule 4.6.

(2) The court may treat a document as served if the addressee responds to it even if it was not served in accordance with the rules in this Part.

PART 5FORMS AND COURT RECORDS

Contents of this Part
Forms
Applications, etc. by forms or electronic meansrule 5.1
Forms in Welshrule 5.2
Signature of formsrule 5.3
Court records
Duty to make recordsrule 5.4
Recording and transcription of proceedings in the Crown Courtrule 5.5
Custody of case materialsrule 5.6
Supply to a party of information or documents from records or case materialsrule 5.7
Supply to the public, including reporters, of information about casesrule 5.8
Supply of written certificate or extract from recordsrule 5.9

FORMS

Applications, etc. by forms or electronic means

5.1.—(1) This rule applies where a rule, a practice direction or the court requires a person to—

(a)make an application or give a notice;

(b)supply information for the purposes of case management by the court; or

(c)supply information needed for other purposes by the court.

(2) Unless the court otherwise directs, such a person must—

(a)use such electronic arrangements as the court officer may make for that purpose, in accordance with those arrangements; or

(b)if no such arrangements have been made, use the appropriate form set out in the Practice Direction or the Criminal Costs Practice Direction, in accordance with those Directions.

Forms in Welsh

5.2.—(1) Any Welsh language form set out in the Practice Direction, or in the Criminal Costs Practice Direction, is for use in connection with proceedings in courts in Wales.

(2) Both a Welsh form and an English form may be contained in the same document.

(3) Where only a Welsh form, or only the corresponding English form, is served—

(a)the following words in Welsh and English must be added:

Darperir y ddogfen hon yn Gymraeg / Saesneg os bydd arnoch ei heisiau. Dylech wneud cais yn ddi-oed i (swyddog y llys) (rhodder yma’r cyfeiriad)

This document will be provided in Welsh / English if you require it. You should apply immediately to (the court officer) (address); and

(b)the court officer, or the person who served the form, must, on request, supply the corresponding form in the other language to the person served.

Signature of forms

5.3.—(1) This rule applies where a form provides for its signature.

(2) Unless other legislation otherwise requires, or the court otherwise directs, signature may be by any written or electronic authentication of the form by, or with the authority of, the signatory.

[Note. Section 7 of the Electronic Communications Act 2000(70) provides for the use of an electronic signature in an electronic communication.]

COURT RECORDS

Duty to make records

5.4.—(1) For each case, as appropriate, the court officer must record, by such means as the Lord Chancellor directs—

(a)each charge or indictment against the defendant;

(b)the defendant’s plea to each charge or count;

(c)each acquittal, conviction, sentence, determination, direction or order;

(d)each decision about bail;

(e)the power exercised where the court commits or adjourns the case to another court—

(i)for sentence, or

(ii)for the defendant to be dealt with for breach of a community order, a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by that other court;

(f)the court’s reasons for a decision, where legislation requires those reasons to be recorded;

(g)any appeal;

(h)each party’s presence or absence at each hearing;

(i)any consent that legislation requires before the court can proceed with the case, or proceed to a decision;

(j)in a magistrates’ court—

(i)any indication of sentence given in connection with the allocation of a case for trial, and

(ii)the registration of a fixed penalty notice for enforcement as a fine, and any related endorsement on a driving record;

(k)in the Crown Court, any request for assistance or other communication about the case received from a juror;

(l)the identity of—

(i)the prosecutor,

(ii)the defendant,

(iii)any other applicant to whom these Rules apply,

(iv)any interpreter or intermediary,

(v)the parties’ legal representatives, if any, and

(vi)the judge, magistrate or magistrates, justices’ legal adviser or other person who made each recorded decision;

(m)where a defendant is entitled to attend a hearing, any agreement by the defendant to waive that right; and

(n)where interpretation is required for a defendant, any agreement by that defendant to do without the written translation of a document.

(2) Such records must include—

(a)each party’s and representative’s address, including any electronic address and telephone number available;

(b)the defendant’s date of birth, if available; and

(c)the date of each event and decision recorded.

[Note. For the duty to keep court records, see sections 5 and 8 of the Public Records Act 1958(71).

Requirements to record the court’s reasons for its decision are contained in: section 5 of the Bail Act 1976(72); section 47(1) of the Road Traffic Offenders Act 1988(73); sections 20, 33A and 33BB of the Youth Justice and Criminal Evidence Act 1999(74); section 174 of the Criminal Justice Act 2003(75); and rule 16.8.

The prosecution of some offences requires the consent of a specified authority. Requirements for the defendant’s consent to proceedings in his or her absence are contained in sections 23 and 128 of the Magistrates’ Courts Act 1980(76).

In the circumstances for which it provides, section 20 of the Magistrates’ Courts Act 1980(77) allows the court to give an indication of whether a custodial or non-custodial sentence is more likely in the event of a guilty plea at trial in that court.

Requirements to register fixed penalty notices and to record any related endorsement of a driving record are contained in sections 57, 57A and 71 of the Road Traffic Offenders Act 1988(78).

For agreement to do without a written translation in a case in which the defendant requires interpretation, see rule 3.9(5).]

Recording and transcription of proceedings in the Crown Court

5.5.—(1) Where someone may appeal to the Court of Appeal, the court officer must—

(a)arrange for the recording of the proceedings in the Crown Court, unless the court otherwise directs; and

(b)arrange for the transcription of such a recording if—

(i)the Registrar wants such a transcript, or

(ii)anyone else wants such a transcript (but that is subject to the restrictions in paragraph (2)).

(2) Unless the court otherwise directs, a person who transcribes a recording of proceedings under such arrangements—

(a)must not supply anyone other than the Registrar with a transcript of a recording of—

(i)a hearing in private, or

(ii)information to which reporting restrictions apply;

(b)subject to that, must supply any person with any transcript for which that person asks—

(i)in accordance with the transcription arrangements made by the court officer, and

(ii)on payment by that person of any fee prescribed.

(3) A party who wants to hear a recording of proceedings must—

(a)apply—

(i)in writing to the Registrar, if an appeal notice has been served where Part 36 applies (Appeal to the Court of Appeal: general rules), or

(ii)orally or in writing to the Crown Court officer;

(b)explain the reasons for the request; and

(c)pay any fee prescribed.

(4) If the Crown Court or the Registrar so directs, the Crown Court officer must allow that party to hear a recording of—

(a)a hearing in public;

(b)a hearing in private, if the applicant was present at that hearing.

[Note. See also section 32 of the Criminal Appeal Act 1968(79).]

Custody of case materials

5.6.  Unless the court otherwise directs, in respect of each case the court officer may—

(a)keep any evidence, application, representation or other material served by the parties; or

(b)arrange for the whole or any part to be kept by some other appropriate person, subject to—

(i)any condition imposed by the court, and

(ii)the rules in Part 34 (Appeal to the Crown Court) and Part 36 (Appeal to the Court of Appeal: general rules) about keeping exhibits pending any appeal.

Supply to a party of information or documents from records or case materials

5.7.—(1) This rule applies where—

(a)a party wants information, or a copy of a document, from records or case materials kept by the court officer (for example, in case of loss, or to establish what is retained); or

(b)a person affected by an order made, or warrant issued, by the court wants such information or such a copy.

(2) Such a party or person must—

(a)apply to the court officer;

(b)specify the information or document required; and

(c)pay any fee prescribed.

(3) The application—

(a)may be made orally, giving no reasons, if paragraph (4) requires the court officer to supply the information or document requested;

(b)must be in writing, unless the court otherwise permits, and must explain for what purpose the information is required, in any other case.

(4) The court officer must supply to the applicant party or person—

(a)a copy of any document served by, or on, that party or person (but not of any document not so served);

(b)by word of mouth, or in writing, as requested—

(i)information that was received from that party or person in the first place,

(ii)information about the terms of any direction or order directed to that party or person, or made on an application by that party or person, or at a hearing in public,

(iii)information about the outcome of the case.

(5) If the court so directs, the court officer must supply to the applicant party or person, by word of mouth or in writing, as requested, information that paragraph (4) does not require the court officer to supply.

(6) Where the information requested is about the grounds on which an order was made, or a warrant was issued, in the absence of the party or person applying for that information—

(a)that party or person must also serve the request on the person who applied for the order or warrant;

(b)if the person who applied for the order or warrant objects to the supply of the information requested, that objector must—

(i)give notice of the objection not more than 14 days after service of the request (or within any longer period allowed by the court),

(ii)serve that notice on the court officer and on the party or person requesting the information, and

(iii)if the objector wants a hearing, explain why one is needed;

(c)the court may determine the application for information at a hearing (which must be in private unless the court otherwise directs), or without a hearing;

(d)the court must not permit the information requested to be supplied unless the person who applied for the order or warrant has had at least 14 days (or any longer period allowed by the court) in which to make representations.

(7) A notice of objection under paragraph (6) must explain—

(a)whether the objection is to the supply of any part of the information requested, or only to the supply of a specified part, or parts, of it;

(b)whether the objection is to the supply of the information at any time, or only to its supply before a date or event specified by the objector; and

(c)the grounds of the objection.

(8) Where a notice of objection under paragraph (6) includes material that the objector thinks ought not be revealed to the party or person applying for information, the objector must—

(a)omit that material from the notice served on that party or person;

(b)mark the material to show that it is only for the court; and

(c)with that material include an explanation of why it has been withheld.

(9) Where paragraph (8) applies—

(a)a hearing of the application may take place, wholly or in part, in the absence of the party or person applying for information;

(b)at any such hearing, the general rule is that the court must consider, in the following sequence—

(i)representations first by the party or person applying for information and then by the objector, in the presence of both, and then

(ii)further representations by the objector, in the absence of that party or person

but the court may direct other arrangements for the hearing.

Supply to the public, including reporters, of information about cases

5.8.—(1) This rule—

(a)applies where a member of the public, including a reporter, wants information about a case from the court officer;

(b)requires the court officer to publish information about cases due to be heard.

(2) A person who wants information about a case from the court officer must—

(a)apply to the court officer;

(b)specify the information requested; and

(c)pay any fee prescribed.

(3) The application—

(a)may be made orally, giving no reasons, if paragraph (4) requires the court officer to supply the information requested;

(b)must be in writing, unless the court otherwise permits, and must explain for what purpose the information is required, in any other case.

(4) The court officer must supply to the applicant—

(a)any information listed in paragraph (6), if—

(i)the information is available to the court officer,

(ii)the supply of the information is not prohibited by a reporting restriction, and

(iii)the trial has not yet concluded, or the verdict was not more than 6 months ago; and

(b)details of any reporting or access restriction ordered by the court.

(5) The court officer must supply that information—

(a)by word of mouth; or

(b)by such other arrangements as the Lord Chancellor directs.

(6) The information that paragraph (4) requires the court officer to supply is—

(a)the date of any hearing in public, unless any party has yet to be notified of that date;

(b)each alleged offence and any plea entered;

(c)the court’s decision at any hearing in public, including any decision about—

(i)bail, or

(ii)the committal, sending or transfer of the case to another court;

(d)whether the case is under appeal;

(e)the outcome of any trial and any appeal; and

(f)the identity of—

(i)the prosecutor,

(ii)the defendant,

(iii)the parties’ representatives, including their addresses, and

(iv)the judge, magistrate or magistrates, or justices’ legal adviser by whom a decision at a hearing in public was made.

(7) If the court so directs, the court officer must—

(a)supply to the applicant, by word of mouth, other information about the case; or

(b)allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

(8) The court may determine an application to which paragraph (7) applies—

(a)at a hearing, in public or in private; or

(b)without a hearing.

(9) The court officer must publish the information listed in paragraph (11) if—

(a)the information is available to the court officer;

(b)the hearing to which the information relates is due to take place in public; and

(c)the publication of the information is not prohibited by a reporting restriction.

(10) The court officer must publish that information—

(a)by notice displayed somewhere prominent in the vicinity of the court room in which the hearing is due to take place;

(b)by such other arrangements as the Lord Chancellor directs, including arrangements for publication by electronic means; and

(c)for no longer than 2 business days.

(11) The information that paragraph (9) requires the court officer to publish is—

(a)the date, time and place of the hearing;

(b)the identity of the defendant; and

(c)such other information as it may be practicable to publish concerning—

(i)the type of hearing,

(ii)the identity of the court,

(iii)the offence or offences alleged, and

(iv)whether any reporting restriction applies.

[Note. Rule 5.8(4) requires the court officer to supply on request the information to which that paragraph refers. On an application for other information about a case, rule 5.8(3)(b), (7) and (8) apply and the court’s decision on such an application may be affected by

(a)any reporting restriction imposed by legislation or by the court (Part 6 lists the reporting restrictions that might apply);

(b)Articles 6, 8 and 10 of the European Convention on Human Rights, and the court’s duty to have regard to the importance of—

(i)dealing with criminal cases in public, and

(ii)allowing a public hearing to be reported to the public;

(c)the Rehabilitation of Offenders Act 1974(80) (section 5 of the Act(81) lists sentences and rehabilitation periods);

(d)section 18 of the Criminal Procedure and Investigations Act 1996(82), which affects the supply of information about material, other than evidence, disclosed by the prosecutor;

(e)the Data Protection Act 1998(83) (sections 34 and 35 of the Act contain relevant exemptions from prohibitions against disclosure that usually apply); and

(f)sections 33, 34 and 35 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012(84), which affect the supply of information about applications for legal aid.]

Supply of written certificate or extract from records

5.9.—(1) This rule applies where legislation—

(a)allows a certificate of conviction or acquittal, or an extract from records kept by the court officer, to be introduced in evidence in criminal proceedings; or

(b)requires such a certificate or extract to be supplied by the court officer to a specified person for a specified purpose.

(2) A person who wants such a certificate or extract must—

(a)apply in writing to the court officer;

(b)specify the certificate or extract required;

(c)explain under what legislation and for what purpose it is required; and

(d)pay any fee prescribed.

(3) If the application satisfies the requirements of that legislation, the court officer must supply the certificate or extract requested—

(a)to a party;

(b)unless the court otherwise directs, to any other applicant.

[Note. Under sections 73 to 75 of the Police and Criminal Evidence Act 1984(85), a certificate of conviction or acquittal, and certain other details from records to which this Part applies, may be admitted in evidence in criminal proceedings.

Under section 115 of the Crime and Disorder Act 1998(86), information from records to which this Part applies may be obtained by specified authorities for the purposes of that Act.

A certificate of conviction or acquittal, and certain other information, required for other purposes, may be obtained from the Secretary of State under sections 112, 113A and 113B of the Police Act 1997(87).]

PART 6REPORTING, ETC. RESTRICTIONS

Contents of this Part
General rules
When this Part appliesrule 6.1
Exercise of court’s powers to which this Part appliesrule 6.2
Court’s power to vary requirements under this Partrule 6.3
Reporting and access restrictions
Reporting and access restrictionsrule 6.4
Varying or removing restrictionsrule 6.5
Trial in privaterule 6.6
Representations in responserule 6.7
Order about restriction or trial in privaterule 6.8
Sound recording and electronic communication
Sound recording and electronic communicationrule 6.9
Forfeiture of unauthorised sound recordingrule 6.10

GENERAL RULES

When this Part applies

6.1.—(1) This Part applies where the court can—

(a)impose a restriction on—

(i)reporting what takes place at a public hearing, or

(ii)public access to what otherwise would be a public hearing;

(b)vary or remove a reporting or access restriction that is imposed by legislation;

(c)withhold information from the public during a public hearing;

(d)order a trial in private;

(e)allow there to take place during a hearing—

(i)sound recording, or

(ii)communication by electronic means.

(2) This Part does not apply to arrangements required by legislation, or directed by the court, in connection with—

(a)sound recording during a hearing, or the transcription of such a recording; or

(b)measures to assist a witness or defendant to give evidence.

[Note. The court can impose reporting restrictions under

(a)section 4(2) of the Contempt of Court Act 1981(88) (postponed report of public hearing);

(b)section 11 of the Contempt of Court Act 1981 (matter withheld from the public during a public hearing);

(c)section 58 of the Criminal Procedure and Investigations Act 1996(89) (postponed report of derogatory assertion in mitigation);

(d)section 45 of the Youth Justice and Criminal Evidence Act 1999(90) (identity of a person under 18);

(e)section 45A of the Youth Justice and Criminal Evidence Act 1999(91) (identity of a witness or victim under 18);

(f)section 46 of the Youth Justice and Criminal Evidence Act 1999(92) (identity of a vulnerable adult witness);

(g)section 82 of the Criminal Justice Act 2003(93) (order for retrial after acquittal); or

(h)section 75 of the Serious Organised Crime and Police Act 2005(94) (identity of a defendant who assisted the police).

There are reporting restrictions imposed by legislation that the court can vary or remove, under

(a)section 49 of the Children and Young Persons Act 1933(95) (youth court proceedings);

(b)section 8C of the Magistrates’ Courts Act 1980(96) (pre-trial ruling in magistrates’ courts);

(c)section 11 of the Criminal Justice Act 1987(97) (preparatory hearing in the Crown Court);

(d)section 1 of the Sexual Offences (Amendment) Act 1992(98) (identity of complainant of sexual offence);

(e)section 37 of the Criminal Procedure and Investigations Act 1996(99) (preparatory hearing in the Crown Court);

(f)section 41 of the Criminal Procedure and Investigations Act 1996(100) (pre-trial ruling in the Crown Court);

(g)section 52A of, and paragraph 3 of Schedule 3 to, the Crime and Disorder Act 1998(101) (allocation and sending for trial proceedings);

(h)section 47 of the Youth Justice and Criminal Evidence Act 1999(102) (special measures direction);

(i)section 141F of the Education Act 2002(103) (restrictions on reporting alleged offences by teachers);

(j)section 71 of the Criminal Justice Act 2003(104) (prosecution appeal against Crown Court ruling); and

(k)section 4A of, and paragraph 1 of Schedule 1 to, the Female Genital Mutilation Act 2003(105) (identity of person against whom a female genital mutilation offence is alleged to have been committed).

There are reporting restrictions imposed by legislation that the court has no power to vary or remove, under

(a)section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926(106) (indecent or medical matter);

(b)section 2 of the Contempt of Court Act 1981(107) (risk of impeding or prejudicing active proceedings).

Access to a youth court is restricted under section 47 of the Children and Young Persons Act 1933(108). See also rule 24.2 (Trial and sentence in a magistrates’ court – general rules).

Under section 36 of the Children and Young Persons Act 1933(109), no-one under 14 may be present in court when someone else is on trial, or during proceedings preliminary to a trial, unless that person is required as a witness, or for the purposes of justice, or the court permits.

The court can restrict access to the courtroom under

(a)section 8(4) of the Official Secrets Act 1920(110), during proceedings for an offence under the Official Secrets Acts 1911 and 1920;

(b)section 37 of the Children and Young Persons Act 1933(111), where the court receives evidence from a person under 18;

(c)section 75 of the Serious Organised Crime and Police Act 2005(112), where the court reviews a sentence passed on a defendant who assisted an investigation.

The court has an inherent power, in exceptional circumstances

(a)to allow information, for example a name or address, to be withheld from the public at a public hearing;

(b)to restrict public access to what otherwise would be a public hearing, for example to control disorder;

(c)to hear a trial in private, for example for reasons of national security.

Under section 9(1) of the Contempt of Court Act 1981(113), it is a contempt of court without the court’s permission to

(a)use in court, or bring into court for use, a device for recording sound;

(b)publish a recording of legal proceedings made by means of such a device; or

(c)use any such recording in contravention of any condition on which permission was granted.

Under section 41 of the Criminal Justice Act 1925(114), it is an offence to take or attempt to take a photograph, or with a view to publication to make or attempt to make a portrait or sketch, of any judge, juror, witness or party, in the courtroom, or in the building or in the precincts of the building in which the court is held, or while that person is entering or leaving the courtroom, building or precincts; or to publish such a photograph, portrait or sketch.

Section 32 of the Crime and Courts Act 2013(115) (Enabling the making, and use, of films and other recordings of proceedings) allows for exceptions to be made to the prohibitions imposed by section 9 of the 1981 Act and section 41 of the 1925 Act.

By reason of sections 15 and 45 of the Senior Courts Act 1981(116), the Court of Appeal and the Crown Court each has an inherent powerto deal with a person for contempt of court for disrupting the proceedings. Under section 12 of the Contempt of Court Act 1981(117), a magistrates’ court has a similar power.

See also

(a)rule 5.5, under which the court officer must make arrangements for recording proceedings in the Crown Court;

(b)Part 18, which applies to live links and other measures to assist a witness or defendant to give evidence;

(c)rule 45.10, which applies to costs orders against a non-party for serious misconduct; and

(d)Part 48, which contains rules about contempt of court.]

Exercise of court’s powers to which this Part applies

6.2.—(1) When exercising a power to which this Part applies, as well as furthering the overriding objective, in accordance with rule 1.3, the court must have regard to the importance of—

(a)dealing with criminal cases in public; and

(b)allowing a public hearing to be reported to the public.

(2) The court may determine an application or appeal under this Part—

(a)at a hearing, in public or in private; or

(b)without a hearing.

(3) But the court must not exercise a power to which this Part applies unless each party and any other person directly affected—

(a)is present; or

(b)has had an opportunity—

(i)to attend, or

(ii)to make representations.

[Note. See also section 121 of the Magistrates’ Courts Act 1980(118) and rule 24.2 (general rules about trial and sentence in a magistrates’ court).]

Court’s power to vary requirements under this Part

6.3.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part;

(b)require an application to be made in writing instead of orally;

(c)consider an application or representations made orally instead of in writing;

(d)dispense with a requirement to—

(i)give notice, or

(ii)serve a written application.

(2) Someone who wants an extension of time must—

(a)apply when making the application or representations for which it is needed; and

(b)explain the delay.

REPORTING AND ACCESS RESTRICTIONS

Reporting and access restrictions

6.4.—(1) This rule applies where the court can—

(a)impose a restriction on—

(i)reporting what takes place at a public hearing, or

(ii)public access to what otherwise would be a public hearing;

(b)withhold information from the public during a public hearing.

(2) Unless other legislation otherwise provides, the court may do so—

(a)on application by a party; or

(b)on its own initiative.

(3) A party who wants the court to do so must—

(a)apply as soon as reasonably practicable;

(b)notify—

(i)each other party, and

(ii)such other person (if any) as the court directs;

(c)specify the proposed terms of the order, and for how long it should last;

(d)explain—

(i)what power the court has to make the order, and

(ii)why an order in the terms proposed is necessary;

(e)where the application is for a reporting direction under section 45A of the Youth Justice and Criminal Evidence Act 1999(119) (Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18), explain—

(i)how the circumstances of the person whose identity is concerned meet the conditions prescribed by that section, having regard to the factors which that section lists; and

(ii)why such a reporting direction would be likely to improve the quality of any evidence given by that person, or the level of co-operation given by that person to any party in connection with the preparation of that party’s case, taking into account the factors listed in that section;

(f)where the application is for a reporting direction under section 46 of the Youth Justice and Criminal Evidence Act 1999(120) (Power to restrict reports about certain adult witnesses in criminal proceedings), explain—

(i)how the witness is eligible for assistance, having regard to the factors listed in that section, and

(ii)why such a reporting direction would be likely to improve the quality of the witness’ evidence, or the level of co-operation given by the witness to the applicant in connection with the preparation of the applicant’s case, taking into account the factors which that section lists.

[Note. Under section 45A(10) or section 46(9) of the Youth Justice and Criminal Evidence Act 1999, if the conditions prescribed by those sections are met the court may make an excepting direction dispensing, to any extent specified, with the restrictions imposed by a reporting direction made under those sections.]

Varying or removing restrictions

6.5.—(1) This rule applies where the court can vary or remove a reporting or access restriction.

(2) Unless other legislation otherwise provides, the court may do so—

(a)on application by a party or person directly affected; or

(b)on its own initiative.

(3) A party or person who wants the court to do so must—

(a)apply as soon as reasonably practicable;

(b)notify—

(i)each other party, and

(ii)such other person (if any) as the court directs;

(c)specify the restriction;

(d)explain, as appropriate, why it should be varied or removed.

(4) A person who wants to appeal to the Crown Court under section 141F of the Education Act 2002(121) must—

(a)serve an appeal notice on—

(i)the Crown Court officer, and

(ii)each other party;

(b)serve on the Crown Court officer, with the appeal notice, a copy of the application to the magistrates’ court;

(c)serve the appeal notice not more than 21 days after the magistrates’ court’s decision against which the appellant wants to appeal; and

(d)in the appeal notice, explain, as appropriate, why the restriction should be maintained, varied or removed.

(5) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.

[Note. Under section 141F(7) of the Education Act 2002, a party to an application to a magistrates’ court to remove the statutory restriction on reporting an alleged offence by a teacher may appeal to the Crown Court against the decision of the magistrates’ court. With the Crown Court’s permission, any other person may appeal against such a decision.]

Trial in private

6.6.—(1) This rule applies where the court can order a trial in private.

(2) A party who wants the court to do so must—

(a)apply in writing not less than 5 business days before the trial is due to begin; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(3) The applicant must explain—

(a)the reasons for the application;

(b)how much of the trial the applicant proposes should be in private; and

(c)why no measures other than trial in private will suffice, such as—

(i)reporting restrictions,

(ii)an admission of facts,

(iii)the introduction of hearsay evidence,

(iv)a direction for a special measure under section 19 of the Youth Justice and Criminal Evidence Act 1999,

(v)a witness anonymity order under section 86 of the Coroners and Justice Act 2009, or

(vi)arrangements for the protection of a witness.

(4) Where the application includes information that the applicant thinks ought not be revealed to another party, the applicant must—

(a)omit that information from the part of the application that is served on that other party;

(b)mark the other part to show that, unless the court otherwise directs, it is only for the court; and

(c)in that other part, explain why the applicant has withheld that information from that other party.

(5) The court officer must at once—

(a)display notice of the application somewhere prominent in the vicinity of the courtroom; and

(b)give notice of the application to reporters by such other arrangements as the Lord Chancellor directs.

(6) The application must be determined at a hearing which—

(a)must be in private, unless the court otherwise directs;

(b)if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld; and

(c)in the Crown Court, must be after the defendant is arraigned but before the jury is sworn.

(7) At the hearing of the application—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii)further representations by the applicant, in the absence of a party from whom information has been withheld; but

(b)the court may direct other arrangements for the hearing.

(8) The court must not hear a trial in private until—

(a)the business day after the day on which it orders such a trial, or

(b)the disposal of any appeal against, or review of, any such order, if later.

Representations in response

6.7.—(1) This rule applies where a party, or person directly affected, wants to make representations about an application or appeal.

(2) Such a party or person must—

(a)serve the representations on—

(i)the court officer,

(ii)the applicant,

(iii)each other party, and

(iv)such other person (if any) as the court directs;

(b)do so as soon as reasonably practicable after notice of the application; and

(c)ask for a hearing, if that party or person wants one, and explain why it is needed.

(3) Representations must—

(a)explain the reasons for any objection;

(b)specify any alternative terms proposed.

Order about restriction or trial in private

6.8.—(1) This rule applies where the court—

(a)orders, varies or removes a reporting or access restriction; or

(b)orders a trial in private.

(2) The court officer must—

(a)record the court’s reasons for the decision; and

(b)as soon as reasonably practicable, arrange for notice of the decision to be—

(i)displayed somewhere prominent in the vicinity of the courtroom, and

(ii)communicated to reporters by such other arrangements as the Lord Chancellor directs.

SOUND RECORDING AND ELECTRONIC COMMUNICATION

Sound recording and electronic communication

6.9.—(1) This rule applies where the court can give permission to—

(a)bring into a hearing for use, or use during a hearing, a device for—

(i)recording sound, or

(ii)communicating by electronic means; or

(b)publish a sound recording made during a hearing.

(2) The court may give such permission—

(a)on application; or

(b)on its own initiative.

(3) A person who wants the court to give such permission must—

(a)apply as soon as reasonably practicable;

(b)notify—

(i)each party, and

(ii)such other person (if any) as the court directs; and

(c)explain why the court should permit the use or publication proposed.

(4) As a condition of the applicant using such a device, the court may direct arrangements to minimise the risk of its use—

(a)contravening a reporting restriction;

(b)disrupting the hearing; or

(c)compromising the fairness of the hearing, for example by affecting—

(i)the evidence to be given by a witness, or

(ii)the verdict of a jury.

(5) Such a direction may require that the device is used only—

(a)in a specified part of the courtroom;

(b)for a specified purpose;

(c)for a purpose connected with the applicant’s activity as a member of a specified group, for example representatives of news-gathering or reporting organisations;

(d)at a specified time, or in a specified way.

Forfeiture of unauthorised sound recording

6.10.—(1) This rule applies where someone without the court’s permission—

(a)uses a device for recording sound during a hearing; or

(b)publishes a sound recording made during a hearing.

(2) The court may exercise its power to forfeit the device or recording—

(a)on application by a party, or on its own initiative;

(b)provisionally, despite rule 6.2(3), to allow time for representations.

(3) A party who wants the court to forfeit a device or recording must—

(a)apply as soon as reasonably practicable;

(b)notify—

(i)as appropriate, the person who used the device, or who published the recording, and

(ii)each other party; and

(c)explain why the court should exercise that power.

[Note. Under section 9(3) of the Contempt of Court Act 1981(122), the court can forfeit any device or recording used or made in contravention of section 9(1) of the Act.]

PART 7STARTING A PROSECUTION IN A MAGISTRATES’ COURT

Contents of this Part
When this Part appliesrule 7.1
Information and written chargerule 7.2
Allegation of offence in information or chargerule 7.3
Summons, warrant and requisitionrule 7.4

When this Part applies

7.1.—(1) This Part applies in a magistrates’ court where—

(a)a prosecutor wants the court to issue a summons or warrant under section 1 of the Magistrates’ Courts Act 1980(123);

(b)a prosecutor with the power to do so issues—

(i)a written charge and requisition, or

(ii)a written charge and single justice procedure notice

under section 29 of the Criminal Justice Act 2003(124);

(c)a person who is in custody is charged with an offence.

(2) In this Part, ‘authorised prosecutor’ means a prosecutor authorised under section 29 of the Criminal Justice Act 2003 to issue a written charge and requisition or single justice procedure notice.

[Note. Under section 1 of the Magistrates’ Courts Act 1980, on receiving a formal statement (described in that section as an ‘information’) alleging that someone has committed an offence, the court may issue—

(a)a summons requiring that person to attend court; or

(b)a warrant for that person’s arrest, if—

(i)the alleged offence must or may be tried in the Crown Court,

(ii)the alleged offence is punishable with imprisonment, or

(iii)the person’s address cannot be established sufficiently clearly to serve a summons or requisition.

The powers of the court to which this Part applies may be exercised by a single justice of the peace.

Under section 29 of the Criminal Justice Act 2003, a prosecutor authorised under that section may issue a written charge alleging that someone has committed an offence, and either—

(a)a requisition requiring that person to attend court; or

(b)a notice that the single justice procedure under section 16A of the Magistrates’ Courts Act 1980(125) and rule 24.9 of these Rules applies.

Section 30 of the 2003 Act(126) contains other provisions about written charges, requisitions and single justice procedure notices.

A person detained under a power of arrest may be charged if the custody officer decides that there is sufficient evidence to do so. See sections 37 and 38 of the Police and Criminal Evidence Act 1984(127).]

Information and written charge

7.2.—(1) A prosecutor who wants the court to issue a summons must—

(a)serve an information in writing on the court officer; or

(b)unless other legislation prohibits this, present an information orally to the court, with a written record of the allegation that it contains.

(2) A prosecutor who wants the court to issue a warrant must—

(a)serve on the court officer—

(i)an information in writing, or

(ii)a copy of a written charge that has been issued; or

(b)present to the court either of those documents.

(3) An authorised prosecutor who issues a written charge must notify the court officer immediately.

(4) A single document may contain—

(a)more than one information; or

(b)more than one written charge.

(5) Where an offence can be tried only in a magistrates’ court, then unless other legislation otherwise provides—

(a)a prosecutor must serve an information on the court officer or present it to the court; or

(b)an authorised prosecutor must issue a written charge,

not more than 6 months after the offence alleged.

(6) Where an offence can be tried in the Crown Court then—

(a)a prosecutor must serve an information on the court officer or present it to the court; or

(b)an authorised prosecutor must issue a written charge,

within any time limit that applies to that offence.

[Note. In some legislation, including the Magistrates’ Courts Act 1980, serving an information on the court officer or presenting it to the court is described as ‘laying’ that information.

The time limits for serving or presenting an information and for issuing a written charge are prescribed by section 127 of the Magistrates’ Courts Act 1980(128) and section 30(5) of the Criminal Justice Act 2003(129).

Part 46 (Representatives) contains rules allowing a member, officer or employee of a prosecutor, on the prosecutor’s behalf, to—

(a)serve on the court officer or present to the court an information; or

(b)issue a written charge and requisition.

See Part 3 for the court’s general powers of case management, including power to consider applications and give directions for (among other things) the amendment of an information or charge and for separate trials.

See also Part 32 (Breach, revocation and amendment of community and other orders). Rule 32.2(2) (Application by responsible officer) applies rules 7.2 to 7.4 to the procedure with which that rule deals.

The Practice Direction sets out forms of information for use in connection with this rule.]

Allegation of offence in information or charge

7.3.—(1) An allegation of an offence in an information or charge must contain—

(a)a statement of the offence that—

(i)describes the offence in ordinary language, and

(ii)identifies any legislation that creates it; and

(b)such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

Summons, warrant and requisition

7.4.—(1) The court may issue or withdraw a summons or warrant—

(a)without giving the parties an opportunity to make representations; and

(b)without a hearing, or at a hearing in public or in private.

(2) A summons, warrant or requisition may be issued in respect of more than one offence.

(3) A summons or requisition must—

(a)contain notice of when and where the defendant is required to attend the court;

(b)specify each offence in respect of which it is issued;

(c)in the case of a summons, identify—

(i)the court that issued it, unless that is otherwise recorded by the court officer, and

(ii)the court office for the court that issued it; and

(d)in the case of a requisition, identify the person under whose authority it is issued.

(4) A summons may be contained in the same document as an information.

(5) A requisition may be contained in the same document as a written charge.

(6) Where the court issues a summons—

(a)the prosecutor must—

(i)serve it on the defendant, and

(ii)notify the court officer; or

(b)the court officer must—

(i)serve it on the defendant, and

(ii)notify the prosecutor.

(7) Where an authorised prosecutor issues a requisition that prosecutor must—

(a)serve on the defendant—

(i)the requisition, and

(ii)the written charge; and

(b)serve a copy of each on the court officer.

(8) Unless it would be inconsistent with other legislation, a replacement summons or requisition may be issued without a fresh information or written charge where the one replaced—

(a)was served by leaving or posting it under rule 4.7 (documents that must be served only by handing them over, leaving or posting them); but

(b)is shown not to have been received by the addressee.

(9) A summons or requisition issued to a defendant under 18 may require that defendant’s parent or guardian to attend the court with the defendant, or a separate summons or requisition may be issued for that purpose.

[Note. Part 13 contains other rules about warrants.

Section 47 of the Magistrates’ Courts Act 1980(130) and section 30(5) of the Criminal Justice Act 2003 make special provision about time limits under other legislation for the issue and service of a summons or requisition, where service by post is not successful.

Section 34A of the Children and Young Persons Act 1933(131) allows, and in some cases requires, the court to summon the parent or guardian of a defendant under 18.]

PART 8INITIAL DETAILS OF THE PROSECUTION CASE

Contents of this Part
When this Part appliesrule 8.1
Providing initial details of the prosecution caserule 8.2
Content of initial detailsrule 8.3

When this Part applies

8.1.  This Part applies in a magistrates’ court.

Providing initial details of the prosecution case

8.2.—(1) The prosecutor must serve initial details of the prosecution case on the court officer—

(a)as soon as practicable; and

(b)in any event, no later than the beginning of the day of the first hearing.

(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—

(a)as soon as practicable; and

(b)in any event, no later than the beginning of the day of the first hearing.

(3) Where a defendant does not request those details, the prosecutor must make them available to the defendant at, or before, the beginning of the day of the first hearing.

Content of initial details

8.3.  Initial details of the prosecution case must include—

(a)where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged—

(i)a summary of the circumstances of the offence, and

(ii)the defendant’s criminal record, if any;

(b)where paragraph (a) does not apply—

(i)a summary of the circumstances of the offence,

(ii)any account given by the defendant in interview, whether contained in that summary or in another document,

(iii)any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,

(iv)the defendant’s criminal record, if any, and

(v)any available statement of the effect of the offence on a victim, a victim’s family or others.

PART 9ALLOCATION AND SENDING FOR TRIAL

Contents of this Part
General rules
When this Part appliesrule 9.1
Exercise of magistrates’ court’s powersrule 9.2
Matters to be specified on sending for trialrule 9.3
Duty of justices’ legal adviserrule 9.4
Duty of magistrates’ court officerrule 9.5
Sending without allocation for Crown Court trial
Prosecutor’s notice requiring Crown Court trialrule 9.6
Sending for Crown Court trialrule 9.7
Allocation for magistrates’ court or Crown Court trial
Adult defendant: request for plearule 9.8
Adult defendant: guilty plearule 9.9
Adult defendant: not guilty plearule 9.10
Adult defendant: allocation for magistrates’ court trialrule 9.11
Adult defendant: prosecutor’s application for Crown Court trialrule 9.12
Young defendantrule 9.13
Allocation and sending for Crown Court trialrule 9.14
Crown Court initial procedure after sending for trial
Service of prosecution evidencerule 9.15
Application to dismiss offence sent for Crown Court trialrule 9.16

GENERAL RULES

When this Part applies

9.1.—(1) This Part applies to the allocation and sending of cases for trial under—

(a)sections 17A to 26 of the Magistrates’ Courts Act 1980(132); and

(b)sections 50A to 52 of the Crime and Disorder Act 1998(133).

(2) Rules 9.6 and 9.7 apply in a magistrates’ court where the court must, or can, send a defendant to the Crown Court for trial, without allocating the case for trial there.

(3) Rules 9.8 to 9.14 apply in a magistrates’ court where the court must allocate the case to a magistrates’ court or to the Crown Court for trial.

(4) Rules 9.15 and 9.16 apply in the Crown Court, where a defendant is sent for trial there.

[Note. A magistrates’ court’s powers to send a defendant to the Crown Court for trial are contained in section 51 of the Crime and Disorder Act 1998(134).

The exercise of the court’s powers is affected by

(a)the classification of the offence (and the general rule, subject to exceptions, is that an offence classified as triable on indictment exclusively must be sent for Crown Court trial; an offence classified as triable only summarily must be tried in a magistrates’ court; and an offence classified as triable either on indictment or summarily must be allocated to one or the other court for trial: see in particular sections 50A, 51 and 51A of the 1998 Act(135) and section 19 of the Magistrates’ Courts Act 1980(136);

(b)the defendant’s age (and the general rule, subject to exceptions, is that an offence alleged against a defendant under 18 must be tried in a magistrates’ court sitting as a youth court: see in particular sections 24 and 24A of the 1980 Act(137);

(c)whether the defendant is awaiting Crown Court trial for another offence;

(d)whether another defendant, charged with the same offence, is awaiting Crown Court trial for that offence; and

(e)in some cases (destroying or damaging property; aggravated vehicle taking), whether the value involved is more or less than £5,000.

The court’s powers of sending and allocation, including its powers (i) to receive a defendant’s indication of an intention to plead guilty (see rules 9.7, 9.8 and 9.13) and (ii) to give an indication of likely sentence (see rule 9.11), may be exercised by a single justice: see sections 51 and 51A(11) of the 1998 Act, and sections 17E, 18(5) and 24D of the 1980 Act(138).]

Exercise of magistrates’ court’s powers

9.2.—(1) This rule applies to the exercise of the powers to which rules 9.6 to 9.14 apply.

(2) The general rule is that the court must exercise its powers at a hearing in public, but it may exercise any power it has to—

(a)withhold information from the public; or

(b)order a hearing in private.

(3) The general rule is that the court must exercise its powers in the defendant’s presence, but it may exercise the powers to which the following rules apply in the defendant’s absence on the conditions specified—

(a)where rule 9.8 (Adult defendant: request for plea), rule 9.9 (Adult defendant: guilty plea) or rule 9.13 (Young defendant) applies, if—

(i)the defendant is represented, and

(ii)the defendant’s disorderly conduct makes his or her presence in the courtroom impracticable;

(b)where rule 9.10 (Adult defendant: not guilty plea) or rule 9.11 (Adult defendant: allocation for magistrates’ court trial) applies, if—

(i)the defendant is represented and waives the right to be present, or

(ii)the defendant’s disorderly conduct makes his or her presence in the courtroom impracticable.

(4) The court may exercise its power to adjourn—

(a)if either party asks; or

(b)on its own initiative.

(5) Where the court on the same occasion deals with two or more offences alleged against the same defendant, the court must deal with those offences in the following sequence—

(a)any to which rule 9.6 applies (Prosecutor’s notice requiring Crown Court trial);

(b)any to which rule 9.7 applies (sending for Crown Court trial, without allocation there), in this sequence—

(i)any the court must send for trial, then

(ii)any the court can send for trial; and

(c)any to which rule 9.14 applies (Allocation and sending for Crown Court trial).

(6) Where the court on the same occasion deals with two or more defendants charged jointly with an offence that can be tried in the Crown Court then in the following sequence—

(a)the court must explain, in terms each defendant can understand (with help, if necessary), that if the court sends one of them to the Crown Court for trial then the court must send for trial in the Crown Court, too, any other of them—

(i)who is charged with the same offence as the defendant sent for trial, or with an offence which the court decides is related to that offence,

(ii)who does not wish to plead guilty to each offence with which he or she is charged, and

(iii)(if that other defendant is under 18, and the court would not otherwise have sent him or her for Crown Court trial) where the court decides that sending is necessary in the interests of justice

even if the court by then has decided to allocate that other defendant for magistrates’ court trial; and

(b)the court may ask the defendants questions to help it decide in what order to deal with them.

(7) After following paragraph (5), if it applies, where the court on the same occasion—

(a)deals with two or more defendants charged jointly with an offence that can be tried in the Crown Court;

(b)allocates any of them to a magistrates’ court for trial; and

(c)then sends another one of them to the Crown Court for trial,

the court must deal again with each one whom, on that occasion, it has allocated for magistrates’ court trial.

[Note. See sections 50A, 51, 51A and 52 of the Crime and Disorder Act 1998(139) and sections 17A, 17B, 17C, 18, 23, 24A, 24B and 24C of the Magistrates’ Courts Act 1980(140).

Under sections 57A to 57E of the 1998 Act(141), the court may require a defendant to attend by live link a hearing to which this Part applies.

Where a defendant waives the right to be present then the court may nonetheless require his or her attendance by summons or warrant: see section 26 of the 1980 Act(142).

Under section 52A of the 1998 Act(143), reporting restrictions apply to the proceedings to which rules 9.6 to 9.14 apply.

Part 46 contains rules allowing a representative to act on a defendant’s behalf for the purposes of these Rules.

Part 3 contains rules about the court’s powers of case management.]

Matters to be specified on sending for trial

9.3.—(1) Where the court sends a defendant to the Crown Court for trial, it must specify—

(a)each offence to be tried;

(b)in respect of each, the power exercised to send the defendant for trial for that offence; and

(c)the Crown Court centre at which the trial will take place.

(2) In a case in which the prosecutor serves a notice to which rule 9.6(1)(a) applies (notice requiring Crown Court trial in a case of serious or complex fraud), the court must specify the Crown Court centre identified by that notice.

(3) In any other case, in deciding the Crown Court centre at which the trial will take place, the court must take into account—

(a)the convenience of the parties and witnesses;

(b)how soon a suitable courtroom will be available; and

(c)the directions on the allocation of Crown Court business contained in the Practice Direction.

[Note. See sections 51 and 51D of the Crime and Disorder Act 1998(144).]

Duty of justices’ legal adviser

9.4.—(1) This rule applies—

(a)only in a magistrates’ court; and

(b)unless the court—

(i)includes a District Judge (Magistrates’ Courts), and

(ii)otherwise directs.

(2) On the court’s behalf, a justices’ legal adviser may—

(a)read the allegation of the offence to the defendant;

(b)give any explanation and ask any question required by the rules in this Part;

(c)make any announcement required by the rules in this Part, other than an announcement of—

(i)the court’s decisions about allocation and sending,

(ii)any indication by the court of likely sentence, or

(iii)sentence.

(3) A justices’ legal adviser must—

(a)assist an unrepresented defendant;

(b)give the court such advice as is required to enable it to exercise its powers;

(c)if required, attend the members of the court outside the courtroom to give such advice, but inform the parties of any advice so given.

[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 2003(145).]

Duty of magistrates’ court officer

9.5.—(1) The magistrates’ court officer must—

(a)serve notice of a sending for Crown Court trial on—

(i)the Crown Court officer, and

(ii)the parties;

(b)in that notice record—

(i)the matters specified by the court under rule 9.3 (Matters to be specified on sending for trial),

(ii)any indication of intended guilty plea given by the defendant under rule 9.7 (Sending for Crown Court trial),

(iii)any decision by the defendant to decline magistrates’ court trial under rule 9.11 (Adult defendant: allocation to magistrates’ court for trial), and

(iv)the date on which any custody time limit will expire;

(c)record any indication of likely sentence to which rule 9.11 applies; and

(d)give the court such other assistance as it requires.

(2) The magistrates’ court officer must include with the notice served on the Crown Court officer—

(a)the initial details of the prosecution case served by the prosecutor under rule 8.2;

(b)a record of any—

(i)listing or case management direction affecting the Crown Court,

(ii)direction about reporting restrictions,

(iii)decision about bail, for the purposes of section 5 of the Bail Act 1976(146),

(iv)recognizance given by a surety, or

(v)representation order; and

(c)if relevant, any available details of any—

(i)interpreter,

(ii)intermediary, or

(iii)other supporting adult, where the defendant is assisted by such a person.

[Note. See sections 51 and 51D of the Crime and Disorder Act 1998(147), and section 20A of the Magistrates’ Courts Act 1980(148).]

SENDING WITHOUT ALLOCATION FOR CROWN COURT TRIAL

Prosecutor’s notice requiring Crown Court trial

9.6.—(1) This rule applies where a prosecutor with power to do so requires a magistrates’ court to send for trial in the Crown Court—

(a)a case of serious or complex fraud; or

(b)a case which will involve a child witness.

(2) The prosecutor must serve written notice of that requirement—

(a)on the magistrates’ court officer and on the defendant; and

(b)before trial in a magistrates’ court begins under Part 24 (Trial and sentence in a magistrates’ court).

(3) The notice must identify—

(a)the power on which the prosecutor relies; and

(b)the Crown Court centre at which the prosecutor wants the trial to take place.

(4) The prosecutor—

(a)must, when choosing a Crown Court centre, take into account the matters listed in rule 9.3(3) (court deciding to which Crown Court centre to send a case); and

(b)may change the centre identified before the case is sent for trial.

[Note. Under section 51B of the Crime and Disorder Act 1998(149), the Director of Public Prosecutions or a Secretary of State may require the court to send a case for trial in the Crown Court if, in that prosecutor’s opinion, the evidence of the offence charged

(a)is sufficient for the person charged to be put on trial for the offence; and

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

Under section 51C of the Crime and Disorder Act 1998(150), the Director of Public Prosecutions may require the court to send for trial in the Crown Court a case involving one of certain specified violent or sexual offences if, in the Director’s opinion

(a)the evidence of the offence would be sufficient for the person charged to be put on trial for that offence;

(b)a child would be called as a witness at the trial; and

(c)for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court.

‘Child’ for these purposes is defined by section 51C(7) of the 1998 Act.]

Sending for Crown Court trial

9.7.—(1) This rule applies where a magistrates’ court must, or can, send a defendant to the Crown Court for trial without first allocating the case for trial there.

(2) The court must read the allegation of the offence to the defendant.

(3) The court must explain, in terms the defendant can understand (with help, if necessary)—

(a)the allegation, unless it is self-explanatory;

(b)that the offence is one for which the court, as appropriate—

(i)must send the defendant to the Crown Court for trial because the offence is one which can only be tried there or because the court for some other reason is required to send that offence for trial,

(ii)may send the defendant to the Crown Court for trial if the magistrates’ court decides that the offence is related to one already sent for trial there, or

(iii)(where the offence is low-value shoplifting and the defendant is 18 or over) must send the defendant to the Crown Court for trial if the defendant wants to be tried there;

(c)that reporting restrictions apply, which the defendant may ask the court to vary or remove.

(4) In the following sequence, the court must then—

(a)invite the prosecutor to—

(i)identify the court’s power to send the defendant to the Crown Court for trial for the offence, and

(ii)make representations about any ancillary matters, including bail and directions for the management of the case in the Crown Court;

(b)invite the defendant to make representations about—

(i)the court’s power to send the defendant to the Crown Court, and

(ii)any ancillary matters;

(c)(where the offence is low-value shoplifting and the defendant is 18 or over) offer the defendant the opportunity to require trial in the Crown Court; and

(d)decide whether or not to send the defendant to the Crown Court for trial.

(5) If the court sends the defendant to the Crown Court for trial, it must—

(a)ask whether the defendant intends to plead guilty in the Crown Court and—

(i)if the answer is ‘yes’, make arrangements for the Crown Court to take the defendant’s plea as soon as possible, or

(ii)if the defendant does not answer, or the answer is ‘no’, make arrangements for a case management hearing in the Crown Court; and

(b)give any other ancillary directions.

[Note. See sections 51, 51A and 51E of the Crime and Disorder Act 1998(151), and sections 22A and 24A of the Magistrates’ Courts Act 1980(152).

See also Part 6 (Reporting, etc. restrictions).]

ALLOCATION FOR MAGISTRATES’ COURT OR CROWN COURT TRIAL

Adult defendant: request for plea

9.8.—(1) This rule applies where—

(a)the defendant is 18 or over; and

(b)the court must decide whether a case is more suitable for trial in a magistrates’ court or in the Crown Court.

(2) The court must read the allegation of the offence to the defendant.

(3) The court must explain, in terms the defendant can understand (with help, if necessary)—

(a)the allegation, unless it is self-explanatory;

(b)that the offence is one which can be tried in a magistrates’ court or in the Crown Court;

(c)that the court is about to ask whether the defendant intends to plead guilty;

(d)that if the answer is ‘yes’, then the court must treat that as a guilty plea and must sentence the defendant, or commit the defendant to the Crown Court for sentence;

(e)that if the defendant does not answer, or the answer is ‘no’, then—

(i)the court must decide whether to allocate the case to a magistrates’ court or to the Crown Court for trial,

(ii)the value involved may require the court to order trial in a magistrates’ court (where the offence is one to which section 22 of the Magistrates’ Courts Act 1980(153) applies), and

(iii)if the court allocates the case to a magistrates’ court for trial, the defendant can nonetheless require trial in the Crown Court (unless the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies and the value involved requires magistrates’ court trial); and

(f)that reporting restrictions apply, which the defendant may ask the court to vary or remove.

(4) The court must then ask whether the defendant intends to plead guilty.

[Note. See section 17A of the Magistrates’ Courts Act 1980(154).

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence after that defendant has indicated an intention to plead guilty where this rule applies, see sections 4 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000(155).

See also Part 6 (Reporting, etc. restrictions).]

Adult defendant: guilty plea

9.9.—(1) This rule applies where—

(a)rule 9.8 applies; and

(b)the defendant indicates an intention to plead guilty.

(2) The court must exercise its power to deal with the case—

(a)as if the defendant had just pleaded guilty at a trial in a magistrates’ court; and

(b)in accordance with rule 24.11 (Procedure if the court convicts).

[Note. See section 17A of the Magistrates’ Courts Act 1980.]

Adult defendant: not guilty plea

9.10.—(1) This rule applies where—

(a)rule 9.8 applies; and

(b)the defendant—

(i)indicates an intention to plead not guilty, or

(ii)gives no indication of intended plea.

(2) In the following sequence, the court must then—

(a)where the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies, explain in terms the defendant can understand (with help, if necessary) that—

(i)if the court decides that the value involved clearly is less than £5,000, the court must order trial in a magistrates’ court,

(ii)if the court decides that it is not clear whether that value is more or less than £5,000, then the court will ask whether the defendant agrees to be tried in a magistrates’ court, and

(iii)if the answer to that question is ‘yes’, then the court must order such a trial and if the defendant is convicted then the maximum sentence is limited;

(b)invite the prosecutor to—

(i)identify any previous convictions of which it can take account, and

(ii)make representations about how the court should allocate the case for trial, including representations about the value involved, if relevant;

(c)invite the defendant to make such representations;

(d)where the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies—

(i)if it is not clear whether the value involved is more or less than £5,000, ask whether the defendant agrees to be tried in a magistrates’ court,

(ii)if the defendant’s answer to that question is ‘yes’, or if that value clearly is less than £5,000, order a trial in a magistrates’ court,

(iii)if the defendant does not answer that question, or the answer is ‘no’, or if that value clearly is more than £5,000, apply paragraph (2)(e);

(e)exercise its power to allocate the case for trial, taking into account—

(i)the adequacy of a magistrates’ court’s sentencing powers,

(ii)any representations by the parties, and

(iii)any allocation guidelines issued by the Sentencing Council.

[Note. See sections 17A, 18, 19, 22 and 24A of the Magistrates’ Courts Act 1980(156).

Under section 22 of the 1980 Act, some offences, which otherwise could be tried in a magistrates’ court or in the Crown Court, must be tried in a magistrates’ court in the circumstances described in this rule.

The convictions of which the court may take account are those specified by section 19 of the 1980 Act.

The Sentencing Council may issue allocation guidelines under section 122 of the Coroners and Justice Act 2009(157).]

Adult defendant: allocation for magistrates’ court trial

9.11.—(1) This rule applies where—

(a)rule 9.10 applies; and

(b)the court allocates the case to a magistrates’ court for trial.

(2) The court must explain, in terms the defendant can understand (with help, if necessary) that—

(a)the court considers the case more suitable for trial in a magistrates’ court than in the Crown Court;

(b)if the defendant is convicted at a magistrates’ court trial, then in some circumstances the court may commit the defendant to the Crown Court for sentence;

(c)if the defendant does not agree to a magistrates’ court trial, then the court must send the defendant to the Crown Court for trial; and

(d)before deciding whether to accept magistrates’ court trial, the defendant may ask the court for an indication of whether a custodial or non-custodial sentence is more likely in the event of a guilty plea at such a trial, but the court need not give such an indication.

(3) If the defendant asks for such an indication of sentence and the court gives such an indication—

(a)the court must then ask again whether the defendant intends to plead guilty;

(b)if, in answer to that question, the defendant indicates an intention to plead guilty, then the court must exercise its power to deal with the case—

(i)as if the defendant had just pleaded guilty to an offence that can be tried only in a magistrates’ court, and

(ii)in accordance with rule 24.11 (Procedure if the court convicts);

(c)if, in answer to that question, the defendant indicates an intention to plead not guilty, or gives no indication of intended plea, in the following sequence the court must then—

(i)ask whether the defendant agrees to trial in a magistrates’ court,

(ii)if the defendant’s answer to that question is ‘yes’, order such a trial,

(iii)if the defendant does not answer that question, or the answer is ‘no’, apply rule 9.14.

(4) If the defendant asks for an indication of sentence but the court gives none, or if the defendant does not ask for such an indication, in the following sequence the court must then—

(a)ask whether the defendant agrees to trial in a magistrates’ court;

(b)if the defendant’s answer to that question is ‘yes’, order such a trial;

(c)if the defendant does not answer that question, or the answer is ‘no’, apply rule 9.14.

[Note. See section 20 of the Magistrates’ Courts Act 1980(158).

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence after that defendant has been convicted at a magistrates’ court trial, see sections 3, 3A, 3C, and 6 of the Powers of Criminal Courts (Sentencing) Act 2000(159).

For the circumstances in which an indication of sentence to which this rule applies restricts the sentencing powers of a court, see section 20A of the 1980 Act(160).]

Adult defendant: prosecutor’s application for Crown Court trial

9.12.—(1) This rule applies where—

(a)rule 9.11 applies;

(b)the defendant agrees to trial in a magistrates’ court; but

(c)the prosecutor wants the court to exercise its power to send the defendant to the Crown Court for trial instead.

(2) The prosecutor must—

(a)apply before trial in a magistrates’ court begins under Part 24 (Trial and sentence in a magistrates’ court); and

(b)notify—

(i)the defendant, and

(ii)the magistrates’ court officer.

(3) The court must determine an application to which this rule applies before it deals with any other pre-trial application.

[Note. See sections 8A and 25 of the Magistrates’ Courts Act 1980(161). Under section 25(2B), the court may grant an application to which this rule applies only if it is satisfied that the sentence which a magistrates’ court would have power to impose would be inadequate.]

Young defendant

9.13.—(1) This rule applies where—

(a)the defendant is under 18; and

(b)the court must decide whether to send the defendant for Crown Court trial instead of ordering trial in a youth court.

(2) The court must read the allegation of the offence to the defendant.

(3) The court must explain, in terms the defendant can understand (with help, if necessary)—

(a)the allegation, unless it is self-explanatory;

(b)that the offence is one which can be tried in the Crown Court instead of in a youth court;

(c)that the court is about to ask whether the defendant intends to plead guilty;

(d)that if the answer is ‘yes’, then the court must treat that as a guilty plea and must sentence the defendant, or commit the defendant to the Crown Court for sentence;

(e)that if the defendant does not answer, or the answer is ‘no’, then the court must decide whether to send the defendant for Crown Court trial instead of ordering trial in a youth court; and

(f)that reporting restrictions apply, which the defendant may ask the court to vary or remove.

(4) The court must then ask whether the defendant intends to plead guilty.

(5) If the defendant’s answer to that question is ‘yes’, the court must exercise its power to deal with the case—

(a)as if the defendant had just pleaded guilty at a trial in a youth court; and

(b)in accordance with rule 24.11 (Procedure if the court convicts).

(6) If the defendant does not answer that question, or the answer is ‘no’, in the following sequence the court must then—

(a)invite the prosecutor to make representations about whether Crown Court or youth court trial is more appropriate;

(b)invite the defendant to make such representations;

(c)exercise its power to allocate the case for trial, taking into account—

(i)the offence and the circumstances of the offence,

(ii)the suitability of a youth court’s sentencing powers,

(iii)where the defendant is jointly charged with an adult, whether it is necessary in the interests of justice for them to be tried together in the Crown Court, and

(iv)any representations by the parties.

[Note. See section 24A of the Magistrates’ Courts Act 1980(162).

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant who is under 18 to the Crown Court for sentence after that defendant has indicated a guilty plea, see sections 3B, 3C, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 2000(163).]

Allocation and sending for Crown Court trial

9.14.—(1) This rule applies where—

(a)under rule 9.10 or rule 9.13, the court allocates the case to the Crown Court for trial;

(b)under rule 9.11, the defendant does not agree to trial in a magistrates’ court; or

(c)under rule 9.12, the court grants the prosecutor’s application for Crown Court trial.

(2) In the following sequence, the court must—

(a)invite the prosecutor to make representations about any ancillary matters, including bail and directions for the management of the case in the Crown Court;

(b)invite the defendant to make any such representations; and

(c)exercise its powers to—

(i)send the defendant to the Crown Court for trial, and

(ii)give any ancillary directions.

[Note. See sections 21 and 24A of the Magistrates’ Courts Act 1980(164) and section 51 of the Crime and Disorder 1998(165). See also rule 9.3 (matters to be specified on sending for trial).]

CROWN COURT INITIAL PROCEDURE AFTER SENDING FOR TRIAL

Service of prosecution evidence

9.15.—(1) This rule applies where—

(a)a magistrates’ court sends the defendant to the Crown Court for trial; and

(b)the prosecutor serves on the defendant copies of the documents containing the evidence on which the prosecution case relies.

(2) The prosecutor must at the same time serve copies of those documents on the Crown Court officer.

[Note. See the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(166). The time for service of the prosecution evidence is prescribed by regulation 2. It is

(a)not more than 50 days after sending for trial, where the defendant is in custody; and

(b)not more than 70 days after sending for trial, where the defendant is on bail.]

Application to dismiss offence sent for Crown Court trial

9.16.—(1) This rule applies where a defendant wants the Crown Court to dismiss an offence sent for trial there.

(2) The defendant must—

(a)apply in writing—

(i)not more than 28 days after service of the prosecution evidence, and

(ii)before the defendant’s arraignment;

(b)serve the application on—

(i)the Crown Court officer, and

(ii)each other party;

(c)in the application—

(i)explain why the prosecution evidence would not be sufficient for the defendant to be properly convicted,

(ii)ask for a hearing, if the defendant wants one, and explain why it is needed,

(iii)identify any witness whom the defendant wants to call to give evidence in person, with an indication of what evidence the witness can give,

(iv)identify any material already served that the defendant thinks the court will need to determine the application, and

(v)include any material not already served on which the defendant relies.

(3) A prosecutor who opposes the application must—

(a)serve notice of opposition, not more than 14 days after service of the defendant’s notice, on—

(i)the Crown Court officer, and

(ii)each other party;

(b)in the notice of opposition—

(i)explain the grounds of opposition,

(ii)ask for a hearing, if the prosecutor wants one, and explain why it is needed,

(iii)identify any witness whom the prosecutor wants to call to give evidence in person, with an indication of what evidence the witness can give,

(iv)identify any material already served that the prosecutor thinks the court will need to determine the application, and

(v)include any material not already served on which the prosecutor relies.

(4) The court may determine an application under this rule—

(a)at a hearing, in public or in private, or without a hearing;

(b)in the absence of—

(i)the defendant who made the application,

(ii)the prosecutor, if the prosecutor has had at least 14 days in which to serve notice opposing the application.

(5) The court may—

(a)shorten or extend (even after it has expired) a time limit under this rule;

(b)allow a witness to give evidence in person even if that witness was not identified in the defendant’s application or in the prosecutor’s notice.

[Note. Under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998(167), on an application by the defendant the Crown Court must dismiss an offence charged if it appears to the court that the evidence would not be sufficient for the applicant to be properly convicted.]

PART 10THE INDICTMENT

Contents of this Part
Service of indictmentrule 10.1
Form and content of indictmentrule 10.2

[Note. See also sections 3, 4 and 5 of the Indictments Act 1915(168) and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(169).]

Service of indictment

10.1.—(1) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after—

(a)service on the defendant and on the Crown Court officer of copies of the documents containing the evidence on which the charge or charges are based, in a case where the defendant is sent for trial;

(b)a High Court judge gives permission to serve a draft indictment;

(c)the Court of Appeal orders a retrial.

(2) The Crown Court may extend the time limit, even after it has expired.

(3) Unless the Crown Court otherwise directs, the court officer must—

(a)endorse any paper copy of the indictment made for the court with—

(i)a note to identify it as the indictment served under this rule, and

(ii)the date on which the draft indictment was served on the court officer; and

(b)serve a copy of the indictment on all parties.

[Note. In some other legislation, serving a draft indictment on the Crown Court officer is described as “preferring a bill of indictment”. Under section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, a draft indictment (“bill of indictment”) becomes an indictment when it is so served (“preferred”).

See Part 3 for the court’s general powers of case management, including power to consider applications and give directions for (among other things) the amendment of an indictment and for separate trials under section 5 of the Indictments Act 1915.

A magistrates’ court may send a defendant for trial in the Crown Court under section 51 or 51A of the Crime and Disorder Act 1998(170). Under section 51D of that Act(171) the magistrates’ court must notify the Crown Court of the offence or offences for which the defendant is sent for trial. Paragraph 1 of Schedule 3 to that Act(172), and the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(173), deal with the service of prosecution evidence in a case sent for trial. See Part 9 for the procedure on allocation and sending for trial.

The procedure for applying for the permission of a High Court judge to serve a draft indictment is in rules 6 to 10 of the Indictments (Procedure) Rules 1971(174). See also the Practice Direction.

The Court of Appeal may order a retrial under section 8 of the Criminal Appeal Act 1968(175) (on a defendant’s appeal against conviction) or under section 77 of the Criminal Justice Act 2003(176) (on a prosecutor’s application for the retrial of a serious offence after acquittal). Section 8 of the 1968 Act and section 84 of the 2003 Act require the arraignment of a defendant within 2 months. See also rules 27.6 and 39.14.

With effect from 30th August 2013, Schedule 3 to the Criminal Justice Act 2003 abolished committal for trial under section 6 of the Magistrates’ Courts Act 1980(177), and transfer for trial under section 4 of the Criminal Justice Act 1987(178) (serious fraud cases) or under section 53 of the Criminal Justice Act 1991(179) (certain cases involving children).]

Form and content of indictment

10.2.—(1) An indictment must be in one of the forms set out in the Practice Direction and must contain, in a paragraph called a ‘count’—

(a)a statement of the offence charged that—

(i)describes the offence in ordinary language, and

(ii)identifies any legislation that creates it; and

(b)such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

(3) An indictment may contain more than one count if all the offences charged—

(a)are founded on the same facts; or

(b)form or are a part of a series of offences of the same or a similar character.

(4) The counts must be numbered consecutively.

(5) An indictment may contain—

(a)any count charging substantially the same offence as one specified in the notice of the offence or offences for which the defendant was sent for trial; and

(b)any other count based on the prosecution evidence already served which the Crown Court may try.

[Note. In certain circumstances the Crown Court may try a defendant for an offence other than one sent, committed or transferred for trial: see section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (indictable offences founded on the prosecution evidence on which the sending, committal or transfer was based) and section 40 of the Criminal Justice Act 1988(180) (specified summary offences founded on that evidence).]

PART 11DEFERRED PROSECUTION AGREEMENTS

Contents of this Part
When this Part appliesrule 11.1
Exercise of court’s powersrule 11.2
Application to approve a proposal to enter an agreementrule 11.3
Application to approve the terms of an agreementrule 11.4
Application on breach of agreementrule 11.5
Application to approve a variation of the terms of an agreementrule 11.6
Application to lift suspension of prosecutionrule 11.7
Notice to discontinue prosecutionrule 11.8
Application to postpone the publication of information by the prosecutorrule 11.9
Duty of court officer, etc.rule 11.10
Court’s power to vary requirements under this Partrule 11.11

When this Part applies

11.1.—(1) This Part applies to proceedings in the Crown Court under Schedule 17 to the Crime and Courts Act 2013(181).

(2) In this Part—

(a)‘agreement’ means a deferred prosecution agreement under paragraph 1 of that Schedule;

(b)‘prosecutor’ means a prosecutor designated by or under paragraph 3 of that Schedule; and

(c)‘defendant’ means the corporation, partnership or association with whom the prosecutor proposes to enter, or enters, an agreement.

[Note. Under Schedule 17 to the Crime and Courts Act 2013, a designated prosecutor may make a deferred prosecution agreement with a defendant, other than an individual, whom the prosecutor is considering prosecuting for an offences or offences listed in that Schedule. Under such an agreement, the defendant agrees to comply with its terms and the prosecutor agrees that, if the Crown Court approves those terms, then paragraph 2 of the Schedule will apply and

(a)the prosecutor will serve a draft indictment charging the defendant with the offence or offences the subject of the agreement;

(b)the prosecution will be suspended under that paragraph, and the suspension may not be lifted while the agreement is in force; and

(c)no-one may prosecute the defendant for the offence or offences charged while the agreement is in force, or after it expires if the defendant complies with it.

The Code for prosecutors issued under paragraph 6 of that Schedule contains guidance on the exercise of prosecution functions in relation to a deferred prosecution agreement.]

Exercise of court’s powers

11.2.—(1) The court must determine an application to which this Part applies at a hearing, which—

(a)must be in private, under rule 11.3 (Application to approve a proposal to enter an agreement);

(b)may be in public or private, under rule 11.4 (Application to approve the terms of an agreement), rule 11.6 (Application to approve a variation of the terms of an agreement) or rule 11.9 (Application to postpone the publication of information by the prosecutor);

(c)must be in public, under rule 11.5 (Application on breach of agreement) or rule 11.7 (Application to lift suspension of prosecution), unless the court otherwise directs.

(2) If at a hearing in private to which rule 11.4 or rule 11.6 applies the court approves the agreement or the variation proposed, the court must announce its decision and reasons at a hearing in public.

(3) The court must not determine an application under rule 11.3, rule 11.4 or rule 11.6 unless—

(a)both parties are present;

(b)the prosecutor provides the court with a written declaration that, for the purposes of the application—

(i)the investigator enquiring into the alleged offence or offences has certified that no information has been supplied which the investigator knows to be inaccurate, misleading or incomplete, and

(ii)the prosecutor has complied with the prosecution obligation to disclose material to the defendant; and

(c)the defendant provides the court with a written declaration that, for the purposes of the application—

(i)the defendant has not supplied any information which the defendant knows to be inaccurate, misleading or incomplete, and

(ii)the individual through whom the defendant makes the declaration has made reasonable enquiries and believes the defendant’s declaration to be true.

(4) The court must not determine an application under rule 11.5 or rule 11.7—

(a)in the prosecutor’s absence; or

(b)in the absence of the defendant, unless the defendant has had at least 28 days in which to make representations.

(5) If the court approves a proposal to enter an agreement—

(a)the general rule is that any further application to which this Part applies must be made to the same judge; but

(b)the court may direct other arrangements.

(6) The court may adjourn a hearing—

(a)if either party asks, or on its own initiative;

(b)in particular, if the court requires more information about—

(i)the facts of an alleged offence,

(ii)the terms of a proposal to enter an agreement, or of a proposed agreement or variation of an agreement, or

(iii)the circumstances in which the prosecutor wants the court to decide whether the defendant has failed to comply with the terms of an agreement.

(7) The court may—

(a)hear an application under rule 11.4 immediately after an application under rule 11.3, if the court approves a proposal to enter an agreement;

(b)hear an application under rule 11.7 immediately after an application under rule 11.5, if the court terminates an agreement.

[Note. See paragraphs 7(4), 8(5), (6) and 10(5), (6) of Schedule 17 to the Crime and Courts Act 2013.

The Code for prosecutors issued under paragraph 6 of that Schedule contains guidance on fulfilling the prosecution duty of disclosure.]

Application to approve a proposal to enter an agreement

11.3.—(1) This rule applies where a prosecutor wants the court to approve a proposal to enter an agreement.

(2) The prosecutor must—

(a)apply in writing after the commencement of negotiations between the parties but before the terms of agreement have been settled; and

(b)serve the application on—

(i)the court officer, and

(ii)the defendant.

(3) The application must—

(a)identify the parties to the proposed agreement;

(b)attach a proposed indictment setting out such of the offences listed in Part 2 of Schedule 17 to the Crime and Courts Act 2013 as the prosecutor is considering;

(c)include or attach a statement of facts proposed for inclusion in the agreement, which must give full particulars of each alleged offence, including details of any alleged financial gain or loss;

(d)include any information about the defendant that would be relevant to sentence in the event of conviction for the offence or offences;

(e)specify the proposed expiry date of the agreement;

(f)describe the proposed terms of the agreement, including details of any—

(i)monetary penalty to be paid by the defendant, and the time within which any such penalty is to be paid,

(ii)compensation, reparation or donation to be made by the defendant, the identity of the recipient of any such payment and the time within which any such payment is to be made,

(iii)surrender of profits or other financial benefit by the defendant, and the time within which any such sum is to be surrendered,

(iv)arrangement to be made in relation to the management or conduct of the defendant’s business,

(v)co-operation required of the defendant in any investigation related to the offence or offences,

(vi)other action required of the defendant,

(vii)arrangement to monitor the defendant’s compliance with a term,

(viii)consequence of the defendant’s failure to comply with a term, and

(ix)prosecution costs to be paid by the defendant, and the time within which any such costs are to be paid;

(g)in relation to those terms, explain how they comply with—

(i)the requirements of the code issued under paragraph 6 of Schedule 17 to the Crime and Courts Act 2013, and

(ii)any sentencing guidelines or guideline cases which apply;

(h)contain or attach the defendant’s written consent to the proposal; and

(i)explain why—

(i)entering into an agreement is likely to be in the interests of justice, and

(ii)the proposed terms of the agreement are fair, reasonable and proportionate.

(4) If the proposed statement of facts includes assertions that the defendant does not admit, the application must—

(a)specify the facts that are not admitted; and

(b)explain why that is immaterial for the purposes of the proposal to enter an agreement.

[Note. See paragraphs 5 and 7 of Schedule 17 to the Crime and Courts Act 2013.]

Application to approve the terms of an agreement

11.4.—(1) This rule applies where—

(a)the court has approved a proposal to enter an agreement on an application under rule 11.3; and

(b)the prosecutor wants the court to approve the terms of the agreement.

(2) The prosecutor must—

(a)apply in writing as soon as practicable after the parties have settled the terms; and

(b)serve the application on—

(i)the court officer, and

(ii)the defendant.

(3) The application must—

(a)attach the agreement;

(b)indicate in what respect, if any, the terms of the agreement differ from those proposed in the application under rule 11.3;

(c)contain or attach the defendant’s written consent to the agreement;

(d)explain why—

(i)the agreement is in the interests of justice, and

(ii)the terms of the agreement are fair, reasonable and proportionate;

(e)attach a draft indictment, charging the defendant with the offence or offences the subject of the agreement; and

(f)include any application for the hearing to be in private.

(4) If the court approves the agreement and the draft indictment, the court officer must—

(a)endorse any paper copy of the indictment made for the court with—

(i)a note to identify it as the indictment approved by the court, and

(ii)the date of the court’s approval; and

(b)treat the case as if it had been suspended by order of the court.

[Note. See paragraph 8 of Schedule 17 to the Crime and Courts Act 2013. See also rule 11.9 (Application to postpone the publication of information by the prosecutor).

Under paragraph 2(1) of Schedule 17 to the 2013 Act and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(182),the draft indictment to which this rule applies becomes an indictment when the court approves the agreement and consents to the service of that draft. Part 10 contains rules about indictments.

Under paragraph 2(2) of Schedule 17 to the 2013 Act, on approval of the draft indictment the proceedings are automatically suspended.

Under paragraph 13(2) of Schedule 17 to the 2013 Act, where the court approves an agreement the statement of facts contained in that agreement is to be treated as an admission by the defendant under section 10 of the Criminal Justice Act 1967(183) (proof by formal admission) in any criminal proceedings against the defendant for the alleged offence.]

Application on breach of agreement

11.5.—(1) This rule applies where—

(a)the prosecutor believes that the defendant has failed to comply with the terms of an agreement; and

(b)the prosecutor wants the court to decide—

(i)whether the defendant has failed to comply, and

(ii)if so, whether to terminate the agreement, or to invite the parties to agree proposals to remedy that failure.

(2) The prosecutor must—

(a)apply in writing, as soon as practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)the defendant.

(3) The application must—

(a)specify each respect in which the prosecutor believes the defendant has failed to comply with the terms of the agreement, and explain the reasons for the prosecutor’s belief; and

(b)attach a copy of any document containing evidence on which the prosecutor relies.

(4) A defendant who wants to make representations in response to the application must serve the representations on—

(a)the court officer; and

(b)the prosecutor,

not more than 28 days after service of the application.

[Note. See paragraph 9 of Schedule 17 to the Crime and Courts Act 2013. See also rule 11.9 (Application to postpone the publication of information by the prosecutor).]

Application to approve a variation of the terms of an agreement

11.6.—(1) This rule applies where the parties have agreed to vary the terms of an agreement because—

(a)on an application under rule 11.5 (Application on breach of agreement), the court has invited them to do so; or

(b)variation of the agreement is necessary to avoid a failure by the defendant to comply with its terms in circumstances that were not, and could not have been, foreseen by either party at the time the agreement was made.

(2) The prosecutor must—

(a)apply in writing, as soon as practicable after the parties have settled the terms of the variation; and

(b)serve the application on—

(i)the court officer, and

(ii)the defendant.

(3) The application must—

(a)specify each variation proposed;

(b)contain or attach the defendant’s written consent to the variation;

(c)explain why—

(i)the variation is in the interests of justice, and

(ii)the terms of the agreement as varied are fair, reasonable and proportionate; and

(d)include any application for the hearing to be in private.

[Note. See paragraph 10 of Schedule 17 to the Crime and Courts Act 2013. See also rule 11.9 (Application to postpone the publication of information by the prosecutor).]

Application to lift suspension of prosecution

11.7.—(1) This rule applies where—

(a)the court terminates an agreement before its expiry date; and

(b)the prosecutor wants the court to lift the suspension of the prosecution that applied when the court approved the terms of the agreement.

(2) The prosecutor must—

(a)apply in writing, as soon as practicable after the termination of the agreement; and

(b)serve the application on—

(i)the court officer, and

(ii)the defendant.

(3) A defendant who wants to make representations in response to the application must serve the representations on—

(a)the court officer; and

(b)the prosecutor,

not more than 28 days after service of the application.

[Note. See paragraphs 2(3) and 9 of Schedule 17 to the Crime and Courts Act 2013.]

Notice to discontinue prosecution

11.8.—(1) This rule applies where an agreement expires—

(a)on its expiry date, or on a date treated as its expiry date; and

(b)without having been terminated by the court.

(2) The prosecutor must—

(a)as soon as practicable give notice in writing discontinuing the prosecution on the indictment approved by the court under rule 11.4 (Application to approve the terms of an agreement); and

(b)serve the notice on—

(i)the court officer, and

(ii)the defendant.

[Note. See paragraph 11 of Schedule 17 to the Crime and Courts Act 2013.]

Application to postpone the publication of information by the prosecutor

11.9.—(1) This rule applies where the prosecutor—

(a)makes an application under rule 11.4 (Application to approve the terms of an agreement), rule 11.5 (Application on breach of agreement) or rule 11.6 (Application to approve a variation of the terms of an agreement);

(b)decides not to make an application under rule 11.5, despite believing that the defendant has failed to comply with the terms of the agreement; or

(c)gives a notice under rule 11.8 (Notice to discontinue prosecution).

(2) A party who wants the court to order that the publication of information by the prosecutor about the court’s or the prosecutor’s decision should be postponed must—

(a)apply in writing, as soon as practicable and in any event before such publication occurs;

(b)serve the application on—

(i)the court officer, and

(ii)the other party; and

(c)in the application—

(i)specify the proposed terms of the order, and for how long it should last, and

(ii)explain why an order in the terms proposed is necessary.

[Note. See paragraph 12 of Schedule 17 to the Crime and Courts Act 2013.

Part 6 of these Rules contains rules about applications for a restriction on reporting what takes place at a public hearing, or public access to what otherwise would be a public hearing.]

Duty of court officer, etc.

11.10.—(1) Unless the court otherwise directs, the court officer must—

(a)arrange for the recording of proceedings on an application to which this Part applies;

(b)arrange for the transcription of such a recording if—

(i)a party wants such a transcript, or

(ii)anyone else wants such a transcript (but that is subject to the restrictions in paragraph (2)).

(2) Unless the court otherwise directs, a person who transcribes a recording of proceedings under such arrangements—

(a)must not supply anyone other than a party with a transcript of a recording of—

(i)a hearing in private, or

(ii)a hearing in public to which reporting restrictions apply;

(b)subject to that, must supply any person with any transcript for which that person asks—

(i)in accordance with the transcription arrangements made by the court officer, and

(ii)on payment by that person of any fee prescribed.

(3) The court officer must not identify either party to a hearing in private under rule 11.3 (Application to approve a proposal to enter an agreement) or rule 11.4 (Application to approve the terms of an agreement)—

(a)in any notice displayed in the vicinity of the courtroom; or

(b)in any other information published by the court officer.

Court’s power to vary requirements under this Part

11.11.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part;

(b)allow there to be made orally—

(i)an application under rule 11.4 (Application to approve the terms of an agreement), or

(ii)an application under rule 11.7 (Application to lift suspension of prosecution)

where the court exercises its power under rule 11.2(7) to hear one application immediately after another.

(2) A party who wants an extension of time must—

(a)apply when serving the application or notice for which it is needed; and

(b)explain the delay.

PART 12DISCONTINUING A PROSECUTION

Contents of this Part
When this Part appliesrule 12.1
Discontinuing a caserule 12.2
Defendant’s notice to continuerule 12.3

When this Part applies

12.1.—(1) This Part applies where—

(a)the Director of Public Prosecutions can discontinue a case in a magistrates’ court, under section 23 of the Prosecution of Offences Act 1985(184);

(b)the Director of Public Prosecutions, or another public prosecutor, can discontinue a case sent for trial in the Crown Court, under section 23A of the Prosecution of Offences Act 1985(185).

(2) In this Part, ‘prosecutor’ means one of those authorities.

[Note. Under section 23 of the Prosecution of Offences Act 1985, the Director of Public Prosecutions may discontinue proceedings in a magistrates’ court, before the court—

(a)sends the defendant for trial in the Crown Court; or

(b)begins to hear the prosecution evidence, at a trial in the magistrates’ court.

Under section 23(4) of the 1985 Act, the Director may discontinue proceedings where a person charged is in custody but has not yet been brought to court.

Under section 23 of the 1985 Act, the defendant has a right to require the proceedings to continue. See rule 12.3.

Under section 23A of the 1985 Act, the Director of Public Prosecutions, or a public authority within the meaning of section 17 of that Act(186), may discontinue proceedings where the defendant was sent for trial in the Crown Court under section 51 of the Crime and Disorder Act 1998(187). In such a case—

(a)the prosecutor must discontinue before a draft indictment has been served under rule 10.1; and

(b)the defendant has no right to require the proceedings to continue.

Where a prosecution does not proceed, the court has power to order the payment of the defendant’s costs out of central funds. See rule 45.4.]

Discontinuing a case

12.2.—(1) A prosecutor exercising a power to which this Part applies must serve notice on—

(a)the court officer;

(b)the defendant; and

(c)any custodian of the defendant.

(2) Such a notice must—

(a)identify—

(i)the defendant and each offence to which the notice relates,

(ii)the person serving the notice, and

(iii)the power that that person is exercising;

(b)explain—

(i)in the copy of the notice served on the court officer, the reasons for discontinuing the case,

(ii)that the notice brings the case to an end,

(iii)if the defendant is in custody for any offence to which the notice relates, that the defendant must be released from that custody, and

(iv)if the notice is under section 23 of the 1985 Act, that the defendant has a right to require the case to continue.

(3) Where the defendant is on bail, the court officer must notify—

(a)any surety; and

(b)any person responsible for monitoring or securing the defendant’s compliance with a condition of bail.

Defendant’s notice to continue

12.3.—(1) This rule applies where a prosecutor serves a notice to discontinue under section 23 of the 1985 Act.

(2) A defendant who wants the case to continue must serve notice—

(a)on the court officer; and

(b)not more than 35 days after service of the notice to discontinue.

(3) If the defendant serves such a notice, the court officer must—

(a)notify the prosecutor; and

(b)refer the case to the court.

PART 13WARRANTS FOR ARREST, DETENTION OR IMPRISONMENT

Contents of this Part
When this Part appliesrule 13.1
Terms of a warrant for arrestrule 13.2
Terms of a warrant for detention or imprisonmentrule 13.3
Information to be included in a warrantrule 13.4
Execution of a warrantrule 13.5
Warrants that cease to have effect on paymentrule 13.6
Warrant issued when the court office is closedrule 13.7

[Note. Part 30 contains rules about warrants to take goods to pay fines, etc.]

When this Part applies

13.1.—(1) This Part applies where the court can issue a warrant for arrest, detention or imprisonment.

(2) In this Part, ‘defendant’ means anyone against whom such a warrant is issued.

Terms of a warrant for arrest

13.2.  A warrant for arrest must require each person to whom it is directed to arrest the defendant and—

(a)bring the defendant to a court—

(i)specified in the warrant, or

(ii)required or allowed by law; or

(b)release the defendant on bail (with conditions or without) to attend court at a date, time and place—

(i)specified in the warrant, or

(ii)to be notified by the court.

[Note. The principal provisions under which the court can issue a warrant for arrest are

(a)section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(188);

(b)section 7 of the Bail Act 1976(189);

(c)sections 1 and 97 of the Magistrates’ Courts Act 1980(190); and

(d)sections 79, 80 and 81(4), (5) of the Senior Courts Act 1981(191).

See also section 27A of the Magistrates’ Courts Act 1980(192) (power to transfer criminal proceedings) and section 78(2) of the Senior Courts Act 1981(193) (adjournment of Crown Court case to another place).]

Terms of a warrant for detention or imprisonment

13.3.—(1) A warrant for detention or imprisonment must—

(a)require each person to whom it is directed to detain the defendant and—

(i)take the defendant to any place specified in the warrant or required or allowed by law, and

(ii)deliver the defendant to the custodian of that place; and

(b)require that custodian to detain the defendant, as ordered by the court, until in accordance with the law—

(i)the defendant is delivered to the appropriate court or place, or

(ii)the defendant is released.

(2) Where a magistrates’ court remands a defendant to police detention under section 128(7)(194) or section 136(195) of the Magistrates’ Courts Act 1980, or to customs detention under section 152 of the Criminal Justice Act 1988(196), the warrant it issues must—

(a)be directed, as appropriate, to—

(i)a constable, or

(ii)an officer of Her Majesty’s Revenue and Customs; and

(b)require that constable or officer to detain the defendant—

(i)for a period (not exceeding the maximum permissible) specified in the warrant, or

(ii)until in accordance with the law the defendant is delivered to the appropriate court or place.

[Note. Under section 128(7) of the Magistrates’ Courts Act 1980, a magistrates’ court can remand a defendant to police detention for not more than 3 clear days, if the defendant is an adult, or for not more than 24 hours if the defendant is under 18.

Under section 136 of the 1980 Act, a magistrates’ court can order a defendant’s detention in police custody until the following 8am for non-payment of a fine, etc.

Under section 152 of the Criminal Justice Act 1988, a magistrates’ court can remand a defendant to customs detention for not more than 192 hours if the defendant is charged with a drug trafficking offence.]

Information to be included in a warrant

13.4.—(1) A warrant must identify—

(a)each person to whom it is directed;

(b)the defendant against whom it was issued;

(c)the reason for its issue;

(d)the court that issued it, unless that is otherwise recorded by the court officer; and

(e)the court office for the court that issued it.

(2) A warrant for detention or imprisonment must contain a record of any decision by the court under—

(a)section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012(197) (remands of children otherwise than on bail), including in particular—

(i)whether the defendant must be detained in local authority accommodation or youth detention accommodation,

(ii)the local authority designated by the court,

(iii)any requirement imposed by the court on that authority,

(iv)any condition imposed by the court on the defendant, and

(v)the reason for any such requirement or condition;

(b)section 80 of the Magistrates’ Courts Act 1980(198) (application of money found on defaulter to satisfy sum adjudged); or

(c)section 82(1) or (4) of the 1980 Act(199) (conditions for issue of a warrant).

(3) A warrant that contains an error is not invalid, as long as—

(a)it was issued in respect of a lawful decision by the court; and

(b)it contains enough information to identify that decision.

[Note. See sections 93(7) and 102(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under section 91 of the Act, instead of granting bail to a defendant under 18 the court may

(a)remand him or her to local authority accommodation and, after consulting with that authority, impose on the defendant a condition that the court could impose if granting bail; or

(b)remand him or her to youth detention accommodation, if the defendant is at least 12 years old and the other conditions, about the offence and the defendant, prescribed by the Act are met.

Under section 80 of the Magistrates’ Courts Act 1980, the court may decide that any money found on the defendant must not be applied towards payment of the sum for which a warrant is issued under section 76 of that Act (enforcement of sums adjudged to be paid).

See section 82(6) of the 1980 Act. Under section 82(1) and (4), the court may only issue a warrant for the defendant’s imprisonment for non-payment of a sum due where it finds that the prescribed conditions are met.

Under section 123 of the 1980 Act(200), “no objection shall be allowed to any … warrant to procure the presence of the defendant, for any defect in it in substance or in form …”.]

Execution of a warrant

13.5.—(1) A warrant may be executed—

(a)by any person to whom it is directed; or

(b)if the warrant was issued by a magistrates’ court, by anyone authorised to do so by section 125(201) (warrants), 125A(202) (civilian enforcement officers) or 125B(203) (execution by approved enforcement agency) of the Magistrates’ Courts Act 1980.

(2) The person who executes a warrant must—

(a)explain, in terms the defendant can understand, what the warrant requires, and why;

(b)show the defendant the warrant, if that person has it; and

(c)if the defendant asks—

(i)arrange for the defendant to see the warrant, if that person does not have it, and

(ii)show the defendant any written statement of that person’s authority required by section 125A or 125B of the 1980 Act.

(3) The person who executes a warrant of arrest that requires the defendant to be released on bail must—

(a)make a record of—

(i)the defendant’s name,

(ii)the reason for the arrest,

(iii)the defendant’s release on bail, and

(iv)when and where the warrant requires the defendant to attend court; and

(b)serve the record on—

(i)the defendant, and

(ii)the court officer.

(4) The person who executes a warrant of detention or imprisonment must—

(a)take the defendant—

(i)to any place specified in the warrant, or

(ii)if that is not immediately practicable, to any other place at which the defendant may be lawfully detained (and the warrant then has effect as if it specified that place);

(b)obtain a receipt from the custodian; and

(c)notify the court officer that the defendant has been taken to that place.

[Note. Under section 125 of the Magistrates’ Courts Act 1980, a warrant issued by a magistrates’ court may be executed by any person to whom it is directed or by any constable acting within that constable’s police area.

Certain warrants issued by a magistrates’ court may be executed anywhere in England and Wales by a civilian enforcement officer, under section 125A of the 1980 Act; or by an approved enforcement agency, under section 125B of the Act. In either case, the person executing the warrant must, if the defendant asks, show a written statement indicating: that person’s name; the authority or agency by which that person is employed, or in which that person is a director or partner; that that person is authorised to execute warrants; and, where section 125B applies, that the agency is registered as one approved by the Lord Chancellor.

See also section 125D of the 1980 Act(204), under which

(a)a warrant to which section 125A applies may be executed by any person entitled to execute it even though it is not in that person’s possession at the time; and

(b)certain other warrants, including any warrant to arrest a person in connection with an offence, may be executed by a constable even though it is not in that constable’s possession at the time.]

Warrants that cease to have effect on payment

13.6.—(1) This rule applies to a warrant issued by a magistrates’ court under any of the following provisions of the Magistrates’ Courts Act 1980—

(a)section 76(205) (enforcement of sums adjudged to be paid);

(b)section 83(206) (process for securing attendance of offender);

(c)section 86(207) (power of magistrates’ court to fix day for appearance of offender at means inquiry, etc.);

(d)section 136(208) (committal to custody overnight at police station for non-payment of sum adjudged by conviction).

(2) The warrant no longer has effect if—

(a)the sum in respect of which the warrant was issued is paid to the person executing it;

(b)that sum is offered to, but refused by, that person; or

(c)that person is shown a receipt for that sum given by—

(i)the court officer, or

(ii)the authority to which that sum is due.

[Note. See sections 79(209) and 125(1) of the Magistrates’ Courts Act 1980.]

Warrant issued when the court office is closed

13.7.—(1) This rule applies where the court issues a warrant when the court office is closed.

(2) The applicant for the warrant must, not more than 72 hours later, serve on the court officer—

(a)a copy of the warrant; and

(b)any written material that was submitted to the court.

PART 14BAIL AND CUSTODY TIME LIMITS

Contents of this Part
General rules
When this Part appliesrule 14.1
Exercise of court’s powers to which this Part appliesrule 14.2
Duty of justices’ legal adviserrule 14.3
General duties of court officerrule 14.4
Bail
Prosecutor’s representations about bailrule 14.5
Reconsideration of police bail by magistrates’ courtrule 14.6
Notice of application to consider bailrule 14.7
Defendant’s application or appeal to the Crown Court
  after magistrates’ court bail decisionrule 14.8
Prosecutor’s appeal against grant of bailrule 14.9
Consideration of bail in a murder caserule 14.10
Condition of residencerule 14.11
Electronic monitoring requirementsrule 14.12
Accommodation or support requirementsrule 14.13
Requirement for surety or payment, etc.rule 14.14
Forfeiture of a recognizance given by a suretyrule 14.15
Bail condition to be enforced in another European Union member Staterule 14.16
Enforcement of measure imposed in another European Union member Staterule 14.17
Custody time limits
Application to extend a custody time limitrule 14.18
Appeal against custody time limit decisionrule 14.19

GENERAL RULES

When this Part applies

14.1.—(1) This Part applies where—

(a)a magistrates’ court or the Crown Court can—

(i)grant or withhold bail, or impose or vary a condition of bail, and

(ii)where bail has been withheld, extend a custody time limit;

(b)a magistrates’ court can monitor and enforce compliance with a supervision measure imposed in another European Union member State.

(2) In this Part, ‘defendant’ includes a person who has been granted bail by a police officer.

[Note. See in particular

(a)the Bail Act 1976(210);

(b)section 128 of the Magistrates’ Courts Act 1980(211) (general powers of magistrates’ courts in relation to bail);

(c)section 81 of the Senior Courts Act 1981(212) (general powers of the Crown Court in relation to bail);

(d)section 115 of the Coroners and Justice Act 2009(213) (exclusive power of the Crown Court to grant bail to a defendant charged with murder);

(e)Part 7 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(214), which gives effect to Council Framework Decision 2009/829/JHA of 23rd October, 2009, on the application, between member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (bail conditions pending trial);

(f)section 22 of the Prosecution of Offences Act 1985(215) (provision for custody time limits); and

(g)the Prosecution of Offences (Custody Time Limits) Regulations 1987(216) (maximum periods during which a defendant may be kept in custody pending trial).

At the end of this Part there is

(a)a summary of the general entitlement to bail, and of the exceptions to that entitlement; and

(b)a list of the types of supervision measure to which Part 7 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 applies, and a list of the grounds for refusing to monitor and enforce such a measure.]

Exercise of court’s powers to which this Part applies

14.2.—(1) The court must not make a decision to which this Part applies unless—

(a)each party to the decision and any surety directly affected by the decision—

(i)is present, in person or by live link, or

(ii)has had an opportunity to make representations;

(b)on an application for bail by a defendant who is absent and in custody, the court is satisfied that the defendant—

(i)has waived the right to attend, or

(ii)was present when a court withheld bail in the case on a previous occasion and has been in custody continuously since then;

(c)on a prosecutor’s appeal against a grant of bail, application to extend a custody time limit or appeal against a refusal to extend such a time limit—

(i)the court is satisfied that a defendant who is absent has waived the right to attend, or

(ii)the court is satisfied that it would be just to proceed even though the defendant is absent.

(2) The court may make a decision to which this Part applies at a hearing, in public or in private.

(3) The court may determine without a hearing an application to vary a condition of bail if—

(a)the parties to the application have agreed the terms of the variation proposed; or

(b)on an application by a defendant, the court determines the application no sooner than the fifth business day after the application was served.

(4) The court may adjourn a determination to which this Part applies, if that is necessary to obtain information sufficient to allow the court to make the decision required.

(5) At any hearing at which the court makes one of the following decisions, the court must announce in terms the defendant can understand (with help, if necessary) its reasons for—

(a)withholding bail, or imposing or varying a bail condition;

(b)granting bail, where the prosecutor opposed the grant; or

(c)where the defendant is under 18—

(i)imposing or varying a bail condition when ordering the defendant to be detained in local authority accommodation, or

(ii)ordering the defendant to be detained in youth detention accommodation.

(6) At any hearing at which the court grants bail, the court must—

(a)tell the defendant where and when to surrender to custody; or

(b)arrange for the court officer to give the defendant, as soon as practicable, notice of where and when to surrender to custody.

[Note. See section 5 of the Bail Act 1976 and sections 93(7) and 102(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012(217).

Under sections 57A and 57B of the Crime and Disorder Act 1998(218) and under regulation 79(3) of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(219), a defendant is to be treated as present in court when, by virtue of a live link direction within the meaning of those provisions, he or she attends a hearing through a live link.

Under section 91 of the 2012 Act, instead of granting bail to a defendant under 18 the court may

(a)remand him or her to local authority accommodation and, after consulting with that authority, impose on the defendant a condition that the court could impose if granting bail; or

(b)remand him or her to youth detention accommodation, if the defendant is at least 12 years old and the other conditions, about the offence and the defendant, prescribed by the Act are met.]

Duty of justices’ legal adviser

14.3.—(1) This rule applies—

(a)only in a magistrates’ court; and

(b)unless the court—

(i)includes a District Judge (Magistrates’ Courts), and

(ii)otherwise directs.

(2) A justices’ legal adviser must—

(a)assist an unrepresented defendant;

(b)give the court such advice as is required to enable it to exercise its powers;

(c)if required, attend the members of the court outside the courtroom to give such advice, but inform the parties of any advice so given.

[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 2003(220).]

General duties of court officer

14.4.—(1) The court officer must arrange for a note or other record to be made of—

(a)the parties’ representations about bail; and

(b)the court’s reasons for a decision—

(i)to withhold bail, or to impose or vary a bail condition, or

(ii)to grant bail, where the prosecutor opposed the grant.

(2) The court officer must serve notice of a decision about bail on—

(a)the defendant (but, in the Crown Court, only where the defendant’s legal representative asks for such a notice, or where the defendant has no legal representative);

(b)the prosecutor (but only where the court granted bail, the prosecutor opposed the grant, and the prosecutor asks for such a notice);

(c)a party to the decision who was absent when it was made;

(d)a surety who is directly affected by the decision;

(e)the defendant’s custodian, where the defendant is in custody and the decision requires the custodian—

(i)to release the defendant (or will do so, if a requirement ordered by the court is met), or

(ii)to transfer the defendant to the custody of another custodian;

(f)the court officer for any other court at which the defendant is required by that decision to surrender to custody.

(3) Where the court postpones the date on which a defendant who is on bail must surrender to custody, the court officer must serve notice of the postponed date on—

(a)the defendant; and

(b)any surety.

(4) Where a magistrates’ court withholds bail in a case to which section 5(6A) of the Bail Act 1976(221) applies (remand in custody after hearing full argument on an application for bail), the court officer must serve on the defendant a certificate that the court heard full argument.

[Note. See section 5 of the Bail Act 1976(222); section 43 of the Magistrates’ Courts Act 1980(223); and section 52 of the Mental Health Act 1983(224).]

BAIL

Prosecutor’s representations about bail

14.5.—(1) This rule applies whenever the court can grant or withhold bail.

(2) The prosecutor must provide the court with all the information in the prosecutor’s possession which is material to what the court must decide.

(3) A prosecutor who opposes the grant of bail must specify—

(a)each exception to the general right to bail on which the prosecutor relies; and

(b)each consideration that the prosecutor thinks relevant.

(4) A prosecutor who wants the court to impose a condition on any grant of bail must—

(a)specify each condition proposed; and

(b)explain what purpose would be served by such a condition.

[Note. A summary of the general entitlement to bail and of the exceptions to that entitlement is at the end of this Part.]

Reconsideration of police bail by magistrates’ court

14.6.—(1) This rule applies where a party wants a magistrates’ court to reconsider a bail decision by a police officer.

(2) An application under this rule must be made to—

(a)the magistrates’ court to whose custody the defendant is under a duty to surrender, if any; or

(b)any magistrates’ court acting for the police officer’s local justice area, in any other case.

(3) The applicant party must—

(a)apply in writing; and

(b)serve the application on—

(i)the court officer,

(ii)the other party, and

(iii)any surety affected or proposed.

(4) The application must—

(a)specify—

(i)the decision that the applicant wants the court to make,

(ii)each offence charged, or for which the defendant was arrested, and

(iii)the police bail decision to be reconsidered and the reasons given for it;

(b)explain, as appropriate—

(i)why the court should grant bail itself, or withdraw it, or impose or vary a condition, and

(ii)if the applicant is the prosecutor, what material information has become available since the police bail decision was made;

(c)propose the terms of any suggested condition of bail; and

(d)if the applicant wants an earlier hearing than paragraph (7) requires, ask for that, and explain why it is needed.

(5) A prosecutor who applies under this rule must serve on the defendant, with the application, notice that the court has power to withdraw bail and, if the defendant is absent when the court makes its decision, order the defendant’s arrest.

(6) A party who opposes an application must—

(a)so notify the court officer and the applicant at once; and

(b)serve on each notice of the reasons for opposition.

(7) Unless the court otherwise directs, the court officer must arrange for the court to hear the application as soon as practicable and in any event—

(a)if it is an application to withdraw bail, no later than the second business day after it was served;

(b)in any other case, no later than the fifth business day after it was served.

(8) The court may—

(a)vary or waive a time limit under this rule;

(b)allow an application to be in a different form to one set out in the Practice Direction;

(c)if rule 14.2 allows, determine without a hearing an application to vary a condition.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.

Under section 5B of the Bail Act 1976(225)—

(a)where a defendant has been charged with an offence which can be tried in the Crown Court; or

(b)in an extradition case,

on application by the prosecutor a magistrates’ court may withdraw bail granted by a constable, impose conditions of bail, or vary conditions of bail. See also sections 37, 37C(2)(b), 37CA(2)(b), 46A and 47(1B) of the Police and Criminal Evidence Act 1984(226).

Under section 43B of the Magistrates’ Courts Act 1980(227), where a defendant has been charged with an offence, on application by the defendant a magistrates’ court may grant bail itself, in substitution for bail granted by a custody officer, or vary the conditions of bail granted by a custody officer. See also sections 37, 37C(2)(b), 37CA(2)(b), 46A and 47(1C), (1D) of the Police and Criminal Evidence Act 1984(228).

Under section 47(1E) of the Police and Criminal Evidence Act 1984(229), where a defendant has been released on bail by a custody officer without being charged with an offence, on application by the defendant a magistrates’ court may vary any conditions of that bail. See also sections 37, 37C(2)(b), 37CA(2)(b), 46A and 47(1C) of the Act.]

Notice of application to consider bail

14.7.—(1) This rule applies where—

(a)in a magistrates’ court—

(i)a prosecutor wants the court to withdraw bail granted by the court, or to impose or vary a condition of such bail, or

(ii)a defendant wants the court to reconsider such bail before the next hearing in the case;

(b)in the Crown Court—

(i)a party wants the court to grant bail that has been withheld, or to withdraw bail that has been granted, or to impose a new bail condition or to vary a present one, or

(ii)a prosecutor wants the court to consider whether to grant or withhold bail, or impose or vary a condition of bail, under section 88 or section 89 of the Criminal Justice Act 2003(230) (bail and custody in connection with an intended application to the Court of Appeal to which Part 27 (Retrial after acquittal) applies).

(2) Such a party must—

(a)apply in writing;

(b)serve the application on—

(i)the court officer,

(ii)the other party, and

(iii)any surety affected or proposed; and

(c)serve the application not less than 2 business days before any hearing in the case at which the applicant wants the court to consider it, if such a hearing is already due.

(3) The application must—

(a)specify—

(i)the decision that the applicant wants the court to make,

(ii)each offence charged, and

(iii)each relevant previous bail decision and the reasons given for each;

(b)if the applicant is a defendant, explain—

(i)as appropriate, why the court should not withhold bail, or why it should vary a condition, and

(ii)what further information or legal argument, if any, has become available since the most recent previous bail decision was made;

(c)if the applicant is the prosecutor, explain—

(i)as appropriate, why the court should withdraw bail, or impose or vary a condition, and

(ii)what material information has become available since the most recent previous bail decision was made;

(d)propose the terms of any suggested condition of bail; and

(e)if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed.

(4) A prosecutor who applies under this rule must serve on the defendant, with the application, notice that the court has power to withdraw bail and, if the defendant is absent when the court makes its decision, order the defendant’s arrest.

(5) A party who opposes an application must—

(a)so notify the court officer and the applicant at once; and

(b)serve on each notice of the reasons for opposition.

(6) Unless the court otherwise directs, the court officer must arrange for the court to hear the application as soon as practicable and in any event—

(a)if it is an application to grant or withdraw bail, no later than the second business day after it was served;

(b)if it is an application to impose or vary a condition, no later than the fifth business day after it was served.

(7) The court may—

(a)vary or waive a time limit under this rule;

(b)allow an application to be in a different form to one set out in the Practice Direction, or to be made orally;

(c)if rule 14.2 allows, determine without a hearing an application to vary a condition.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.

In addition to the court’s general powers in relation to bail

(a)under section 3(8) of the Bail Act 1976(231), on application by either party the court may impose a bail condition or vary a condition it has imposed. Until the Crown Court makes its first bail decision in the case, a magistrates’ court may vary a condition which it imposed on committing or sending a defendant for Crown Court trial.

(b)under section 5B of the Bail Act 1976(232), where the defendant is on bail and the offence is one which can be tried in the Crown Court, or in an extradition case, on application by the prosecutor a magistrates’ court may withdraw bail, impose conditions of bail or vary the conditions of bail.

(c)under sections 88 and 89 of the Criminal Justice Act 2003, the Crown Court may remand in custody, or grant bail to, a defendant pending an application to the Court of Appeal for an order for retrial under section 77 of that Act.

Under Part IIA of Schedule 1 to the Bail Act 1976(233), if the court withholds bail then at the first hearing after that the defendant may support an application for bail with any argument as to fact or law, whether or not that argument has been advanced before. At subsequent hearings, the court need not hear arguments which it has heard previously.]

Defendant’s application or appeal to the Crown Court after magistrates’ court bail decision

14.8.—(1) This rule applies where a defendant wants to—

(a)apply to the Crown Court for bail after a magistrates’ court has withheld bail; or

(b)appeal to the Crown Court after a magistrates’ court has refused to vary a bail condition as the defendant wants.

(2) The defendant must—

(a)apply to the Crown Court in writing as soon as practicable after the magistrates’ court’s decision; and

(b)serve the application on—

(i)the Crown Court officer,

(ii)the magistrates’ court officer,

(iii)the prosecutor, and

(iv)any surety affected or proposed.

(3) The application must—

(a)specify—

(i)the decision that the applicant wants the Crown Court to make, and

(ii)each offence charged;

(b)explain—

(i)as appropriate, why the Crown Court should not withhold bail, or why it should vary the condition under appeal, and

(ii)what further information or legal argument, if any, has become available since the magistrates’ court’s decision;

(c)propose the terms of any suggested condition of bail;

(d)if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed; and

(e)on an application for bail, attach a copy of the certificate of full argument served on the defendant under rule 14.4(4).

(4) The magistrates’ court officer must as soon as practicable serve on the Crown Court officer—

(a)a copy of the note or record made under rule 14.4(1) in connection with the magistrates’ court’s decision; and

(b)the date of the next hearing, if any, in the magistrates’ court.

(5) A prosecutor who opposes the application must—

(a)so notify the Crown Court officer and the defendant at once; and

(b)serve on each notice of the reasons for opposition.

(6) Unless the Crown Court otherwise directs, the court officer must arrange for the court to hear the application or appeal as soon as practicable and in any event no later than the business day after it was served.

(7) The Crown Court may vary a time limit under this rule.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.

Under section 81 of the Senior Courts Act 1981(234), the Crown Court may grant bail in a magistrates’ court case in which the magistrates’ court has withheld bail.

Under section 16 of the Criminal Justice Act 2003(235), a defendant may appeal to the Crown Court against a bail condition imposed by a magistrates’ court only where—

(a)the condition is one that the defendant must—

(i)live and sleep at a specified place, or away from a specified place,

(ii)give a surety or a security,

(iii)stay indoors between specified hours,

(iv)comply with electronic monitoring requirements, or

(v)make no contact with a specified person; and

(b)the magistrates’ court has determined an application by either party to vary that condition.

In an extradition case, where a magistrates’ court withholds bail or imposes bail conditions, on application by the defendant the High Court may grant bail, or vary the conditions, under section 22 of the Criminal Justice Act 1967(236). For the procedure in the High Court, see Schedule 1 to the Civil Procedure Rules 1998 (RSC Order 79)(237).]

Prosecutor’s appeal against grant of bail

14.9.—(1) This rule applies where a prosecutor wants to appeal—

(a)to the Crown Court against a grant of bail by a magistrates’ court, in a case in which the defendant has been charged with, or convicted of, an offence punishable with imprisonment; or

(b)to the High Court against a grant of bail—

(i)by a magistrates’ court, in an extradition case, or

(ii)by the Crown Court, in a case in which the defendant has been charged with, or convicted of, an offence punishable with imprisonment (but not in a case in which the Crown Court granted bail on an appeal to which paragraph (1)(a) applies).

(2) The prosecutor must tell the court which has granted bail of the decision to appeal—

(a)at the end of the hearing during which the court granted bail; and

(b)before the defendant is released on bail.

(3) The court which has granted bail must exercise its power to remand the defendant in custody pending determination of the appeal.

(4) The prosecutor must serve an appeal notice—

(a)on the court officer for the court which has granted bail and on the defendant;

(b)not more than 2 hours after telling that court of the decision to appeal.

(5) The appeal notice must specify—

(a)each offence with which the defendant is charged;

(b)the decision under appeal;

(c)the reasons given for the grant of bail; and

(d)the grounds of appeal.

(6) On an appeal to the Crown Court, the magistrates’ court officer must, as soon as practicable, serve on the Crown Court officer—

(a)the appeal notice;

(b)a copy of the note or record made under rule 14.4(1) (record of bail decision); and

(c)notice of the date of the next hearing in the court which has granted bail.

(7) If the Crown Court so directs, the Crown Court officer must arrange for the defendant to be assisted by the Official Solicitor in a case in which the defendant—

(a)has no legal representative; and

(b)asks for such assistance.

(8) On an appeal to the Crown Court, the Crown Court officer must arrange for the court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.

(9) The prosecutor—

(a)may abandon an appeal to the Crown Court without the court’s permission, by serving a notice of abandonment, signed by or on behalf of the prosecutor, on—

(i)the defendant,

(ii)the Crown Court officer, and

(iii)the magistrates’ court officer

before the hearing of the appeal begins; but

(b)after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.

(10) The court officer for the court which has granted bail must instruct the defendant’s custodian to release the defendant on the bail granted by that court, subject to any condition or conditions of bail imposed, if—

(a)the prosecutor fails to serve an appeal notice within the time to which paragraph (4) refers; or

(b)the prosecutor serves a notice of abandonment under paragraph (9).

[Note. See section 1 of the Bail (Amendment) Act 1993(238). The time limit for serving an appeal notice is prescribed by section 1(5) of the Act. It may be neither extended nor shortened.

For the procedure in the High Court, see Schedule 1 to the Civil Procedure Rules 1998 (RSC Order 79, rule 9) and the Practice Direction which supplements that Order. Under those provisions, the prosecutor must file in the High Court, among other things

(a)a copy of the appeal notice served by the prosecutor under rule 14.9(4);

(b)notice of the Crown Court decision to grant bail served on the prosecutor under rule 14.4(2); and

(c)notice of the date of the next hearing in the Crown Court.]

Consideration of bail in a murder case

14.10.—(1) This rule applies in a case in which—

(a)the defendant is charged with murder; and

(b)the Crown Court has not yet considered bail.

(2) The magistrates’ court officer must arrange with the Crown Court officer for the Crown Court to consider bail as soon as practicable and in any event no later than the second business day after—

(a)a magistrates’ court sends the defendant to the Crown Court for trial; or

(b)the first hearing in the magistrates’ court, if the defendant is not at once sent for trial.

[Note. See section 115 of the Coroners and Justice Act 2009(239).]

Condition of residence

14.11.—(1) The defendant must notify the prosecutor of the address at which the defendant will live and sleep if released on bail with a condition of residence—

(a)as soon as practicable after the institution of proceedings, unless already done; and

(b)as soon as practicable after any change of that address.

(2) The prosecutor must help the court to assess the suitability of an address proposed as a condition of residence.

Electronic monitoring requirements

14.12.—(1) This rule applies where the court imposes electronic monitoring requirements, where available, as a condition of bail.

(2) The court officer must—

(a)inform the person responsible for the monitoring (‘the monitor’) of—

(i)the defendant’s name, and telephone number if available,

(ii)each offence with which the defendant is charged,

(iii)details of the place at which the defendant’s presence must be monitored,

(iv)the period or periods during which the defendant’s presence at that place must be monitored, and

(v)if fixed, the date on which the defendant must surrender to custody;

(b)inform the defendant and, where the defendant is under 16, an appropriate adult, of the monitor’s identity and the means by which the monitor may be contacted; and

(c)notify the monitor of any subsequent—

(i)variation or termination of the electronic monitoring requirements, or

(ii)fixing or variation of the date on which the defendant must surrender to custody.

[Note. Under section 3(6ZAA) of the Bail Act 1976(240), the conditions of bail that the court may impose include requirements for the electronic monitoring of a defendant’s compliance with other bail conditions, for example a curfew. Sections 3AA and 3AB of the 1976 Act(241) set out conditions for imposing such requirements.

Under section 3AC of the 1976 Act(242), where the court imposes electronic monitoring requirements they must provide for the appointment of a monitor.]

Accommodation or support requirements

14.13.—(1) This rule applies where the court imposes as a condition of bail a requirement, where available, that the defendant must—

(a)reside in accommodation provided for that purpose by, or on behalf of, a public authority;

(b)receive bail support provided by, or on behalf of, a public authority.

(2) The court officer must—

(a)inform the person responsible for the provision of any such accommodation or support (‘the service provider’) of—

(i)the defendant’s name, and telephone number if available,

(ii)each offence with which the defendant is charged,

(iii)details of the requirement,

(iv)any other bail condition, and

(v)if fixed, the date on which the defendant must surrender to custody;

(b)inform the defendant and, where the defendant is under 16, an appropriate adult, of—

(i)the service provider’s identity and the means by which the service provider may be contacted, and

(ii)the address of any accommodation in which the defendant must live and sleep; and

(c)notify the service provider of any subsequent—

(i)variation or termination of the requirement,

(ii)variation or termination of any other bail condition, and

(iii)fixing or variation of the date on which the defendant must surrender to custody.

Requirement for a surety or payment, etc.

14.14.—(1) This rule applies where the court imposes as a condition of bail a requirement for—

(a)a surety;

(b)a payment;

(c)the surrender of a document or thing.

(2) The court may direct how such a condition must be met.

(3) Unless the court otherwise directs, if any such condition or direction requires a surety to enter into a recognizance—

(a)the recognizance must specify—

(i)the amount that the surety will be required to pay if the purpose for which the recognizance is entered is not fulfilled, and

(ii)the date, or the event, upon which the recognizance will expire;

(b)the surety must enter into the recognizance in the presence of—

(i)the court officer,

(ii)the defendant’s custodian, where the defendant is in custody, or

(iii)someone acting with the authority of either; and

(c)the person before whom the surety enters into the recognizance must at once serve a copy on—

(i)the surety, and

(ii)as appropriate, the court officer and the defendant’s custodian.

(4) Unless the court otherwise directs, if any such condition or direction requires someone to make a payment, or surrender a document or thing—

(a)that payment, document or thing must be made or surrendered to—

(i)the court officer,

(ii)the defendant’s custodian, where the defendant is in custody, or

(iii)someone acting with the authority of either; and

(b)the court officer or the custodian, as appropriate, must serve immediately on the other a statement that the payment, document or thing has been made or surrendered.

(5) The custodian must release the defendant when each requirement ordered by the court has been met.

[Note. See also section 119 of the Magistrates’ Courts Act 1980(243).]

Forfeiture of a recognizance given by a surety

14.15.—(1) This rule applies where the court imposes as a condition of bail a requirement that a surety enter into a recognizance and, after the defendant is released on bail,—

(a)the defendant fails to surrender to custody as required, or

(b)it appears to the court that the surety has failed to comply with a condition or direction.

(2) The court officer must serve notice on—

(a)the surety; and

(b)each party to the decision to grant bail,

of the hearing at which the court will consider the forfeiture of the recognizance.

(3) The court must not forfeit the recognizance less than 5 business days after service of notice under paragraph (2).

[Note. If the purpose for which a recognizance is entered is not fulfilled, that recognizance may be forfeited by the court. If the court forfeits a surety’s recognizance, the sum promised by that person is then payable to the Crown. See also section 120 of the Magistrates’ Courts Act 1980(244).]

Bail condition to be enforced in another European Union member State

14.16.—(1) This rule applies where the court can impose as a condition of bail pending trial a requirement—

(a)with which the defendant must comply while in another European Union member State; and

(b)which that other member State can monitor and enforce.

(2) The court—

(a)must not exercise its power to impose such a requirement until the court has decided what, if any, condition or conditions of bail to impose while the defendant is in England and Wales;

(b)subject to that, may exercise its power to make a request for the other member State to monitor and enforce that requirement.

(3) Where the court makes such a request, the court officer must—

(a)issue a certificate requesting the monitoring and enforcement of the defendant’s compliance with that requirement, in the form required by EU Council Framework Decision 2009/829/JHA;

(b)serve on the relevant authority of the other member State—

(i)the court’s decision or a certified copy of that decision,

(ii)the certificate, and

(iii)a copy of the certificate translated into an official language of the other member State, unless English is such a language or the other member State has declared that it will accept a certificate in English; and

(c)report to the court—

(i)any request for further information returned by the competent authority in the other member State, and

(ii)that authority’s decision.

(4) Where the competent authority in the other member State agrees to monitor and enforce the requirement—

(a)the court—

(i)may exercise its power to withdraw the request (where it can), but

(ii)whether or not it does so, must continue to exercise the powers to which this Part applies in accordance with the rules in this Part;

(b)the court officer must immediately serve notice on that authority if—

(i)legal proceedings are brought in relation to the requirement being monitored and enforced

(ii)the court decides to vary or revoke that requirement, or to issue a warrant for the defendant’s arrest; and

(c)the court officer must promptly report to the court any information and any request received from that authority.

[Note. See regulations 77 to 84 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(245).

Where a defendant is to live or stay in another EuropeanUnionmemberState pending trial in England and Wales, the court may grant bail subject to a requirement to be monitored and enforced by the competent authority in that other state. The types of requirement that can be monitored and enforced are set out in Article 8 of EU Council Framework Decision 2009/829/JHA. A list of those requirements is at the end of this Part.

Under regulation 80 of the 2014 Regulations, where the conditions listed in that regulation are met the court may withdraw a request for the competent authority in another member State to monitor and enforce the defendant’s compliance with a requirement.]

Enforcement of measure imposed in another European Union member State

14.17.—(1) This rule applies where the Lord Chancellor serves on the court officer a certificate requesting the monitoring and enforcement of a defendant’s compliance with a supervision measure imposed by an authority in another European Union member State.

(2) The court officer must arrange for the court to consider the request—

(a)as a general rule—

(i)within 20 business days of the date on which the Lord Chancellor received it from the requesting authority, or

(ii)within 40 business days of that date, if legal proceedings in relation to the supervision measure are brought within the first 20 business days;

(b)exceptionally, later than that, but in such a case the court officer must immediately serve on the requesting authority—

(i)an explanation for the delay, and

(ii)an indication of when the court’s decision is expected.

(3) On consideration of the request by the court, the court officer must—

(a)without delay serve on the requesting authority—

(i)notice of any further information required by the court, and

(ii)subject to any such requirement and any response, notice of the court’s decision; and

(b)where the court agrees to monitor the supervision measure, serve notice of the court’s decision on any supervisor specified by the court.

(4) Where the court agrees to monitor the supervision measure—

(a)the court officer must immediately serve notice on the requesting authority if there is reported to the court—

(i)a breach of the measure, or

(ii)any other event that might cause the requesting authority to review its decision;

(b)the court officer must without delay serve notice on the requesting authority if—

(i)legal proceedings are brought in relation to the decision to monitor compliance with the bail condition,

(ii)there is reported to the court a change of the defendant’s residence, or

(iii)the court decides (where it can) to stop monitoring the defendant’s compliance with the measure.

[Note. See regulations 85 to 94 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

Where the Lord Chancellor receives a request for the monitoring and enforcement in England and Wales of a supervision measure ordered in another European Union member State, a magistrates’ court to which the request is given must monitor and enforce that measure unless one of the specified grounds for refusal applies. The grounds for refusal are listed at the end of this Part.

Under regulation 91 of the 2014 Regulations, the defendant may be arrested for breach of the measure and subsequently detained by the court for up to 28 days (or 21 days, in the case of a defendant who is under 18).

Under regulation 90 of the 2014 Regulations, the magistrates’ court may cease the monitoring and enforcement where the requesting authority takes no further decision in response to notice of a breach of the measure. Under regulation 93, the court ceases to be responsible for the monitoring and enforcement of the measure where regulation 90 applies and in the other cases listed in regulation 93.]

CUSTODY TIME LIMITS

Application to extend a custody time limit

14.18.—(1) This rule applies where the prosecutor gives notice of application to extend a custody time limit.

(2) The court officer must arrange for the court to hear that application as soon as practicable after the expiry of—

(a)5 days from the giving of notice, in the Crown Court; or

(b)2 days from the giving of notice, in a magistrates’ court.

(3) The court may shorten a time limit under this rule.

[Note. See regulation 7 of the Prosecution of Offences (Custody Time Limits) Regulations 1987(246).

Under regulations 4 and 5 of the 1987 Regulations(247), unless the court extends the time limit the maximum period during which the defendant may be in pre-trial custody is

(a)in a case which can be tried only in a magistrates’ court, 56 days pending the beginning of the trial;

(b)in a magistrates’ court, in a case which can be tried either in that court or in the Crown Court—

(i)70 days, pending the beginning of a trial in the magistrates’ court, or

(ii)56 days, pending the beginning of a trial in the magistrates’ court, if the court decides on such a trial during that period;

(c)in the Crown Court, pending the beginning of the trial, 182 days from the sending of the defendant for trial, less any period or periods during which the defendant was in custody in the magistrates’ court.

Under section 22(3) of the Prosecution of Offences Act 1985(248), the court cannot extend a custody time limit which has expired, and must not extend such a time limit unless satisfied—

(a)that the need for the extension is due to—

(i)the illness or absence of the accused, a necessary witness, a judge or a magistrate,

(ii)a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more defendants or two or more offences, or

(iii)some other good and sufficient cause; and

(b)that the prosecution has acted with all due diligence and expedition.]

Appeal against custody time limit decision

14.19.—(1) This rule applies where—

(a)a defendant wants to appeal to the Crown Court against a decision by a magistrates’ court to extend a custody time limit;

(b)a prosecutor wants to appeal to the Crown Court against a decision by a magistrates’ court to refuse to extend a custody time limit.

(2) The appellant must serve an appeal notice—

(a)on—

(i)the other party to the decision,

(ii)the Crown Court officer, and

(iii)the magistrates’ court officer;

(b)in a defendant’s appeal, as soon as practicable after the decision under appeal;

(c)in a prosecutor’s appeal—

(i)as soon as practicable after the decision under appeal, and

(ii)before the relevant custody time limit expires.

(3) The appeal notice must specify—

(a)each offence with which the defendant is charged;

(b)the decision under appeal;

(c)the date on which the relevant custody time limit will expire;

(d)on a defendant’s appeal, the date on which the relevant custody time limit would have expired but for the decision under appeal; and

(e)the grounds of appeal.

(4) The Crown Court officer must arrange for the Crown Court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.

(5) The appellant—

(a)may abandon an appeal without the Crown Court’s permission, by serving a notice of abandonment, signed by or on behalf of the appellant, on—

(i)the other party,

(ii)the Crown Court officer, and

(iii)the magistrates’ court officer

before the hearing of the appeal begins; but

(b)after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.

[Note. See section 22(7), (8), (9) of the Prosecution of Offences Act 1985(249).]

Summary of the general entitlement to bail and of the exceptions

The court must consider bail whenever it can order the defendant’s detention pending trial or sentencing, or in an extradition case, and whether an application is made or not. Under section 4 of the Bail Act 1976(250), the general rule, subject to exceptions, is that a defendant must be granted bail. Under Part IIA of Schedule 1 to the Act(251), if the court decides not to grant the defendant bail then at each subsequent hearing the court must consider whether to grant bail.

Section 3 of the Bail Act 1976(252) allows the court, before granting bail, to require a surety or security to secure the defendant’s surrender to custody; and allows the court, on granting bail, to impose such requirements as appear to the court to be necessary

(a)to secure that the defendant surrenders to custody;

(b)to secure that the defendant does not commit an offence while on bail;

(c)to secure that the defendant does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to the defendant or any other person;

(d)for the defendant’s own protection or, if a child or young person, for the defendant’s welfare or in the defendant’s own interests;

(e)to secure the defendant’s availability for the purpose of enabling enquiries or a report to be made to assist the court in dealing with the defendant for the offence;

(f)to secure that before the time appointed for surrender to custody the defendant attends an interview with a legal representative.

Under section 3 of the Bail Act 1976, a person granted bail in criminal proceedings is under a duty to surrender to custody as required by that bail. Under section 6 of the Act, such a person who fails without reasonable cause so to surrender commits an offence and, under section 7, may be arrested.

Exceptions to the general right to bail are listed in Schedule 1 to the Bail Act 1976(253). They differ according to the category of offence concerned. Under section 4(2B) of the 1976 Act(254), in an extradition case there is no general right to bail where the defendant is alleged to have been convicted in the territory requesting extradition.

Under Part I of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is not one that can be tried only in a magistrates’ court, or in an extradition case

(a)the defendant need not be granted bail if the court is satisfied that—

(i)there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice,

(ii)there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or cause that person to fear injury,

(iii)the defendant should be kept in custody for his or her own protection or welfare, or

(iv)it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;

(b)the defendant need not be granted bail if it appears to the court that the defendant was on bail at the time of the offence (this exception does not apply in an extradition case);

(c)the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail;

(d)the defendant need not be granted bail if in custody pursuant to a sentence;

(e)the defendant need not be granted bail if it appears to the court that it would be impracticable to complete enquiries or a report for which the case is to be adjourned without keeping the defendant in custody;

(f)the defendant may not be granted bail if charged with murder, unless the court is of the opinion that there is no significant risk of the defendant committing an offence while on bail that would, or would be likely to, cause physical or mental injury to some other person;

(g)the defendant in an extradition case need not be granted bail if he or she was on bail on the date of the alleged offence and that offence is not one that could be tried only in a magistrates’ court if it were committed in England or Wales.

Exceptions (a)(i), (b) and (c) do not apply where

(a)the defendant is 18 or over;

(b)the defendant has not been convicted of an offence in those proceedings; and

(c)it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.

In deciding whether an exception to the right to bail applies the court must have regard to any relevant consideration, including

(a)the nature and seriousness of the offence, and the probable method of dealing with the defendant for it;

(b)the character, antecedents, associations and community ties of the defendant;

(c)the defendant’s record of fulfilling obligations imposed under previous grants of bail; and

(d)except where the case is adjourned for enquires or a report, the strength of the evidence of the defendant having committed the offence.

Under Part IA of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is one that can be tried only in a magistrates’ court

(a)the defendant need not be granted bail if it appears to the court that—

(i)having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, or

(ii)the defendant was on bail on the date of the offence and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail;

(b)the defendant need not be granted bail if the court is satisfied that—

(i)there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to some other person, or cause some other person to fear such injury,

(ii)the defendant should be kept in custody for his or her own protection or welfare, or

(iii)it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;

(c)the defendant need not be granted bail if in custody pursuant to a sentence;

(d)the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice.

Exceptions (a) and (d) do not apply where

(a)the defendant is 18 or over;

(b)the defendant has not been convicted of an offence in those proceedings; and

(c)it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.

Under Part II of Schedule 1 to the 1976 Act, where the offence is not punishable with imprisonment

(a)the defendant need not be granted bail if it appears to the court that having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody;

(b)the defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his or her own protection or welfare;

(c)the defendant need not be granted bail if in custody pursuant to a sentence;

(d)the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice;

(e)the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or to cause that person to fear such injury.

Exceptions (a) and (d) apply only where

(a)the defendant is under 18; and

(b)the defendant has been convicted in those proceedings.

Further exceptions to the general right to bail are set out in section 25 of the Criminal Justice and Public Order Act 1994(255), under which a defendant charged with murder, attempted murder, manslaughter, rape or another sexual offence specified in that section, and who has been previously convicted of such an offence, may be granted bail only if there are exceptional circumstances which justify it.

Requirements that may be monitored and enforced in another European Union member State

Under Article 8(1) of EU Council Framework Decision 2009/829/JHA of 23rd October, 2009, on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, the following are the requirements that may be monitored and enforced in a European Union member State (‘the monitoring State’) other than the state in which they were imposed as a condition of bail

(a)an obligation for the person to inform the competent authority in the monitoring State of any change of residence, in particular for the purpose of receiving a summons to attend a hearing or a trial in the course of criminal proceedings;

(b)an obligation not to enter certain localities, places or defined areas in the issuing or monitoring State;

(c)an obligation to remain at a specified place, where applicable during specified times;

(d)an obligation containing limitations on leaving the territory of the monitoring State;

(e)an obligation to report at specified times to a specific authority;

(f)an obligation to avoid contact with specific persons in relation to the offence or offences allegedly committed.

Under Article 8(2) of the Framework Decision, other measures that a monitoring State may be prepared to monitor may include—

(a)an obligation not to engage in specified activities in relation to the offence or offences allegedly committed, which may include involvement in a specified profession or field of employment;

(b)an obligation not to drive a vehicle;

(c)an obligation to deposit a certain sum of money or to give another type of guarantee, which may either be provided through a specified number of instalments or entirely at once;

(d)an obligation to undergo therapeutic treatment or treatment for addiction; or

(e)an obligation to avoid contact with specific objects in relation to the offence or offences allegedly committed.

Grounds for refusing to monitor and enforce a supervision measure imposed in another European Union member State

Under Schedule 6 to the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(256), the grounds for refusal are—

(a)the certificate requesting monitoring under the Framework Decision—

(i)is incomplete or obviously does not correspond to the decision on supervision measures, and

(ii)is not completed or corrected within a period specified by the court;

(b)where the defendant subject to the decision on supervision measures is lawfully and ordinarily resident in England and Wales, the defendant has not consented to return there with a view to the supervision measures being monitored there under the Framework Decision;

(c)where the defendant subject to the decision on supervision measures is not lawfully and ordinarily resident in England and Wales, the defendant—

(i)has not asked for a request to be made for monitoring of the supervision measures under the Framework Decision by a competent authority in in England and Wales, or

(ii)has asked for such a request to be made but has not given adequate reasons as to why it should be made;

(d)the certificate includes measures other than those referred to in Article 8 of the Framework Decision (see the list above);

(e)recognition of the decision on supervision measures would contravene the principle of ne bis in idem;

(f)the decision on supervision measures was based on conduct that would not constitute an offence under the law of England and Wales if it occurred there (with the exception of some specified categories of offence);

(g)the decision was based on conduct where, under the law of England and Wales—

(i)the criminal prosecution of the conduct would be statute-barred, and

(ii)the conduct falls within the jurisdiction of England and Wales;

(h)the decision on supervision measures was based on conduct by a defendant who was under the age of 10 when the conduct took place;

(i)the conduct on which the decision on supervision measures was based is such that—

(i)if there was a breach of the supervision measures, and

(ii)a warrant was issued by the issuing State for the arrest of the defendant subject to the decision

the defendant would have to be discharged at an extradition hearing under the Extradition Act 2003;

(j)it appears that the decision on supervision measures was in fact made for the purpose of punishing the defendant on account of the defendant’s race, ethnic origin, religion, nationality, language, gender, sexual orientation or political opinions.

PART 15DISCLOSURE

Contents of this Part
When this Part appliesrule 15.1
Prosecution disclosurerule 15.2
Prosecutor’s application for public interest rulingrule 15.3
Defence disclosurerule 15.4
Defendant’s application for prosecution disclosurerule 15.5
Review of public interest rulingrule 15.6
Defendant’s application to use disclosed materialrule 15.7
Unauthorised use of disclosed materialrule 15.8
Court’s power to vary requirements under this Partrule 15.9

When this Part applies

15.1.  This Part applies—

(a)in a magistrates’ court and in the Crown Court;

(b)where Parts I and II of the Criminal Procedure and Investigations Act 1996 apply.

[Note. A summary of the disclosure requirements of the Criminal Procedure and Investigations Act 1996 is at the end of this Part.]

Prosecution disclosure

15.2.—(1) This rule applies where, under section 3 of the Criminal Procedure and Investigations Act 1996(257), the prosecutor—

(a)discloses prosecution material to the defendant; or

(b)serves on the defendant a written statement that there is no such material to disclose.

(2) The prosecutor must at the same time so inform the court officer.

[Note. See section 3 of the Criminal Procedure and Investigations Act 1996 and paragraph 10 of the Code of Practice accompanying the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015(258).]

Prosecutor’s application for public interest ruling

15.3.—(1) This rule applies where—

(a)without a court order, the prosecutor would have to disclose material; and

(b)the prosecutor wants the court to decide whether it would be in the public interest to disclose it.

(2) The prosecutor must—

(a)apply in writing for such a decision; and

(b)serve the application on—

(i)the court officer,

(ii)any person who the prosecutor thinks would be directly affected by disclosure of the material, and

(iii)the defendant, but only to the extent that serving it on the defendant would not disclose what the prosecutor thinks ought not be disclosed.

(3) The application must—

(a)describe the material, and explain why the prosecutor thinks that—

(i)it is material that the prosecutor would have to disclose,

(ii)it would not be in the public interest to disclose that material, and

(iii)no measure such as the prosecutor’s admission of any fact, or disclosure by summary, extract or edited copy, adequately would protect both the public interest and the defendant’s right to a fair trial;

(b)omit from any part of the application that is served on the defendant anything that would disclose what the prosecutor thinks ought not be disclosed (in which case, paragraph (4) of this rule applies); and

(c)explain why, if no part of the application is served on the defendant.

(4) Where the prosecutor serves only part of the application on the defendant, the prosecutor must—

(a)mark the other part, to show that it is only for the court; and

(b)in that other part, explain why the prosecutor has withheld it from the defendant.

(5) Unless already done, the court may direct the prosecutor to serve an application on—

(a)the defendant;

(b)any other person who the court considers would be directly affected by the disclosure of the material.

(6) The court must determine the application at a hearing which—

(a)must be in private, unless the court otherwise directs; and

(b)if the court so directs, may take place, wholly or in part, in the defendant’s absence.

(7) At a hearing at which the defendant is present—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the prosecutor and any other person served with the application, and then by the defendant, in the presence of them all, and then

(ii)further representations by the prosecutor and any such other person in the defendant’s absence; but

(b)the court may direct other arrangements for the hearing.

(8) The court may only determine the application if satisfied that it has been able to take adequate account of—

(a)such rights of confidentiality as apply to the material; and

(b)the defendant’s right to a fair trial.

(9) Unless the court otherwise directs, the court officer—

(a)must not give notice to anyone other than the prosecutor—

(i)of the hearing of an application under this rule, unless the prosecutor served the application on that person, or

(ii)of the court’s decision on the application;

(b)may—

(i)keep a written application or representations, or

(ii)arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.

[Note. The court’s power to order that it is not in the public interest to disclose material is provided for by sections 3(6), 7(6) (where the investigation began between 1st April, 1997 and 3rd April, 2005) and 7A(8) (where the investigation began on or after 4th April, 2005) of the Criminal Procedure and Investigations Act 1996(259).

See also sections 16 and 19 of the 1996 Act(260).]

Defence disclosure

15.4.—(1) This rule applies where—

(a)under section 5 or 6 of the Criminal Procedure and Investigations Act 1996(261), the defendant gives a defence statement;

(b)under section 6C of the 1996 Act(262), the defendant gives a defence witness notice.

(2) The defendant must serve such a statement or notice on—

(a)the court officer; and

(b)the prosecutor.

[Note. The Practice Direction sets out forms of

(a)defence statement; and

(b)defence witness notice.

Under section 5 of the 1996 Act, in the Crown Court the defendant must give a defence statement. Under section 6 of the Act, in a magistrates’ court the defendant may give such a statement but need not do so.

Under section 6C of the 1996 Act, in the Crown Court and in magistrates’ courts the defendant must give a defence witness notice indicating whether he or she intends to call any witnesses (other than him or herself) and, if so, identifying them.]

Defendant’s application for prosecution disclosure

15.5.—(1) This rule applies where the defendant—

(a)has served a defence statement given under the Criminal Procedure and Investigations Act 1996; and

(b)wants the court to require the prosecutor to disclose material.

(2) The defendant must serve an application on—

(a)the court officer; and

(b)the prosecutor.

(3) The application must—

(a)describe the material that the defendant wants the prosecutor to disclose;

(b)explain why the defendant thinks there is reasonable cause to believe that—

(i)the prosecutor has that material, and

(ii)it is material that the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose; and

(c)ask for a hearing, if the defendant wants one, and explain why it is needed.

(4) The court may determine an application under this rule—

(a)at a hearing, in public or in private; or

(b)without a hearing.

(5) The court must not require the prosecutor to disclose material unless the prosecutor—

(a)is present; or

(b)has had at least 14 days in which to make representations.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.

Under section 8 of the Criminal Procedure and Investigations Act 1996(263), a defendant may apply for prosecution disclosure only if the defendant has given a defence statement.]

Review of public interest ruling

15.6.—(1) This rule applies where the court has ordered that it is not in the public interest to disclose material that the prosecutor otherwise would have to disclose, and—

(a)the defendant wants the court to review that decision; or

(b)the Crown Court reviews that decision on its own initiative.

(2) Where the defendant wants the court to review that decision, the defendant must—

(a)serve an application on—

(i)the court officer, and

(ii)the prosecutor; and

(b)in the application—

(i)describe the material that the defendant wants the prosecutor to disclose, and

(ii)explain why the defendant thinks it is no longer in the public interest for the prosecutor not to disclose it.

(3) The prosecutor must serve any such application on any person who the prosecutor thinks would be directly affected if that material were disclosed.

(4) The prosecutor, and any such person, must serve any representations on—

(a)the court officer; and

(b)the defendant, unless to do so would in effect reveal something that either thinks ought not be disclosed.

(5) The court may direct—

(a)the prosecutor to serve any such application on any person who the court considers would be directly affected if that material were disclosed;

(b)the prosecutor and any such person to serve any representations on the defendant.

(6) The court must review a decision to which this rule applies at a hearing which—

(a)must be in private, unless the court otherwise directs; and

(b)if the court so directs, may take place, wholly or in part, in the defendant’s absence.

(7) At a hearing at which the defendant is present—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the defendant, and then by the prosecutor and any other person served with the application, in the presence of them all, and then

(ii)further representations by the prosecutor and any such other person in the defendant’s absence; but

(b)the court may direct other arrangements for the hearing.

(8) The court may only conclude a review if satisfied that it has been able to take adequate account of—

(a)such rights of confidentiality as apply to the material; and

(b)the defendant’s right to a fair trial.

[Note. The court’s power to review a public interest ruling is provided for by sections 14 and 15 of the Criminal Procedure and Investigations Act 1996(264). Under section 14 of the Act, a magistrates’ court may reconsider an order for non-disclosure only if a defendant applies. Under section 15, the Crown Court may do so on an application, or on its own initiative.

See also sections 16 and 19 of the 1996 Act.]

Defendant’s application to use disclosed material

15.7.—(1) This rule applies where a defendant wants the court’s permission to use disclosed prosecution material—

(a)otherwise than in connection with the case in which it was disclosed; or

(b)beyond the extent to which it was displayed or communicated publicly at a hearing.

(2) The defendant must serve an application on—

(a)the court officer; and

(b)the prosecutor.

(3) The application must—

(a)specify what the defendant wants to use or disclose; and

(b)explain why.

(4) The court may determine an application under this rule—

(a)at a hearing, in public or in private; or

(b)without a hearing.

(5) The court must not permit the use of such material unless—

(a)the prosecutor has had at least 28 days in which to make representations; and

(b)the court is satisfied that it has been able to take adequate account of any rights of confidentiality that may apply to the material.

[Note. The court’s power to allow a defendant to use disclosed material is provided for by section 17 of the Criminal Procedure and Investigations Act 1996(265).

See also section 19 of the 1996 Act.]

Unauthorised use of disclosed material

15.8.—(1) This rule applies where a person is accused of using disclosed prosecution material in contravention of section 17 of the Criminal Procedure and Investigations Act 1996.

(2) A party who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).

(3) The court must not exercise its power to forfeit material used in contempt of court unless—

(a)the prosecutor; and

(b)any other person directly affected by the disclosure of the material,

is present, or has had at least 14 days in which to make representations.

[Note. Under section 17 of the Criminal Procedure and Investigations Act 1996, a defendant may use disclosed prosecution material—

(a)in connection with the case in which it was disclosed, including on an appeal;

(b)to the extent to which it was displayed or communicated publicly at a hearing in public; or

(c)with the court’s permission.

Under section 18 of the 1996 Act, the court can punish for contempt of court any other use of disclosed prosecution material. See also section 19 of the 1996 Act.]

Court’s power to vary requirements under this Part

15.9.  The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part;

(b)allow a defence statement, or a defence witness notice, to be in a different written form to one set out in the Practice Direction, as long as it contains what the Criminal Procedure and Investigations Act 1996 requires;

(c)allow an application under this Part to be in a different form to one set out in the Practice Direction, or to be presented orally; and

(d)specify the period within which—

(i)any application under this Part must be made, or

(ii)any material must be disclosed, on an application to which rule 15.5 applies (Defendant’s application for prosecution disclosure).

Summary of disclosure requirements of Criminal Procedure and Investigations Act 1996

The Criminal Procedure and Investigations Act 1996 came into force on 1st April, 1997. It does not apply where the investigation began before that date. With effect from 4th April, 2005, the Criminal Justice Act 2003 made changes to the 1996 Act that do not apply where the investigation began before that date.

In some circumstances, the prosecutor may be required to disclose material to which the 1996 Act does not apply: see sections 1 and 21(266).

Part I of the 1996 Act contains sections 1 to 21A. Part II, which contains sections 22 to 27, requires an investigator to record information relevant to an investigation that is obtained during its course. See also the Criminal Procedure and Investigations Act 1996 (Code of Practice) (No. 2) Order 1997(267), the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005(268) and the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015(269) issued under sections 23 to 25 of the 1996 Act.

Prosecution disclosure

Where the investigation began between 1st April, 1997, and 3rd April, 2005, sections 3 and 7 of the 1996 Act require the prosecutor—

(a)to disclose material not previously disclosed that in the prosecutor’s opinion might undermine the case for the prosecution against the defendant—

(i)in a magistrates’ court, as soon as is reasonably practicable after the defendant pleads not guilty, and

(ii)in the Crown Court, as soon as is reasonably practicable after the case is committed or transferred for trial, or after the evidence is served where the case is sent for trial; and

(b)as soon as is reasonably practicable after service of the defence statement, to disclose material not previously disclosed that might be reasonably expected to assist the defendant’s case as disclosed by that defence statement; or in either event

(c)if there is no such material, then to give the defendant a written statement to that effect.

Where the investigation began on or after 4th April, 2005, sections 3 and 7A of the 1996 Act(270) require the prosecutor—

(a)to disclose prosecution material not previously disclosed that might reasonably be considered capable of undermining the case for the prosecution against the defendant or of assisting the case for the defendant—

(i)in a magistrates’ court, as soon as is reasonably practicable after the defendant pleads not guilty, or

(ii)in the Crown Court, as soon as is reasonably practicable after the case is committed or transferred for trial, or after the evidence is served where the case is sent for trial, or after a count is added to the indictment; and in either case

(b)if there is no such material, then to give the defendant a written statement to that effect; and after that

(c)in either court, to disclose any such material—

(i)whenever there is any, until the court reaches its verdict or the prosecutor decides not to proceed with the case, and

(ii)in particular, after the service of the defence statement.

Sections 2 and 3 of the 1996 Act define material, and prescribe how it must be disclosed.

In some circumstances, disclosure is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000.

The prosecutor must not disclose material that the court orders it would not be in the public interest to disclose: see sections 3(6), 7(6) and 7A(8) of the 1996 Act.

Sections 12 and 13 of the 1996 Act prescribe the time for prosecution disclosure. Under paragraph 10 of the Code of Practice accompanying the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015, in a magistrates’ court the prosecutor must disclose any material due to be disclosed at the hearing where a not guilty plea is entered, or as soon as possible following a formal indication from the accused or representative that a not guilty plea will be entered at that hearing.

See also sections 1, 4 and 10 of the 1996 Act.

Defence disclosure

Under section 5 of the 1996 Act(271), in the Crown Court the defendant must give a defence statement. Under section 6 of the Act, in a magistrates’ court the defendant may give such a statement but need not do so.

Under section 6C of the 1996 Act(272), in the Crown Court and in magistrates’ courts the defendant must give a defence witness notice indicating whether he or she intends to call any witnesses (other than him or herself) and, if so, identifying them.

The time for service of a defence statement is prescribed by section 12 of the 1996 Act(273) and by the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011(274). It is—

(a)in a magistrates’ court, not more than 14 days after the prosecutor—

(i)discloses material under section 3 of the 1996 Act, or

(ii)serves notice that there is no such material to disclose;

(b)in the Crown Court, not more than 28 days after either of those events, if the prosecution evidence has been served on the defendant.

The requirements for the content of a defence statement are set out in—

(a)section 5 of the 1996 Act, where the investigation began between 1st April, 1997 and 3rd April, 2005;

(b)section 6A of the 1996 Act(275), where the investigation began on or after 4th April, 2005. See also section 6E of the Act(276).

Where the investigation began between 1st April, 1997 and 3rd April, 2005, the defence statement must—

(a)set out in general terms the nature of the defence;

(b)indicate the matters on which the defendant takes issue with the prosecutor, and, in respect of each, explain why;

(c)if the defence statement discloses an alibi, give particulars, including—

(i)the name and address of any witness whom the defendant believes can give evidence in support (that is, evidence that the defendant was in a place, at a time, inconsistent with having committed the offence),

(ii)where the defendant does not know the name or address, any information that might help identify or find that witness.

Where the investigation began on or after 4th April, 2005, the defence statement must—

(a)set out the nature of the defence, including any particular defences on which the defendant intends to rely;

(b)indicate the matters of fact on which the defendant takes issue with the prosecutor, and, in respect of each, explain why;

(c)set out particulars of the matters of fact on which the defendant intends to rely for the purposes of the defence;

(d)indicate any point of law that the defendant wants to raise, including any point about the admissibility of evidence or about abuse of process, and any authority relied on; and

(e)if the defence statement discloses an alibi, give particulars, including—

(i)the name, address and date of birth of any witness whom the defendant believes can give evidence in support (that is, evidence that the defendant was in a place, at a time, inconsistent with having committed the offence),

(ii)where the defendant does not know any of those details, any information that might help identify or find that witness.

The time for service of a defence witness notice is prescribed by section 12 of the 1996 Act and by the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011. The time limits are the same as those for a defence statement.

A defence witness notice that identifies any proposed defence witness (other than the defendant) must—

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

(b)provide any information in the defendant’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 defendant when the notice is given; and

(c)amend any earlier such notice, if the defendant—

(i)decides to call a person not included in an earlier notice as a proposed witness,

(ii)decides not to call a person so included, or

(iii)discovers any information which the defendant would have had to include in an earlier notice, if then aware of it.

Under section 11 of the 1996 Act(277), if a defendant—

(a)fails to disclose what the Act requires;

(b)fails to do so within the time prescribed;

(c)at trial, relies on a defence, or facts, not mentioned in the defence statement;

(d)at trial, introduces alibi evidence without having given in the defence statement—

(i)particulars of the alibi, or

(ii)the details of the alibi witness, or witnesses, required by the Act; or

(e)at trial, calls a witness not identified in a defence witness notice,

then the court or another party at trial may comment on that, and the court may draw such inferences as appear proper in deciding whether the defendant is guilty.

Under section 6E(2) of the 1996 Act, if before trial in the Crown Court it seems to the court that section 11 may apply, then the court must warn the defendant.

PART 16WRITTEN WITNESS STATEMENTS

Contents of this Part
When this Part appliesrule 16.1
Content of written witness statementrule 16.2
Reference to exhibitrule 16.3
Written witness statement in evidencerule 16.4

When this Part applies

16.1.  This Part applies where a party wants to introduce a written witness statement in evidence under section 9 of the Criminal Justice Act 1967(278).

[Note. Under section 9 of the Criminal Justice Act 1967, if the conditions specified in that section are met, the written statement of a witness is admissible in evidence to the same extent as if that witness gave evidence in person.]

Content of written witness statement

16.2.  The statement must contain—

(a)at the beginning—

(i)the witness’ name, and

(ii)the witness’ age, if under 18;

(b)a declaration by the witness that—

(i)it is true to the best of the witness’ knowledge and belief, and

(ii)the witness knows that if it is introduced in evidence, then it would be an offence wilfully to have stated in it anything that the witness knew to be false or did not believe to be true;

(c)if the witness cannot read the statement, a signed declaration by someone else that that person read it to the witness; and

(d)the witness’ signature.

[Note. The Practice Direction sets out a form of written statement for use in connection with this rule.]

Reference to exhibit

16.3.  Where the statement refers to a document or object as an exhibit—

(a)the statement must contain such a description of that exhibit as to identify it clearly; and

(b)the exhibit must be labelled or marked correspondingly, and the label or mark signed by the maker of the statement.

Written witness statement in evidence

16.4.—(1) A party who wants to introduce in evidence a written witness statement must—

(a)before the hearing at which that party wants to introduce it, serve a copy of the statement on—

(i)the court officer, and

(ii)each other party; and

(b)at or before that hearing, serve on the court officer the statement or an authenticated copy.

(2) If that party relies on only part of the statement, that party must mark the copy in such a way as to make that clear.

(3) A prosecutor must serve on a defendant, with the copy of the statement, a notice—

(a)of the right to object to the introduction of the statement in evidence instead of the witness giving evidence in person;

(b)of the time limit for objecting under this rule; and

(c)that if the defendant does not object in time, the court—

(i)can nonetheless require the witness to give evidence in person, but

(ii)may decide not to do so.

(4) A party served with a written witness statement who objects to its introduction in evidence must—

(a)serve notice of the objection on—

(i)the party who served it, and

(ii)the court officer; and

(b)serve the notice of objection not more than 7 days after service of the statement unless—

(i)the court extends that time limit, before or after the statement was served,

(ii)rule 24.8 (Written guilty plea: special rules) applies, in which case the time limit is the later of 7 days after service of the statement or 7 days before the hearing date, or

(iii)rule 24.9 (Single justice procedure: special rules) applies, in which case the time limit is 21 days after service of the statement.

(5) The court may exercise its power to require the witness to give evidence in person—

(a)on application by any party; or

(b)on its own initiative.

(6) A party entitled to receive a copy of a statement may waive that entitlement by so informing—

(a)the party who would have served it; and

(b)the court.

[Note. The Practice Direction sets out a form of written witness statement and a form of notice for use in connection with this rule.

Under section 9(2A) of the Criminal Justice Act 1967(279), Criminal Procedure Rules may prescribe the period within which a party served with a written witness statement must object to its introduction in evidence, subject to a minimum period of 7 days from its service.

Under section 133 of the Criminal Justice Act 2003(280), 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. By section 134 of the 2003 Act, ‘document’ means anything in which information of any description is recorded.]

PART 17WITNESS SUMMONSES, WARRANTS AND ORDERS

Contents of this Part
When this Part appliesrule 17.1
Issue etc. of summons, warrant or order with or without a hearingrule 17.2
Application for summons, warrant or order: general rulesrule 17.3
Written application: form and servicerule 17.4
Application for summons to produce a document, etc.:
  special rulesrule 17.5
Application for summons to produce a document, etc.:
  court’s assessment of relevance and confidentialityrule 17.6
Application to withdraw a summons, warrant or orderrule 17.7
Court’s power to vary requirements under this Partrule 17.8

When this Part applies

17.1.—(1) This Part applies in magistrates’ courts and in the Crown Court where—

(a)a party wants the court to issue a witness summons, warrant or order under—

(i)section 97 of the Magistrates’ Courts Act 1980(281),

(ii)paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998(282),

(iii)section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965(283), or

(iv)section 7 of the Bankers’ Books Evidence Act 1879(284);

(b)the court considers the issue of such a summons, warrant or order on its own initiative as if a party had applied; or

(c)one of those listed in rule 17.7 wants the court to withdraw such a summons, warrant or order.

(2) A reference to a ‘witness’ in this Part is a reference to a person to whom such a summons, warrant or order is directed.

[Note. A magistrates’ court may require the attendance of a witness to give evidence or to produce in evidence a document or thing by a summons, or in some circumstances a warrant for the witness’ arrest, under section 97 of the Magistrates’ Courts Act 1980 or under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998. The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Either court may order the production in evidence of a copy of an entry in a banker’s book without the attendance of an officer of the bank, under sections 6 and 7 of the Bankers’ Books Evidence Act 1879. See section 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965 for the Crown Court’s power to issue a witness summons on the court’s own initiative.

See Part 3 for the court’s general powers to consider an application and to give directions.]

Issue etc. of summons, warrant or order with or without a hearing

17.2.—(1) The court may issue or withdraw a witness summons, warrant or order with or without a hearing.

(2) A hearing under this Part must be in private unless the court otherwise directs.

[Note. If rule 17.5 applies, a person served with an application for a witness summons will have an opportunity to make representations about whether there should be a hearing of that application before the witness summons is issued.]

Application for summons, warrant or order: general rules

17.3.—(1) A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.

(2) The party applying must—

(a)identify the proposed witness;

(b)explain—

(i)what evidence the proposed witness can give or produce,

(ii)why it is likely to be material evidence, and

(iii)why it would be in the interests of justice to issue a summons, order or warrant as appropriate.

(3) The application may be made orally unless—

(a)rule 17.5 applies; or

(b)the court otherwise directs.

[Note. The court may issue a warrant for a witness’ arrest if that witness fails to obey a witness summons directed to him: see section 97(3) of the Magistrates’ Courts Act 1980, paragraph 4(5) of Schedule 3 to the Crime and Disorder Act 1998 and section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Before a magistrates’ court may issue a warrant under section 97(3) of the 1980 Act, the witness must first be paid or offered a reasonable amount for costs and expenses.]

Written application: form and service

17.4.—(1) An application in writing under rule 17.3 must be in the form set out in the Practice Direction, containing the same declaration of truth as a witness statement.

(2) The party applying must serve the application—

(a)in every case, on the court officer and as directed by the court; and

(b)as required by rule 17.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(285). Section 89 of the 1967 Act(286) makes it an offence to make a written statement under section 9 of that Act which the person making it knows to be false or does not believe to be true.]

Application for summons to produce a document, etc.: special rules

17.5.—(1) This rule applies to an application under rule 17.3 for a witness summons requiring the proposed witness—

(a)to produce in evidence a document or thing; or

(b)to give evidence about information apparently held in confidence,

that relates to another person.

(2) The application must be in writing in the form required by rule 17.4.

(3) The party applying must serve the application—

(a)on the proposed witness, unless the court otherwise directs; and

(b)on one or more of the following, if the court so directs—

(i)a person to whom the proposed evidence relates,

(ii)another party.

(4) The court must not issue a witness summons where this rule applies unless—

(a)everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b)the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

(5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in a banker’s book.

[Note. Under section 2A of the Criminal Procedure (Attendance of Witnesses) Act 1965(287), a witness summons to produce a document or thing issued by the Crown Court may require the witness to produce it for inspection by the applicant before producing it in evidence.]

Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality

17.6.—(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that—

(a)it is not likely to be material evidence; or

(b)even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons.

(2) The court may require the proposed witness to make the document or thing available for the objection to be assessed.

(3) The court may invite—

(a)the proposed witness or any representative of the proposed witness; or

(b)a person to whom the document or thing relates or any representative of such a person,

to help the court assess the objection.

Application to withdraw a summons, warrant or order

17.7.—(1) The court may withdraw a witness summons, warrant or order if one of the following applies for it to be withdrawn—

(a)the party who applied for it, on the ground that it no longer is needed;

(b)the witness, on the grounds that—

(i)he was not aware of any application for it, and

(ii)he cannot give or produce evidence likely to be material evidence, or

(iii)even if he can, his duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates, outweigh the reasons for the issue of the summons, warrant or order; or

(c)any person to whom the proposed evidence relates, on the grounds that—

(i)he was not aware of any application for it, and

(ii)that evidence is not likely to be material evidence, or

(iii)even if it is, his duties or rights, including rights of confidentiality, or those of the witness, outweigh the reasons for the issue of the summons, warrant or order.

(2) A person applying under the rule must—

(a)apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why he wants the summons, warrant or order to be withdrawn; and

(b)serve the application on the court officer and as appropriate on—

(i)the witness,

(ii)the party who applied for the summons, warrant or order, and

(iii)any other person who he knows was served with the application for the summons, warrant or order.

(3) Rule 17.6 applies to an application under this rule that concerns a document or thing to be produced in evidence.

[Note. See sections 2B, 2C and 2E of the Criminal Procedure (Attendance of Witnesses) Act 1965(288) for the Crown Court’s powers to withdraw a witness summons, including the power to order costs.]

Court’s power to vary requirements under this Part

17.8.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part; and

(b)where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.

(2) Someone who wants the court to allow an application to be made orally under paragraph (1)(b) of this rule must—

(a)give as much notice as the urgency of his application permits to those on whom he would otherwise have served an application in writing; and

(b)in doing so explain the reasons for the application and for wanting the court to consider it orally.

PART 18MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE

Contents of this Part
General rules
When this Part appliesrule 18.1
Meaning of ‘witness’rule 18.2
Making an application for a direction or orderrule 18.3
Decisions and reasonsrule 18.4
Court’s power to vary requirements under this Partrule 18.5
Custody of documentsrule 18.6
Declaration by intermediaryrule 18.7
Special measures directions
Exercise of court’s powersrule 18.8
Special measures direction for a young witnessrule 18.9
Content of application for a special measures directionrule 18.10
Application to vary or discharge a special measures directionrule 18.11
Application containing information withheld from another partyrule 18.12
Representations in responserule 18.13
Defendant’s evidence directions
Exercise of court’s powersrule 18.14
Content of application for a defendant’s evidence directionrule 18.15
Application to vary or discharge a defendant’s evidence directionrule 18.16
Representations in responserule 18.17
Witness anonymity orders
Exercise of court’s powersrule 18.18
Content and conduct of application for a witness anonymity orderrule 18.19
Duty of court officer to notify the Director of Public Prosecutionsrule 18.20
Application to vary or discharge a witness anonymity orderrule 18.21
Representations in responserule 18.22
Live link directions
Exercise of court’s powersrule 18.23
Content of application for a live link directionrule 18.24
Application to discharge a live link directionrule 18.25
Representations in responserule 18.26

GENERAL RULES

When this Part applies

18.1.  This Part applies—

(a)where the court can give a direction (a ‘special measures direction’), under section 19 of the Youth Justice and Criminal Evidence Act 1999(289), on an application or on its own initiative, for any of the following measures—

(i)preventing a witness from seeing the defendant (section 23 of the 1999 Act),

(ii)allowing a witness to give evidence by live link (section 24 of the 1999 Act(290)),

(iii)hearing a witness’ evidence in private (section 25 of the 1999 Act(291)),

(iv)dispensing with the wearing of wigs and gowns (section 26 of the 1999 Act),

(v)admitting video recorded evidence (sections 27 and 28 of the 1999 Act(292)),

(vi)questioning a witness through an intermediary (section 29 of the 1999 Act(293)),

(vii)using a device to help a witness communicate (section 30 of the 1999 Act);

(b)where the court can vary or discharge such a direction, under section 20 of the 1999 Act(294);

(c)where the court can give, vary or discharge a direction (a ‘defendant’s evidence direction’) for a defendant to give evidence—

(i)by live link, under section 33A of the 1999 Act(295), or

(ii)through an intermediary, under sections 33BA and 33BB of the 1999 Act(296);

(d)where the court can—

(i)make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009(297), or

(ii)vary or discharge such an order, under section 91, 92 or 93 of the 2009 Act;

(e)where the court can give or discharge a direction (a ‘live link direction’), on an application or on its own initiative, for a witness to give evidence by live link under—

(i)section 32 of the Criminal Justice Act 1988(298), or

(ii)sections 51 and 52 of the Criminal Justice Act 2003(299);

(f)where the court can exercise any other power it has to give, vary or discharge a direction for a measure to help a witness give evidence.

Meaning of ‘witness’

18.2.  In this Part, ‘witness’ means anyone (other than a defendant) for whose benefit an application, direction or order is made.

[Note. At the end of this Part is a summary of the circumstances in which a witness or defendant may be eligible for the assistance of one of the measures to which this Part applies.]

Making an application for a direction or order

18.3.  A party who wants the court to exercise its power to give or make a direction or order must—

(a)apply in writing as soon as reasonably practicable, and in any event not more than—

(i)28 days after the defendant pleads not guilty, in a magistrates’ court, or

(ii)14 days after the defendant pleads not guilty, in the Crown Court; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

[Note. See also rule 18.10 (Content of application for a special measures direction), rule 18.15 (Content of application for a defendant’s evidence direction), rule 18.19 (Content and conduct of application for a witness anonymity order) and rule 18.24 (Content of application for a live link direction).

The Practice Direction sets out forms for use in connection with

(a)an application under rule 18.10 for a special measures direction;

(b)an application under rule 18.24 for a live link direction (otherwise than as a special measures direction).]

Decisions and reasons

18.4.—(1) A party who wants to introduce the evidence of a witness who is the subject of an application, direction or order must—

(a)inform the witness of the court’s decision as soon as reasonably practicable; and

(b)explain to the witness the arrangements that as a result will be made for him or her to give evidence.

(2) The court must announce, at a hearing in public before the witness gives evidence, the reasons for a decision—

(a)to give, make, vary or discharge a direction or order; or

(b)to refuse to do so.

[Note. See sections 20(5), 33A(8) and 33BB(4) of the Youth Justice and Criminal Evidence Act 1999 and sections 51(8) and 52(7) of the Criminal Justice Act 2003(300).]

Court’s power to vary requirements under this Part

18.5.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part; and

(b)allow an application or representations to be made in a different form to one set out in the Practice Direction, or to be made orally.

(2) A person who wants an extension of time must—

(a)apply when serving the application or representations for which it is needed; and

(b)explain the delay.

Custody of documents

18.6.  Unless the court otherwise directs, the court officer may—

(a)keep a written application or representations; or

(b)arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.

Declaration by intermediary

18.7.—(1) This rule applies where—

(a)a video recorded interview with a witness is conducted through an intermediary;

(b)the court directs the examination of a witness or defendant through an intermediary.

(2) An intermediary must make a declaration—

(a)before such an interview begins;

(b)before the examination begins (even if such an interview with the witness was conducted through the same intermediary).

(3) The declaration must be in these terms—

I solemnly, sincerely and truly declare [or I swear by Almighty God] that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.

SPECIAL MEASURES DIRECTIONS

Exercise of court’s powers

18.8.  The court may decide whether to give, vary or discharge a special measures direction—

(a)at a hearing, in public or in private, or without a hearing;

(b)in a party’s absence, if that party—

(i)applied for the direction, variation or discharge, or

(ii)has had at least 14 days in which to make representations.

Special measures direction for a young witness

18.9.—(1) This rule applies where, under section 21 or section 22 of the Youth Justice and Criminal Evidence Act 1999(301), the primary rule requires the court to give a direction for a special measure to assist a child witness or a qualifying witness—

(a)on an application, if one is made; or

(b)on the court’s own initiative, in any other case.

(2) A party who wants to introduce the evidence of such a witness must as soon as reasonably practicable—

(a)notify the court that the witness is eligible for assistance;

(b)provide the court with any information that the court may need to assess the witness’ views, if the witness does not want the primary rule to apply; and

(c)serve any video recorded evidence on—

(i)the court officer, and

(ii)each other party.

[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, a ‘child witness’ is one who is under 18, and a ‘qualifying witness’ is one who was a child witness when interviewed.

Under those sections, the ‘primary rule’ requires the court to give a direction—

(a)for the evidence of a child witness or of a qualifying witness to be admitted—

(i)by means of a video recording of an interview with the witness, in the place of examination-in-chief, and

(ii)after that, by live link; or

(b)if one or both of those measures is not taken, for the witness while giving evidence to be screened from seeing the defendant.

The primary rule always applies unless—

(a)the witness does not want it to apply, and the court is satisfied that to omit a measure usually required by that rule would not diminish the quality of the witness’ evidence; or

(b)the court is satisfied that to direct one of the measures usually required by that rule would not be likely to maximise, so far as practicable, the quality of the witness’ evidence.]

Content of application for a special measures direction

18.10.  An applicant for a special measures direction must—

(a)explain how the witness is eligible for assistance;

(b)explain why special measures would be likely to improve the quality of the witness’ evidence;

(c)propose the measure or measures that in the applicant’s opinion would be likely to maximise, so far as practicable, the quality of that evidence;

(d)report any views that the witness has expressed about—

(i)his or her eligibility for assistance,

(ii)the likelihood that special measures would improve the quality of his or her evidence, and

(iii)the measure or measures proposed by the applicant;

(e)in a case in which a child witness or a qualifying witness does not want the primary rule to apply, provide any information that the court may need to assess the witness’ views;

(f)in a case in which the applicant proposes that the witness should give evidence by live link—

(i)identify someone to accompany the witness while the witness gives evidence,

(ii)name that person, if possible, and

(iii)explain why that person would be an appropriate companion for the witness, including the witness’ own views;

(g)in a case in which the applicant proposes the admission of video recorded evidence, identify—

(i)the date and duration of the recording,

(ii)which part the applicant wants the court to admit as evidence, if the applicant does not want the court to admit all of it;

(h)attach any other material on which the applicant relies; and

(i)if the applicant wants a hearing, ask for one, and explain why it is needed.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.]

Application to vary or discharge a special measures direction

18.11.—(1) A party who wants the court to vary or discharge a special measures direction must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)explain what material circumstances have changed since the direction was given (or last varied, if applicable);

(b)explain why the direction should be varied or discharged; and

(c)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. Under section 20 of the Youth Justice and Criminal Evidence Act 1999, the court can vary or discharge a special measures direction—

(a)on application, if there has been a material change of circumstances; or

(b)on the court’s own initiative.]

Application containing information withheld from another party

18.12.—(1) This rule applies where—

(a)an applicant serves an application for a special measures direction, or for its variation or discharge; and

(b)the application includes information that the applicant thinks ought not be revealed to another party.

(2) The applicant must—

(a)omit that information from the part of the application that is served on that other party;

(b)mark the other part to show that, unless the court otherwise directs, it is only for the court; and

(c)in that other part, explain why the applicant has withheld that information from that other party.

(3) Any hearing of an application to which this rule applies—

(a)must be in private, unless the court otherwise directs; and

(b)if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld.

(4) At any hearing of an application to which this rule applies—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii)further representations by the applicant, in the absence of a party from whom information has been withheld; but

(b)the court may direct other arrangements for the hearing.

[Note. See section 20 of the Youth Justice and Criminal Evidence Act 1999.]

Representations in response

18.13.—(1) This rule applies where a party wants to make representations about—

(a)an application for a special measures direction;

(b)an application for the variation or discharge of such a direction; or

(c)a direction, variation or discharge that the court proposes on its own initiative.

(2) Such a party must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after, as applicable—

(i)service of the application, or

(ii)notice of the direction, variation or discharge that the court proposes; and

(c)ask for a hearing, if that party wants one, and explain why it is needed.

(3) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—

(a)omit that information from the representations served on that other party;

(b)mark the information to show that, unless the court otherwise directs, it is only for the court; and

(c)with that information include an explanation of why it has been withheld from that other party.

(4) Representations against a special measures direction must explain, as appropriate—

(a)why the witness is not eligible for assistance;

(b)if the witness is eligible for assistance, why—

(i)no special measure would be likely to improve the quality of the witness’ evidence,

(ii)the proposed measure or measures would not be likely to maximise, so far as practicable, the quality of the witness’ evidence, or

(iii)the proposed measure or measures might tend to inhibit the effective testing of that evidence;

(c)in a case in which the admission of video recorded evidence is proposed, why it would not be in the interests of justice for the recording, or part of it, to be admitted as evidence.

(5) Representations against the variation or discharge of a special measures direction must explain why it should not be varied or discharged.

[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, where the witness is a child witness or a qualifying witness the special measures that the court usually must direct must be treated as likely to maximise, so far as practicable, the quality of the witness’ evidence, irrespective of representations to the contrary.]

DEFENDANT’S EVIDENCE DIRECTIONS

Exercise of court’s powers

18.14.  The court may decide whether to give, vary or discharge a defendant’s evidence direction—

(a)at a hearing, in public or in private, or without a hearing;

(b)in a party’s absence, if that party—

(i)applied for the direction, variation or discharge, or

(ii)has had at least 14 days in which to make representations.

Content of application for a defendant’s evidence direction

18.15.  An applicant for a defendant’s evidence direction must—

(a)explain how the proposed direction meets the conditions prescribed by the Youth Justice and Criminal Evidence Act 1999;

(b)in a case in which the applicant proposes that the defendant give evidence by live link—

(i)identify a person to accompany the defendant while the defendant gives evidence, and

(ii)explain why that person is appropriate;

(c)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See sections 33A and 33BA of the Youth Justice and Criminal Evidence Act 1999.]

Application to vary or discharge a defendant’s evidence direction

18.16.—(1) A party who wants the court to vary or discharge a defendant’s evidence direction must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)on an application to discharge a live link direction, explain why it is in the interests of justice to do so;

(b)on an application to discharge a direction for an intermediary, explain why it is no longer necessary in order to ensure that the defendant receives a fair trial;

(c)on an application to vary a direction for an intermediary, explain why it is necessary for the direction to be varied in order to ensure that the defendant receives a fair trial; and

(d)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See sections 33A(7) and 33BB of the Youth Justice and Criminal Evidence Act 1999.]

Representations in response

18.17.—(1) This rule applies where a party wants to make representations about—

(a)an application for a defendant’s evidence direction;

(b)an application for the variation or discharge of such a direction; or

(c)a direction, variation or discharge that the court proposes on its own initiative.

(2) Such a party must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after, as applicable—

(i)service of the application, or

(ii)notice of the direction, variation or discharge that the court proposes; and

(c)ask for a hearing, if that party wants one, and explain why it is needed.

(3) Representations against a direction, variation or discharge must explain why the conditions prescribed by the Youth Justice and Criminal Evidence Act 1999 are not met.

WITNESS ANONYMITY ORDERS

Exercise of court’s powers

18.18.—(1) The court may decide whether to make, vary or discharge a witness anonymity order—

(a)at a hearing (which must be in private, unless the court otherwise directs), or without a hearing (unless any party asks for one);

(b)in the absence of a defendant.

(2) The court must not exercise its power to make, vary or discharge a witness anonymity order, or to refuse to do so—

(a)before or during the trial, unless each party has had an opportunity to make representations;

(b)on an appeal by the defendant to which applies Part 34 (Appeal to the Crown Court) or Part 39 (Appeal to the Court of Appeal about conviction or sentence), unless in each party’s case—

(i)that party has had an opportunity to make representations, or

(ii)the appeal court is satisfied that it is not reasonably practicable to communicate with that party;

(c)after the trial and any such appeal are over, unless in the case of each party and the witness—

(i)each has had an opportunity to make representations, or

(ii)the court is satisfied that it is not reasonably practicable to communicate with that party or witness.

Content and conduct of application for a witness anonymity order

18.19.—(1) An applicant for a witness anonymity order must—

(a)include in the application nothing that might reveal the witness’ identity;

(b)describe the measures proposed by the applicant;

(c)explain how the proposed order meets the conditions prescribed by section 88 of the Coroners and Justice Act 2009(302);

(d)explain why no measures other than those proposed will suffice, such as—

(i)an admission of the facts that would be proved by the witness,

(ii)an order restricting public access to the trial,

(iii)reporting restrictions, in particular under sections 45, 45A or 46 of the Youth Justice and Criminal Evidence Act 1999(303),

(iv)a direction for a special measure under section 19 of the Youth Justice and Criminal Evidence Act 1999,

(v)introduction of the witness’ written statement as hearsay evidence, under section 116 of the Criminal Justice Act 2003(304), or

(vi)arrangements for the protection of the witness;

(e)attach to the application—

(i)a witness statement setting out the proposed evidence, edited in such a way as not to reveal the witness’ identity,

(ii)where the prosecutor is the applicant, any further prosecution evidence to be served, and any further prosecution material to be disclosed under the Criminal Procedure and Investigations Act 1996, similarly edited, and

(iii)any defence statement that has been served, or as much information as may be available to the applicant that gives particulars of the defence; and

(f)ask for a hearing, if the applicant wants one.

(2) At any hearing of the application, the applicant must—

(a)identify the witness to the court, unless at the prosecutor’s request the court otherwise directs; and

(b)present to the court, unless it otherwise directs—

(i)the unedited witness statement from which the edited version has been prepared,

(ii)where the prosecutor is the applicant, the unedited version of any further prosecution evidence or material from which an edited version has been prepared, and

(iii)such further material as the applicant relies on to establish that the proposed order meets the conditions prescribed by section 88 of the 2009 Act.

(3) At any such hearing—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii)information withheld from a defendant, and further representations by the applicant, in the absence of any (or any other) defendant; but

(b)the court may direct other arrangements for the hearing.

(4) Before the witness gives evidence, the applicant must identify the witness to the court—

(a)if not already done;

(b)without revealing the witness’ identity to any other party or person; and

(c)unless at the prosecutor’s request the court otherwise directs.

Duty of court officer to notify the Director of Public Prosecutions

18.20.  The court officer must notify the Director of Public Prosecutions of an application, unless the prosecutor is, or acts on behalf of, a public authority.

Application to vary or discharge a witness anonymity order

18.21.—(1) A party who wants the court to vary or discharge a witness anonymity order, or a witness who wants the court to do so when the case is over, must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)explain what material circumstances have changed since the order was made (or last varied, if applicable);

(b)explain why the order should be varied or discharged, taking account of the conditions for making an order; and

(c)ask for a hearing, if the applicant wants one.

(3) Where an application includes information that the applicant thinks might reveal the witness’ identity, the applicant must—

(a)omit that information from the application that is served on a defendant;

(b)mark the information to show that it is only for the court and the prosecutor (if the prosecutor is not the applicant); and

(c)with that information include an explanation of why it has been withheld.

(4) Where a party applies to vary or discharge a witness anonymity order after the trial and any appeal are over, the party who introduced the witness’ evidence must serve the application on the witness.

[Note. Under sections 91, 92 and 93 of the Coroners and Justice Act 2009, the court can vary or discharge a witness anonymity order—

(a)on an application, if there has been a material change of circumstances since it was made or previously varied; or

(b)on the court’s own initiative, unless the trial and any appeal are over.]

Representations in response

18.22.—(1) This rule applies where a party or, where the case is over, a witness, wants to make representations about—

(a)an application for a witness anonymity order;

(b)an application for the variation or discharge of such an order; or

(c)a variation or discharge that the court proposes on its own initiative.

(2) Such a party or witness must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after, as applicable—

(i)service of the application, or

(ii)notice of the variation or discharge that the court proposes; and

(c)ask for a hearing, if that party or witness wants one.

(3) Where representations include information that the person making them thinks might reveal the witness’ identity, that person must—

(a)omit that information from the representations served on a defendant;

(b)mark the information to show that it is only for the court (and for the prosecutor, if relevant); and

(c)with that information include an explanation of why it has been withheld.

(4) Representations against a witness anonymity order must explain why the conditions for making the order are not met.

(5) Representations against the variation or discharge of such an order must explain why it would not be appropriate to vary or discharge it, taking account of the conditions for making an order.

(6) A prosecutor’s representations in response to an application by a defendant must include all information available to the prosecutor that is relevant to the conditions and considerations specified by sections 88 and 89 of the Coroners and Justice Act 2009.

LIVE LINK DIRECTIONS

[Note. The rules in this Section do not apply to an application for a special measures direction allowing a witness to give evidence by live link: as to which, see rules 18.8 to 18.13.]

Exercise of court’s powers

18.23.  The court may decide whether to give or discharge a live link direction—

(a)at a hearing, in public or in private, or without a hearing;

(b)in a party’s absence, if that party—

(i)applied for the direction or discharge, or

(ii)has had at least 14 days in which to make representations in response to an application by another party.

Content of application for a live link direction

18.24.  An applicant for a live link direction must—

(a)unless the court otherwise directs, identify the place from which the witness will give evidence;

(b)if that place is in the United Kingdom, explain why it would be in the interests of the efficient or effective administration of justice for the witness to give evidence by live link;

(c)if the applicant wants the witness to be accompanied by another person while giving evidence—

(i)name that person, if possible, and

(ii)explain why it is appropriate for the witness to be accompanied;

(d)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See section 32 of the Criminal Justice Act 1988(305) and section 51 of the Criminal Justice Act 2003(306).

The Practice Direction sets out a form of application for use in connection with this rule.]

Application to discharge a live link direction

18.25.—(1) A party who wants the court to discharge a live link direction must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)explain what material circumstances have changed since the direction was given;

(b)explain why it is in the interests of justice to discharge the direction; and

(c)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See section 32(4) of the Criminal Justice Act 1988(307) and section 52(3) of the Criminal Justice Act 2003(308).]

Representations in response

18.26.—(1) This rule applies where a party wants to make representations about an application for a live link direction or for the discharge of such a direction.

(2) Such a party must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after service of the application; and—

(c)ask for a hearing, if that party wants one, and explain why it is needed.

(3) Representations against a direction or discharge must explain, as applicable, why the conditions prescribed by the Criminal Justice Act 1988 or the Criminal Justice Act 2003 are not met.

Summary of eligibility for measures to which this Part applies

Special measures direction

Under section 16 of the Youth Justice and Criminal Evidence Act 1999(309), a witness is eligible for the assistance of a special measures direction given under section 19 of that Act if—

(a)the witness is under 18; or

(b)the witness has—

(i)a mental disorder, or a significant impairment of intelligence and social functioning, or

(ii)a physical disability or disorder

and the court considers that the completeness, coherence and accuracy (the ‘quality’) of evidence given by the witness is likely to be diminished by reason of those circumstances.

Under section 17 of the 1999(310) Act, a witness is eligible for such assistance if—

(a)the court is satisfied that the quality of evidence given by the witness is likely to be diminished because of his or her fear or distress in connection with giving evidence, taking account particularly of—

(i)the circumstances of the offence,

(ii)the witness’ age, social and cultural background, ethnic origins, domestic and employment circumstances, religious beliefs or political opinions,

(iii)any behaviour towards the witness on the part of the defendant, the defendant’s family or associates, or any other potential defendant or witness, and

(iv)the witness’ own views;

(b)the witness is the complainant in respect of a sexual offence, and has not declined such assistance; or

(c)the offence is one of a list of offences involving weapons, and the witness has not declined such assistance.

Section 28 of the 1999 Act (video recorded cross-examination or re-examination) is not yet in force. With that exception, all the special measures listed in rule 18.1 potentially are available where the witness is eligible for assistance under section 16 of the Act. Those numbered (i) to (v) are available where the witness is eligible for assistance under section 17.

As a general rule, but with exceptions, the court must give a special measures direction—

(a)under section 21 or 22 of the 1999 Act(311), where the witness—

(i)is under 18, or

(ii)was under that age when interviewed

whether or not an application for a direction is made;

(b)under section 22A of the 1999 Act(312), where an application is made in the Crown Court for the evidence of a witness who is the complainant of a sexual offence to be admitted by means of a video recording of an interview with the witness in the place of examination-in-chief.

Defendant’s evidence direction

Under section 33A of the 1999 Act(313), the court can allow a defendant to give evidence by live link, or (when the Coroners and Justice Act 2009 comes into force) under section 33BA(314) can allow a defendant to give evidence through an intermediary, if—

(a)the defendant—

(i)is under 18, and the defendant’s ability to participate effectively as a witness giving oral evidence is compromised by his or her level of intellectual ability or social functioning; or

(ii)suffers from a mental disorder or some other significant impairment of intelligence and social functioning and cannot participate effectively as a witness giving oral evidence for that reason;

(b)the use of a live link—

(i)would enable the defendant to participate more effectively, and

(ii)is in the interests of justice;

(c)the examination of the defendant through an intermediary is necessary to ensure that the defendant receives a fair trial.

Witness anonymity order

Under section 86 of the Coroners and Justice Act 2009(315), a witness anonymity order is an order that specifies measures to be taken to ensure that the identity of a witness is not disclosed, such as withholding the witness’ name from materials disclosed to a party to the proceedings, the use of a pseudonym, the screening of the witness from view, the modulation of the witness’ voice, and the prohibition of questions that might reveal his or her identity. Before making such an order, the court must—

(a)be satisfied that three conditions prescribed by the Act are met (section 88 of the 2009 Act); and

(b)have regard to considerations specified by the Act (section 89 of the 2009 Act).

Live link direction

Under section 32 of the Criminal Justice Act 1988, the court can allow a witness who is outside the United Kingdom to give evidence by live link—

(a)in proceedings in a youth court, or on appeal from such proceedings; or

(b)at a trial in the Crown Court, or on appeal from such a trial.

Under section 51 of the Criminal Justice Act 2003, on an application or on its own initiative, the court can allow a witness who is in the United Kingdom, but outside the building in which the proceedings are held, to give evidence by live link. The court must be satisfied that that is in the interests of the efficient or effective administration of justice.

If a witness is eligible for the assistance of a special measures direction (as to which, see the note above), the court can allow the witness to give evidence by live link under sections 19 and 24 of the 1999 Act(316). See rules 18.8 to 18.13.

PART 19EXPERT EVIDENCE

Contents of this Part
When this Part appliesrule 19.1
Expert’s duty to the courtrule 19.2
Introduction of expert evidencerule 19.3
Content of expert’s reportrule 19.4
Expert to be informed of service of reportrule 19.5
Pre-hearing discussion of expert evidencerule 19.6
Court’s power to direct that evidence is to be given by
  a single joint expertrule 19.7
Instructions to a single joint expertrule 19.8
Court’s power to vary requirements under this Partrule 19.9

When this Part applies

19.1.—(1) This Part applies where a party wants to introduce expert opinion evidence.

(2) A reference to an ‘expert’ in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.

[Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964(317). It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(318), under Part III of the Mental Health Act 1983(319) or under Part 12 of the Criminal Justice Act 2003(320). Those Acts contain requirements about the qualification of medical experts.]

Expert’s duty to the court

19.2.—(1) An expert must help the court to achieve the overriding objective—

(a)by giving opinion which is—

(i)objective and unbiased, and

(ii)within the expert’s area or areas of expertise; and

(b)by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by—

(i)complying with directions made by the court, and

(ii)at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction.

(2) This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.

(3) This duty includes obligations—

(a)to define the expert’s area or areas of expertise—

(i)in the expert’s report, and

(ii)when giving evidence in person;

(b)when giving evidence in person, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise; and

(c)to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement.

Introduction of expert evidence

19.3.—(1) A party who wants another party to admit as fact a summary of an expert’s conclusions must serve that summary—

(a)on the court officer and on each party from whom that admission is sought;

(b)as soon as practicable after the defendant whom it affects pleads not guilty.

(2) A party on whom such a summary is served must—

(a)serve a response stating—

(i)which, if any, of the expert’s conclusions are admitted as fact, and

(ii)where a conclusion is not admitted, what are the disputed issues concerning that conclusion; and

(b)serve the response—

(i)on the court officer and on the party who served the summary,

(ii)as soon as practicable, and in any event not more than 14 days after service of the summary.

(3) A party who wants to introduce expert evidence otherwise than as admitted fact must—

(a)serve a report by the expert which complies with rule 19.4 (Content of expert’s report) on—

(i)the court officer, and

(ii)each other party;

(b)serve the report as soon as practicable, and in any event with any application in support of which that party relies on that evidence;

(c)serve with the report notice of anything of which the party serving it is aware which might reasonably be thought capable of detracting substantially from the credibility of that expert;

(d)if another party so requires, give that party a copy of, or a reasonable opportunity to inspect—

(i)a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and

(ii)anything on which any such examination, measurement, test or experiment was carried out.

(4) Unless the parties otherwise agree or the court directs, a party may not—

(a)introduce expert evidence if that party has not complied with paragraph (3);

(b)introduce in evidence an expert report if the expert does not give evidence in person.

[Note. A party who accepts another party’s expert’s conclusions may admit them as fact under section 10 of the Criminal Justice Act 1967(321).

Under section 81 of the Police and Criminal Evidence Act 1984(322), and under section 20(3) of the Criminal Procedure and Investigations Act 1996(323), Criminal Procedure Rules may require the disclosure of expert evidence before it is introduced as part of a party’s case and prohibit its introduction without the court’s permission, if it was not disclosed as required.

Under section 30 of the Criminal Justice Act 1988(324), an expert report is admissible in evidence whether or not the person who made it gives oral evidence, but if that person does not give oral evidence then the report is admissible only with the court’s permission.]

Content of expert’s report

19.4.  Where rule 19.3(3) applies, an expert’s report must—

(a)give details of the expert’s qualifications, relevant experience and accreditation;

(b)give details of any literature or other information which the expert has relied on in making the report;

(c)contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based;

(d)make clear which of the facts stated in the report are within the expert’s own knowledge;

(e)say who carried out any examination, measurement, test or experiment which the expert has used for the report and—

(i)give the qualifications, relevant experience and accreditation of that person,

(ii)say whether or not the examination, measurement, test or experiment was carried out under the expert’s supervision, and

(iii)summarise the findings on which the expert relies;

(f)where there is a range of opinion on the matters dealt with in the report—

(i)summarise the range of opinion, and

(ii)give reasons for the expert’s own opinion;

(g)if the expert is not able to give an opinion without qualification, state the qualification;

(h)include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence;

(i)contain a summary of the conclusions reached;

(j)contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty; and

(k)contain the same declaration of truth as a witness statement.

[Note. Part 16 contains rules about written witness statements. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(325). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003(326).]

Expert to be informed of service of report

19.5.  A party who serves on another party or on the court a report by an expert must, at once, inform that expert of that fact.

Pre-hearing discussion of expert evidence

19.6.—(1) This rule applies where more than one party wants to introduce expert evidence.

(2) The court may direct the experts to—

(a)discuss the expert issues in the proceedings; and

(b)prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.

(3) Except for that statement, the content of that discussion must not be referred to without the court’s permission.

(4) A party may not introduce expert evidence without the court’s permission if the expert has not complied with a direction under this rule.

[Note. At a pre-trial hearing, a court may make binding rulings about the admissibility of evidence and about questions of law under section 9 of the Criminal Justice Act 1987(327); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(328); and section 8A of the Magistrates’ Courts Act 1980(329).]

Court’s power to direct that evidence is to be given by a single joint expert

19.7.—(1) Where more than one defendant wants to introduce expert evidence on an issue at trial, the court may direct that the evidence on that issue is to be given by one expert only.

(2) Where the co-defendants cannot agree who should be the expert, the court may—

(a)select the expert from a list prepared or identified by them; or

(b)direct that the expert be selected in another way.

Instructions to a single joint expert

19.8.—(1) Where the court gives a direction under rule 19.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.

(2) A co-defendant who gives instructions to the expert must, at the same time, send a copy of the instructions to each other co-defendant.

(3) The court may give directions about—

(a)the payment of the expert’s fees and expenses; and

(b)any examination, measurement, test or experiment which the expert wishes to carry out.

(4) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.

(5) Unless the court otherwise directs, the instructing co-defendants are jointly and severally liable for the payment of the expert’s fees and expenses.

Court’s power to vary requirements under this Part

19.9.—(1) The court may extend (even after it has expired) a time limit under this Part.

(2) A party who wants an extension of time must—

(a)apply when serving the report, summary or notice for which it is required; and

(b)explain the delay.

PART 20HEARSAY EVIDENCE

Contents of this Part
When this Part appliesrule 20.1
Notice to introduce hearsay evidencerule 20.2
Opposing the introduction of hearsay evidencerule 20.3
Unopposed hearsay evidencerule 20.4
Court’s power to vary requirements under this Partrule 20.5

When this Part applies

20.1.  This Part applies—

(a)in a magistrates’ court and in the Crown Court;

(b)where a party wants to introduce hearsay evidence, within the meaning of section 114 of the Criminal Justice Act 2003(330).

[Note. Under section 114 of the Criminal Justice Act 2003, a statement not made in oral evidence is admissible as evidence of any matter stated if—

(a)a statutory provision makes it admissible;

(b)a rule of law preserved by section 118 makes it admissible;

(c)the parties agree to it being admissible; or

(d)it is in the interests of justice for it to be admissible.

Under section 115 of the Act—

(a)a “statement” means any representation of fact or opinion, by any means, and includes a representation in pictorial form; and

(b)a “matter stated” is something stated by someone with the apparent purpose of—

(i)causing another person to believe it, or

(ii)causing another person, or a machine, to act or operate on the basis that the matter is as stated.]

Notice to introduce hearsay evidence

20.2.—(1) This rule applies where a party wants to introduce hearsay evidence for admission under any of the following sections of the Criminal Justice Act 2003—

(a)section 114(1)(d) (evidence admissible in the interests of justice);

(b)section 116 (evidence where a witness is unavailable);

(c)section 117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings);

(d)section 121 (multiple hearsay).

(2) That party must—

(a)serve notice on—

(i)the court officer, and

(ii)each other party;

(b)in the notice—

(i)identify the evidence that is hearsay,

(ii)set out any facts on which that party relies to make the evidence admissible,

(iii)explain how that party will prove those facts if another party disputes them, and

(iv)explain why the evidence is admissible; and

(c)attach to the notice any statement or other document containing the evidence that has not already been served.

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—

(a)28 days after the defendant pleads not guilty, in a magistrates’ court; or

(b)14 days after the defendant pleads not guilty, in the Crown Court.

(4) A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.

(5) A party entitled to receive a notice under this rule may waive that entitlement by so informing—

(a)the party who would have served it; and

(b)the court.

[Note. The Practice Direction sets out a form of notice for use in connection with this rule.

The sections of the Criminal Justice Act 2003 listed in this rule set out the conditions on which hearsay evidence may be admitted under them.

If notice is not given as this rule requires, then under section 132(5) of the 2003 Act—

(a)the evidence is not admissible without the court’s permission;

(b)if the court gives permission, it may draw such inferences as appear proper from the failure to give notice; and

(c)the court may take the failure into account in exercising its powers to order costs.

This rule does not require notice of hearsay evidence that is admissible under any of the following sections of the 2003 Act—

(a)section 117 (business and other documents), otherwise than as required by rule 20.2(1)(c);

(b)section 118 (preservation of certain common law categories of admissibility);

(c)section 119 (inconsistent statements);

(d)section 120 (other previous statements of witness); or

(e)section 127(331) (expert evidence: preparatory work): but see Part 19 for the procedure where a party wants to introduce such evidence.]

Opposing the introduction of hearsay evidence

20.3.—(1) This rule applies where a party objects to the introduction of hearsay evidence.

(2) That party must—

(a)apply to the court to determine the objection;

(b)serve the application on—

(i)the court officer, and

(ii)each other party;

(c)serve the application as soon as reasonably practicable, and in any event not more than 14 days after—

(i)service of notice to introduce the evidence under rule 20.2,

(ii)service of the evidence to which that party objects, if no notice is required by that rule, or

(iii)the defendant pleads not guilty

whichever of those events happens last; and

(d)in the application, explain—

(i)which, if any, facts set out in a notice under rule 20.2 that party disputes,

(ii)why the evidence is not admissible, and

(iii)any other objection to the evidence.

(3) The court—

(a)may determine an application—

(i)at a hearing, in public or in private, or

(ii)without a hearing;

(b)must not determine the application unless the party who served the notice—

(i)is present, or

(ii)has had a reasonable opportunity to respond;

(c)may adjourn the application; and

(d)may discharge or vary a determination where it can do so under—

(i)section 8B of the Magistrates’ Courts Act 1980(332) (ruling at pre-trial hearing in a magistrates’ court), or

(ii)section 9 of the Criminal Justice Act 1987(333), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(334) (ruling at preparatory or other pre-trial hearing in the Crown Court).

Unopposed hearsay evidence

20.4.—(1) This rule applies where—

(a)a party has served notice to introduce hearsay evidence under rule 20.2; and

(b)no other party has applied to the court to determine an objection to the introduction of the evidence.

(2) The court must treat the evidence as if it were admissible by agreement.

[Note. Under section 132(4) of the Criminal Justice Act 2003, rules may provide that evidence is to be treated as admissible by agreement of the parties if notice to introduce that evidence has not been opposed.]

Court’s power to vary requirements under this Part

20.5.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part;

(b)allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally;

(c)dispense with the requirement for notice to introduce hearsay evidence.

(2) A party who wants an extension of time must—

(a)apply when serving the application or notice for which it is needed; and

(b)explain the delay.

PART 21EVIDENCE OF BAD CHARACTER

Contents of this Part
When this Part appliesrule 21.1
Content of application or noticerule 21.2
Application to introduce evidence of a non-defendant’s bad characterrule 21.3
Notice to introduce evidence of a defendant’s bad characterrule 21.4
Reasons for decisionsrule 21.5
Court’s power to vary requirements under this Partrule 21.6

When this Part applies

21.1.  This Part applies—

(a)in a magistrates’ court and in the Crown Court;

(b)where a party wants to introduce evidence of bad character, within the meaning of section 98 of the Criminal Justice Act 2003(335).

[Note. Under section 98 of the Criminal Justice Act 2003, evidence of a person’s bad character means evidence of, or of a disposition towards, misconduct on that person’s part, other than evidence that—

(a)has to do with the alleged facts of the offence; or

(b)is evidence of misconduct in connection with the investigation or prosecution.

Under section 100(1) of the Criminal Justice Act 2003, evidence of a non-defendant’s bad character is admissible 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.

The section explains requirements (a) and (b). Unless the parties agree to the evidence being admissible, it may not be introduced without the court’s permission.

Under section 101(1) of the Criminal Justice Act 2003, evidence of a defendant’s bad character is admissible if

(a)all parties to the proceedings agree to the evidence being admissible;

(b)the evidence is introduced by the defendant, or is given in answer to a question asked by the defendant in cross-examination which was intended to elicit that evidence;

(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.

Sections 102 to 106 of the Act supplement those requirements. The court must not admit evidence under (d) or (g) if, on an application by the defendant, the court concludes that to do so would be unfair.]

Content of application or notice

21.2.—(1) A party who wants to introduce evidence of bad character must—

(a)make an application under rule 21.3, where it is evidence of a non-defendant’s bad character;

(b)give notice under rule 21.4, where it is evidence of a defendant’s bad character.

(2) An application or notice must—

(a)set out the facts of the misconduct on which that party relies,

(b)explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and

(c)explain why the evidence is admissible.

[Note. The Practice Direction sets out forms of application and notice for use in connection with rules 21.3 and 21.4.

The fact that a person was convicted of an offence may be proved under

(a)section 73 of the Police and Criminal Evidence Act 1984(336) (conviction in the United Kingdom or European Union); or

(b)section 7 of the Evidence Act 1851(337) (conviction outside the United Kingdom).

See also sections 117 and 118 of the Criminal Justice Act 2003 (admissibility of evidence contained in business and other documents).

Under section 10 of the Criminal Justice Act 1967(338), a party may admit a matter of fact.]

Application to introduce evidence of a non-defendant’s bad character

21.3.—(1) This rule applies where a party wants to introduce evidence of the bad character of a person other than the defendant.

(2) That party must serve an application to do so on—

(a)the court officer; and

(b)each other party.

(3) The applicant must serve the application—

(a)as soon as reasonably practicable; and in any event

(b)not more than 14 days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

(4) A party who objects to the introduction of the evidence must—

(a)serve notice on—

(i)the court officer, and

(ii)each other party

not more than 14 days after service of the application; and

(b)in the notice explain, as applicable—

(i)which, if any, facts of the misconduct set out in the application that party disputes,

(ii)what, if any, facts of the misconduct that party admits instead,

(iii)why the evidence is not admissible, and

(iv)any other objection to the application.

(5) The court—

(a)may determine an application—

(i)at a hearing, in public or in private, or

(ii)without a hearing;

(b)must not determine the application unless each party other than the applicant—

(i)is present, or

(ii)has had at least 14 days in which to serve a notice of objection;

(c)may adjourn the application; and

(d)may discharge or vary a determination where it can do so under—

(i)section 8B of the Magistrates’ Courts Act 1980(339) (ruling at pre-trial hearing in a magistrates’ court), or

(ii)section 9 of the Criminal Justice Act 1987(340), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(341) (ruling at preparatory or other pre-trial hearing in the Crown Court).

[Note. The Practice Direction sets out a form of application for use in connection with this rule.

See also rule 21.5 (reasons for decisions must be given in public).]

Notice to introduce evidence of a defendant’s bad character

21.4.—(1) This rule applies where a party wants to introduce evidence of a defendant’s bad character.

(2) That party must serve notice on—

(a)the court officer; and

(b)each other party.

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—

(a)28 days after the defendant pleads not guilty, in a magistrates’ court; or

(b)14 days after the defendant pleads not guilty, in the Crown Court.

(4) A co-defendant who wants to introduce such evidence must serve the notice—

(a)as soon as reasonably practicable; and in any event

(b)not more than 14 days after the prosecutor discloses material on which the notice is based.

(5) A party who objects to the introduction of the evidence must—

(a)apply to the court to determine the objection;

(b)serve the application on—

(i)the court officer, and

(ii)each other party

not more than 14 days after service of the notice; and

(c)in the application explain, as applicable—

(i)which, if any, facts of the misconduct set out in the notice that party disputes,

(ii)what, if any, facts of the misconduct that party admits instead,

(iii)why the evidence is not admissible,

(iv)why it would be unfair to admit the evidence, and

(v)any other objection to the notice.

(6) The court—

(a)may determine an application—

(i)at a hearing, in public or in private, or

(ii)without a hearing;

(b)must not determine the application unless the party who served the notice—

(i)is present, or

(ii)has had a reasonable opportunity to respond;

(c)may adjourn the application; and

(d)may discharge or vary a determination where it can do so under—

(i)section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or

(ii)section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).

(7) A party entitled to receive a notice may waive that entitlement by so informing—

(a)the party who would have served it; and

(b)the court.

[Note. The Practice Direction sets out a form of notice for use in connection with this rule.

See also rule 21.5 (reasons for decisions must be given in public).

If notice is not given as this rule requires, then under section 111(4) of the Criminal Justice Act 2003 the court may take the failure into account in exercising its powers to order costs.]

Reasons for decisions

21.5.  The court must announce at a hearing in public (but in the absence of the jury, if there is one) the reasons for a decision—

(a)to admit evidence as evidence of bad character, or to refuse to do so; or

(b)to direct an acquittal or a retrial under section 107 of the Criminal Justice Act 2003.

[Note. See section 110 of the Criminal Justice Act 2003.]

Court’s power to vary requirements under this Part

21.6.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part;

(b)allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally;

(c)dispense with a requirement for notice to introduce evidence of a defendant’s bad character.

(2) A party who wants an extension of time must—

(a)apply when serving the application or notice for which it is needed; and

(b)explain the delay.

PART 22EVIDENCE OF A COMPLAINANT’S PREVIOUS SEXUAL BEHAVIOUR

Contents of this Part
When this Part appliesrule 22.1
Application for permission
  to introduce evidence or cross-examinerule 22.2
Content of applicationrule 22.3
Service of applicationrule 22.4
Reply to applicationrule 22.5
Application for special measuresrule 22.6
Court’s power to vary requirements under this Partrule 22.7

When this Part applies

22.1.  This Part applies in magistrates’ courts and in the Crown Court where a defendant wants to—

(a)introduce evidence; or

(b)cross-examine a witness,

about a complainant’s sexual behaviour despite the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999(342).

[Note: Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits evidence or cross-examination about the sexual behaviour of a complainant of a sexual offence, subject to exceptions.

See also

(a)section 42 of the 1999 Act(343), which among other things defines ‘sexual behaviour’ and ‘sexual offence’;

(b)section 43(344), which among other things, requires—

(i)an application under section 41 to be heard in private and in the absence of the complainant,

(ii)the reasons for the court’s decision on an application to be given in open court, and

(iii)the court to state in open court the extent to which evidence may be introduced or questions asked; and

(c)section 34, which prohibits cross-examination by a defendant in person of the complainant of a sexual offence (Part 23 contains relevant rules).]

Application for permission to introduce evidence or cross-examine

22.2.  The defendant must apply for permission to do so—

(a)in writing; and

(b)not more than 28 days after the prosecutor has complied or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996(345) (disclosure by prosecutor).

[Note. See Part 3 for the court’s general powers to consider an application with or without a hearing and to give directions.

At a pre-trial hearing a court may make binding rulings about the admissibility of evidence and about questions of law under section 9 of the Criminal Justice Act 1987(346); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(347); and section 8A of the Magistrates’ Courts Act 1980(348).]

Content of application

22.3.  The application must—

(a)identify the issue to which the defendant says the complainant’s sexual behaviour is relevant;

(b)give particulars of—

(i)any evidence that the defendant wants to introduce, and

(ii)any questions that the defendant wants to ask;

(c)identify the exception to the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999 on which the defendant relies; and

(d)give the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce.

Service of application

22.4.  The defendant must serve the application on the court officer and all other parties.

Reply to application

22.5.  A party who wants to make representations about an application under rule 22.2 must—

(a)do so in writing not more than 14 days after receiving it; and

(b)serve those representations on the court officer and all other parties.

Application for special measures

22.6.  If the court allows an application under rule 22.2 then—

(a)a party may apply not more than 14 days later for a special measures direction or for the variation of an existing special measures direction; and

(b)the court may shorten the time for opposing that application.

[Note. Special measures to improve the quality of evidence given by certain witnesses may be directed by the court under section 19 of the Youth Justice and Criminal Evidence Act 1999 and varied under section 20(349). An application for a special measures direction may be made by a party under Part 18 or the court may make a direction on its own initiative. Rule 18.13(2) sets the usual time limit (14 days) for opposing a special measures application.]

Court’s power to vary requirements under this Part

22.7.  The court may shorten or extend (even after it has expired) a time limit under this Part.

PART 23RESTRICTION ON CROSS-EXAMINATION BY A DEFENDANT

Contents of this Part
General rules
When this Part appliesrule 23.1
Appointment of advocate to cross-examine witnessrule 23.2
Application to prohibit cross-examination
Exercise of court’s powersrule 23.3
Application to prohibit cross-examinationrule 23.4
Application to discharge prohibition imposed by the courtrule 23.5
Application containing information withheld from another partyrule 23.6
Representations in responserule 23.7
Court’s power to vary requirementsrule 23.8

GENERAL RULES

When this Part applies

23.1.  This Part applies where—

(a)a defendant may not cross-examine in person a witness because of section 34 or section 35 of the Youth Justice and Criminal Evidence Act 1999(350) (Complainants in proceedings for sexual offences; Child complainants and other child witnesses);

(b)the court can prohibit a defendant from cross-examining in person a witness under section 36 of that Act(351) (Direction prohibiting accused from cross-examining particular witness).

[Note. Under section 34 of the Youth Justice and Criminal Evidence Act 1999, no defendant charged with a sexual offence may cross-examine in person a witness who is the complainant, either

(a)in connection with that offence; or

(b)in connection with any other offence (of whatever nature) with which that defendant is charged in the proceedings.

Under section 35 of the 1999 Act, no defendant charged with an offence listed in that section may cross-examine in person a protected witness, either

(a)in connection with that offence; or

(b)in connection with any other offence (of whatever nature) with which that defendant is charged in the proceedings.

A ‘protected witness’ is one who

(a)either is the complainant or is alleged to have been a witness to the commission of the offence; and

(b)either is a child, within the meaning of section 35, or is due to be cross-examined after giving evidence in chief—

(i)by means of a video recording made when the witness was a child, or

(ii)in any other way when the witness was a child.

Under section 36 of the 1999 Act, where neither section 34 nor section 35 applies the court may give a direction prohibiting the defendant from cross-examining, or further cross-examining, in person a witness, on application by the prosecutor or on the court’s own initiative. See also rules 23.3 to 23.7.]

Appointment of advocate to cross-examine witness

23.2.—(1) This rule applies where a defendant may not cross-examine in person a witness in consequence of—

(a)the prohibition imposed by section 34 or section 35 of the Youth Justice and Criminal Evidence Act 1999; or

(b)a prohibition imposed by the court under section 36 of the 1999 Act.

(2) The court must, as soon as practicable, explain in terms the defendant can understand (with help, if necessary)—

(a)the prohibition and its effect;

(b)that the defendant is entitled to arrange for a lawyer with a right of audience in the court to cross-examine the witness on his or her behalf;

(c)that the defendant must notify the court officer of the identity of any such lawyer, with details of how to contact that person, by no later than a date set by the court;

(d)that if the defendant does not want to make such arrangements, or if the defendant gives no such notice by that date, then—

(i)the court must decide whether it is necessary in the interests of justice to appoint such a lawyer to cross-examine the witness for the defendant, and

(ii)if the court decides that that is necessary, the court will appoint a lawyer chosen by the court.

(3) Having given those explanations, the court must—

(a)ask whether the defendant wants to arrange for a lawyer to cross-examine the witness, and set a date by when the defendant must notify the court officer of the identity of that lawyer if the answer to that question is ‘yes’;

(b)if the answer to that question is ‘no’, or if by the date set the defendant has given no such notice—

(i)decide whether it is necessary in the interests of justice for the witness to be cross-examined by an advocate appointed to represent the defendant’s interests, and

(ii)if the court decides that that is necessary, give directions for the appointment of such an advocate.

(4) Where an advocate is appointed by the court—

(a)the directions that the court gives under paragraph (3)(b)(ii) must provide for the material to be supplied to that advocate, including by whom and when it must be supplied; and

(b)the appointment terminates at the conclusion of the cross-examination of the witness.

(5) The court may give the explanations and ask the questions required by this rule—

(a)at a hearing, in public or in private; or

(b)without a hearing, by written notice to the defendant.

(6) The court may extend (even after it has expired) the time limit that it sets under paragraph (3)(a)—

(a)on application by the defendant; or

(b)on its own initiative.

[Note. See section 38 of the Youth Justice and Criminal Evidence Act 1999(352). Under section 38(8) the references in that section to a ‘legal representative’ are to a representative who is an advocate within the meaning of rule 2.2.]

APPLICATION TO PROHIBIT CROSS-EXAMINATION

Exercise of court’s powers

23.3.—(1) The court may decide whether to impose or discharge a prohibition against cross-examination under section 36 of the Youth Justice and Criminal Evidence Act 1999—

(a)at a hearing, in public or in private, or without a hearing;

(b)in a party’s absence, if that party—

(i)applied for the prohibition or discharge, or

(ii)has had at least 14 days in which to make representations.

(2) The court must announce, at a hearing in public before the witness gives evidence, the reasons for a decision—

(a)to impose or discharge such a prohibition; or

(b)to refuse to do so.

[Note. See section 37 of the Youth Justice and Criminal Evidence Act 1999(353).]

Application to prohibit cross-examination

23.4.—(1) This rule applies where under section 36 of the Youth Justice and Criminal Evidence Act 1999 the prosecutor wants the court to prohibit the cross-examination of a witness by a defendant in person.

(2) The prosecutor must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer,

(ii)the defendant who is the subject of the application, and

(iii)any other defendant, unless the court otherwise directs.

(3) The application must—

(a)report any views that the witness has expressed about whether he or she is content to be cross-examined by the defendant in person;

(b)identify—

(i)the nature of the questions likely to be asked, having regard to the issues in the case,

(ii)any relevant behaviour of the defendant at any stage of the case, generally and in relation to the witness,

(iii)any relationship, of any nature, between the witness and the defendant,

(iv)any other defendant in the case who is subject to such a prohibition in respect of the witness, and

(v)any special measures direction made in respect of the witness, or for which an application has been made;

(c)explain why the quality of evidence given by the witness on cross-examination—

(i)is likely to be diminished if no such prohibition is imposed, and

(ii)would be likely to be improved if it were imposed; and

(d)explain why it would not be contrary to the interests of justice to impose the prohibition.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.]

Application to discharge prohibition imposed by the court

23.5.—(1) A party who wants the court to discharge a prohibition against cross-examination which the court imposed under section 36 of the Youth Justice and Criminal Evidence Act 1999 must—

(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and

(b)serve the application on—

(i)the court officer, and

(ii)each other party.

(2) The applicant must—

(a)explain what material circumstances have changed since the prohibition was imposed; and

(b)ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. Under section 37 of the Youth Justice and Criminal Evidence Act 1999, the court can discharge a prohibition against cross-examination which it has imposed—

(a)on application, if there has been a material change of circumstances; or

(b)on its own initiative.

The Practice Direction sets out a form of application for use in connection with this rule.]

Application containing information withheld from another party

23.6.—(1) This rule applies where—

(a)an applicant serves an application for the court to impose a prohibition against cross-examination, or for the discharge of such a prohibition; and

(b)the application includes information that the applicant thinks ought not be revealed to another party.

(2) The applicant must—

(a)omit that information from the part of the application that is served on that other party;

(b)mark the other part to show that, unless the court otherwise directs, it is only for the court; and

(c)in that other part, explain why the applicant has withheld that information from that other party.

(3) Any hearing of an application to which this rule applies—

(a)must be in private, unless the court otherwise directs; and

(b)if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld.

(4) At any hearing of an application to which this rule applies—

(a)the general rule is that the court must consider, in the following sequence—

(i)representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii)further representations by the applicant, in the absence of a party from whom information has been withheld; but

(b)the court may direct other arrangements for the hearing.

[Note. See section 37 of the Youth Justice and Criminal Evidence Act 1999.]

Representations in response

23.7.—(1) This rule applies where a party wants to make representations about—

(a)an application under rule 23.4 for a prohibition against cross-examination;

(b)an application under rule 23.5 for the discharge of such a prohibition; or

(c)a prohibition or discharge that the court proposes on its own initiative.

(2) Such a party must—

(a)serve the representations on—

(i)the court officer, and

(ii)each other party;

(b)do so not more than 14 days after, as applicable—

(i)service of the application, or

(ii)notice of the prohibition or discharge that the court proposes; and

(c)ask for a hearing, if that party wants one, and explain why it is needed.

(3) Representations against a prohibition must explain in what respect the conditions for imposing it are not met.

(4) Representations against the discharge of a prohibition must explain why it should not be discharged.

(5) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—

(a)omit that information from the representations served on that other party;

(b)mark the information to show that, unless the court otherwise directs, it is only for the court; and

(c)with that information include an explanation of why it has been withheld from that other party.

Court’s power to vary requirements

23.8.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under rule 23.4 (Application to prohibit cross-examination), rule 23.5 (Application to discharge prohibition imposed by the court) or rule 23.7 (Representations in response); and

(b)allow an application or representations required by any of those rules to be made in a different form to one set out in the Practice Direction, or to be made orally.

(2) A person who wants an extension of time must—

(a)apply when serving the application or representations for which it is needed; and

(b)explain the delay.

PART 24TRIAL AND SENTENCE IN A MAGISTRATES’ COURT

Contents of this Part
When this Part appliesrule 24.1
General rulesrule 24.2
Procedure on plea of not guiltyrule 24.3
Evidence of a witness in personrule 24.4
Evidence of a witness in writingrule 24.5
Evidence by admissionrule 24.6
Procedure on plea of guiltyrule 24.7
Written guilty plea: special rulesrule 24.8
Single justice procedure: special rulesrule 24.9
Application to withdraw a guilty plearule 24.10
Procedure if the court convictsrule 24.11
Procedure where a party is absentrule 24.12
Provision of documents for the courtrule 24.13
Place of trialrule 24.14
Duty of justices’ legal adviserrule 24.15
Duty of court officerrule 24.16
Statutory declaration of ignorance of proceedingsrule 24.17
Setting aside a conviction or varying a costs, etc. orderrule 24.18

[Note. Part 3 contains rules about case management that apply at trial as well as during preparation for trial. The rules in this Part must be read in conjunction with those rules.]

When this Part applies

24.1.—(1) This Part applies in a magistrates’ court where—

(a)the court tries a case;

(b)the defendant pleads guilty;

(c)under section 14 or section 16E of the Magistrates’ Courts Act 1980(354), the defendant makes a statutory declaration of not having found out about the case until after the trial began;

(d)under section 142 of the 1980 Act(355), the court can—

(i)set aside a conviction, or

(ii)vary or rescind a costs order, or an order to which Part 31 applies (Behaviour orders).

(2) Where the defendant is under 18, in this Part—

(a)a reference to convicting the defendant includes a reference to finding the defendant guilty of an offence; and

(b)a reference to sentence includes a reference to an order made on a finding of guilt.

[Note. A magistrates’ court’s powers to try an allegation of an offence are contained in section 2 of the Magistrates’ Courts Act 1980(356). In relation to a defendant under 18, they are contained in sections 45, 46 and 48 of the Children and Young Persons Act 1933(357).

See also section 18 of the Children and Young Persons Act 1963(358), section 47 of the Crime and Disorder Act 1998(359) and section 9 of the Powers of Criminal Courts (Sentencing) Act 2000(360).

The exercise of the court’s powers is affected by—

(a)the classification of the offence (and the general rule, subject to exceptions, is that a magistrates’ court must try—

(i)an offence classified as one that can be tried only in a magistrates’ court (in other legislation, described as triable only summarily), and

(ii)an offence classified as one that can be tried either in a magistrates’ court or in the Crown Court (in other legislation, described as triable either way) that has been allocated for trial in a magistrates’ court); and

(b)the defendant’s age (and the general rule, subject to exceptions, is that an allegation of an offence against a defendant under 18 must be tried in a magistrates’ court sitting as a youth court, irrespective of the classification of the offence and without allocation for trial there).

Under sections 10, 14, 27A, 121 and 148 of the Magistrates’ Courts Act 1980(361) and the Justices of the Peace (Size and Chairmanship of Bench) Rules 2005(362), the court—

(a)must comprise at least two but not more than three justices, or a District Judge (Magistrates’ Courts) (but a single member can adjourn the hearing);

(b)must not include any member who adjudicated at a hearing to which rule 24.17 applies (defendant’s declaration of no knowledge of hearing);

(c)when reaching a verdict, must not include any member who was absent from any part of the hearing;

(d)when passing sentence, need not include any of the members who reached the verdict (but may do so).

Under section 16A of the Magistrates’ Courts Act 1980(363), the court may comprise a single justice where—

(a)the offence charged is a summary offence not punishable with imprisonment;

(b)the defendant was at least 18 years old when charged;

(c)the court is satisfied that specified documents giving notice of the procedure under that section and containing other specified information have been served on the defendant; and

(d)the defendant has not served notice of an intention to plead not guilty, or of a desire not to be tried in accordance with that section.

Under the Youth Courts (Constitution of Committees and Right to Preside) Rules 2007(364), where the court is a youth court comprising justices—

(a)each member must be qualified to sit as a member of that youth court; and

(b)the members must include at least one man and one woman, unless—

(i)either is unavailable, and

(ii)the members present decide that the hearing will be delayed unreasonably if they do not proceed.

Under section 150 of the Magistrates’ Courts Act 1980(365), where two or more justices are present one may act on behalf of all.

Section 59 of the Children and Young Persons Act 1933(366) requires that—

(a)the expressions ‘conviction’ and ‘sentence’ must not be used by a magistrates’ court dealing with a defendant under 18; and

(b)a reference in legislation to a defendant who is convicted, to a conviction, or to a sentence, must be read as including a reference to a defendant who is found guilty of an offence, a finding of guilt, or an order made on a finding of guilt, respectively.

Under section 14 of the Magistrates’ Courts Act 1980, proceedings which begin with a summons or requisition will become void if the defendant, at any time during or after the trial, makes a statutory declaration that he or she did not know of them until a date after the trial began. See rule 24.17.

Under section 142 of the Magistrates’ Courts Act 1980—

(a)where a defendant is convicted by a magistrates’ court, the court may order that the case should be heard again by different justices; and

(b)the court may vary or rescind an order which it has made when dealing with a convicted defendant,

if in either case it appears to the court to be in the interests of justice to do so. See rule 24.18.

See also Part 32 (Breach, revocation and amendment of community and other orders). Rule 32.4 (Procedure on application by responsible officer) applies rules in this Part to the procedure with which that rule deals.]

General rules

24.2.—(1) Where this Part applies—

(a)the general rule is that the hearing must be in public; but

(b)the court may exercise any power it has to—

(i)impose reporting restrictions,

(ii)withhold information from the public, or

(iii)order a hearing in private; and

(c)unless the court otherwise directs, only the following may attend a hearing in a youth court—

(i)the parties and their legal representatives,

(ii)a defendant’s parents, guardian or other supporting adult,

(iii)a witness,

(iv)anyone else directly concerned in the case, and

(v)a representative of a news-gathering or reporting organisation.

(2) Unless already done, the justices’ legal adviser or the court must—

(a)read the allegation of the offence to the defendant;

(b)explain, in terms the defendant can understand (with help, if necessary)—

(i)the allegation, and

(ii)what the procedure at the hearing will be;

(c)ask whether the defendant has been advised about the potential effect on sentence of a guilty plea;

(d)ask whether the defendant pleads guilty or not guilty; and

(e)take the defendant’s plea.

(3) The court may adjourn the hearing—

(a)at any stage, to the same or to another magistrates’ court; or

(b)to a youth court, where the court is not itself a youth court and the defendant is under 18.

(4) Paragraphs (1) and (2) of this rule do not apply where the court tries a case under rule 24.9 (Single justice procedure: special rules).

[Note. See sections 10, 16A, 27A, 29 and 121 of the Magistrates’ Courts Act 1980(367) and sections 46 and 47 of the Children and Young Persons Act 1933.

Where the case has been allocated for trial in a magistrates’ court, part of the procedure under rule 24.2(2) will have taken place.

Part 6 contains rules about reporting, etc. restrictions. For a list of the court’s powers to impose reporting and access restrictions, see the note to rule 6.1.

Under section 34A of the Children and Young Persons Act 1933(368), the court—

(a)may require the defendant’s parents or guardian to attend court with the defendant, where the defendant is under 18; and

(b)must do so, where the defendant is under 16,

unless satisfied that that would be unreasonable.

Part 7 contains rules about (among other things) the issue of a summons to a parent or guardian.

Part 46 (Representatives) contains rules allowing a parent, guardian or other supporting adult to help a defendant under 18.]

Procedure on plea of not guilty

24.3.—(1) This rule applies—

(a)if the defendant has—

(i)entered a plea of not guilty, or

(ii)not entered a plea; or

(b)if, in either case, it appears to the court that there may be grounds for making a hospital order without convicting the defendant.

(2) If a not guilty plea was taken on a previous occasion, the justices’ legal adviser or the court must ask the defendant to confirm that plea.

(3) In the following sequence—

(a)the prosecutor may summarise the prosecution case, identifying the relevant law and facts;

(b)the prosecutor must introduce the evidence on which the prosecution case relies;

(c)at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court—

(i)may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but

(ii)must not do so unless the prosecutor has had an opportunity to make representations;

(d)the justices’ legal adviser or the court must explain, in terms the defendant can understand (with help, if necessary)—

(i)the right to give evidence, and

(ii)the potential effect of not doing so at all, or of refusing to answer a question while doing so;

(e)the defendant may introduce evidence;

(f)a party may introduce further evidence if it is then admissible (for example, because it is in rebuttal of evidence already introduced);

(g)the prosecutor may make final representations in support of the prosecution case, where—

(i)the defendant is represented by a legal representative, or

(ii)whether represented or not, the defendant has introduced evidence other than his or her own; and

(h)the defendant may make final representations in support of the defence case.

(4) Where a party wants to introduce evidence or make representations after that party’s opportunity to do so under paragraph (3), the court—

(a)may refuse to receive any such evidence or representations; and

(b)must not receive any such evidence or representations after it has announced its verdict.

(5) If the court—

(a)convicts the defendant; or

(b)makes a hospital order instead of doing so,

it must give sufficient reasons to explain its decision.

(6) If the court acquits the defendant, it may—

(a)give an explanation of its decision; and

(b)exercise any power it has to make—

(i)a behaviour order,

(ii)a costs order.

[Note. See section 9 of the Magistrates’ Courts Act 1980(369).

Under section 37(3) of the Mental Health Act 1983(370), if the court is satisfied that the defendant did the act or made the omission alleged, then it may make a hospital order without convicting the defendant.

Under section 35 of the Criminal Justice and Public Order Act 1994(371), the court may draw such inferences as appear proper from a defendant’s failure to give evidence, or refusal without good cause to answer a question while doing so. The procedure set out in rule 37.3(3)(d) is prescribed by that section.

The admissibility of evidence that a party introduces is governed by rules of evidence.

Section 2 of the Criminal Procedure Act 1865(372) and section 3 of the Criminal Evidence Act 1898(373) restrict the circumstances in which the prosecutor may make final representations without the court’s permission.

See rule 24.11 for the procedure if the court convicts the defendant.

Part 31 contains rules about behaviour orders.]

Evidence of a witness in person

24.4.—(1) This rule applies where a party wants to introduce evidence by calling a witness to give that evidence in person.

(2) Unless the court otherwise directs—

(a)a witness waiting to give evidence must not wait inside the courtroom, unless that witness is—

(i)a party, or

(ii)an expert witness;

(b)a witness who gives evidence in the courtroom must do so from the place provided for that purpose; and

(c)a witness’ address must not be announced unless it is relevant to an issue in the case.

(3) Unless other legislation otherwise provides, before giving evidence a witness must take an oath or affirm.

(4) In the following sequence—

(a)the party who calls a witness must ask questions in examination-in-chief;

(b)every other party may ask questions in cross-examination;

(c)the party who called the witness may ask questions in re-examination.

(5) If other legislation so permits, at any time while giving evidence a witness may refer to a record of that witness’ recollection of events.

(6) The justices’ legal adviser or the court may—

(a)ask a witness questions; and in particular

(b)where the defendant is not represented, ask any question necessary in the defendant’s interests.

[Note. Section 53 of the Youth Justice and Criminal Evidence Act 1999(374) provides that everyone is competent to give evidence in criminal proceedings unless unable to understand questions put or give intelligible answers. See also section 1 of the Criminal Evidence Act 1898(375).

Sections 1, 3, 5 and 6 of the Oaths Act 1978(376) provide for the taking of oaths and the making of affirmations, and for the words that must be used. Section 28 of the Children and Young Persons Act 1963(377) provides that in a youth court, and where a witness in any