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The Criminal Procedure Rules 2012

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Statutory Instruments

2012 No. 1726 (L. 6)

Senior Courts Of England And Wales

Magistrates’ Courts, England And Wales

The Criminal Procedure Rules 2012

Made

2nd July 2012

Laid before Parliament

12th July 2012

Coming into force

1st October 2012

The Criminal Procedure Rule Committee—

(a)revokes the Criminal Procedure Rules 2011(1) and makes the following Rules under section 69 of the Courts Act 2003(2), after consulting in accordance with section 72(1)(a) of that Act; and

(b)in making the Rules listed in the first column of this table, exercises also the powers listed in the corresponding entry in the second column—

RulePower
Part 6, sections 1, 2 and 3Paragraph 10 of Schedule 5, paragraph 4 of Schedule 6, and paragraph 5 of Schedule 6A to the Terrorism Act 2000(3)
Part 6, sections 1, 2 and 4Sections 351(2), 362(2), 369(2) and 375(1) of the Proceeds of Crime Act 2002(4)
6.26Section 74(3) of the Senior Courts Act 1981(5)
10.4Paragraph 4 of Schedule 2 to the Criminal Procedure and Investigations Act 1996(6)
19.6Section 5B(9) of the Bail Act 1976(7)
Part 21Section 48 of the Criminal Law Act 1977(8)
33.4Section 81 of the Police and Criminal Evidence Act 1984(9) and section 20(3) of the Criminal Procedure and Investigations Act 1996(10)
34.4Section 132(4) of the Criminal Justice Act 2003(11)
42.4Section 155(7) of the Powers of Criminal Courts (Sentencing) Act 2000(12)
57.7, 61.6, 61.8 and 61.9Section 91 of the Proceeds of Crime Act 2002(13)
62.16Section 19 of the Criminal Procedure and Investigations Act 1996(14)
63.10Sections 73(2) and 74(2), (3) and (4) of the Senior Courts Act 1981(15)
65.8Section 87(4) of the Senior Courts Act 1981(16)
76.6Section 52 of the Senior Courts Act 1981(17)

These rules may be cited as the Criminal Procedure Rules 2012 and shall come into force on 1st October 2012.

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 new 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
Representativesrule 2.4

When the Rules apply

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

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

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

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

(3) The Rules apply on and after 1st October, 2012, but unless the court otherwise directs they do not affect a right or duty existing under The Criminal Procedure Rules 2011(18).

(4) Rule 9.6, and the rules in Section 3 of Part 9 (Allocation and sending for trial), apply only where there have come into force the amendments made by Schedule 3 to the Criminal Justice Act 2003(19) (Allocation of cases triable either way, and sending cases to the Crown Court, etc.) which confer the powers to which those rules apply.

[Note. The rules replaced by the first Criminal Procedure Rules (The Criminal Procedure Rules 2005 (20)) were revoked when those Rules came into force by provisions of the Courts Act 2003, The Courts Act 2003 (Consequential Amendments) Order 2004 (21) and The Courts Act 2003 (Commencement No. 6 and Savings) Order 2004 (22). The first Criminal Procedure Rules reproduced the substance of all the rules they replaced.]

Definitions

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

‘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;

‘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 Consolidated Criminal Practice Direction, 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(23); 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 Acts of Parliament and to Statutory Instruments

2.3.  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(24) 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(25) those Regulations are called ‘the 2011 Regulations’.

Representatives

2.4.—(1) Under these Rules, unless the context makes it clear that something different is meant, anything that a party may or must do may be done—

(a)by a legal representative on that party’s behalf;

(b)by a person with the corporation’s written authority, where that party is a corporation;

(c)with the help of a parent, guardian or other suitable supporting adult where that party is a defendant—

(i)who is under 18, or

(ii)whose understanding of what the case involves is limited.

(2) Anyone with a prosecutor’s authority to do so may, on that prosecutor’s behalf—

(a)serve on the magistrates’ court officer, or present to a magistrates’ court, an information under section 1 of the Magistrates’ Courts Act 1980(26); or

(b)issue a written charge and requisition under section 29 of the Criminal Justice Act 2003(27).

[Note. See also section 122 of the Magistrates’ Courts Act 1980 (28). A party’s legal representative must be entitled to act as such under section 13 of the Legal Services Act 2007 (29).

Section 33(6) of the Criminal Justice Act 1925 (30), section 46 of the Magistrates’ Courts Act 1980 (31) and Schedule 3 to that Act (32) provide for the representation of a corporation.

Section 223 of the Local Government Act 1972 (33) allows a member or officer of a local authority on that authority’s behalf to prosecute or defend a case before a magistrates’ court, and to appear in and to conduct any proceedings before a magistrates’ court.

Part 7 contains rules about starting a prosecution.]

PART 3CASE MANAGEMENT

Contents of this Part
The scope of this Partrule 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
Case preparation and progressionrule 3.8
Readiness for trial or appealrule 3.9
Conduct of a trial or an appealrule 3.10
Case management forms and recordsrule 3.11

The scope of this Part

3.1.  This Part applies 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.

[Note. Rules that apply to procedure in the Court of Appeal are in Parts 65 to 73 of these Rules.]

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.  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.

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 an individual responsible for progressing that case; and

(b)tell other parties and the court who he is and how to contact him.

(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 he is and how to contact him.

(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 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 will be unavailable, appoint a substitute to fulfil his 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 3.10.

The court may make a costs order under—

(a)section 19 of the Prosecution of Offences Act 1985 (34), 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 (35), 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 (36), where the court decides that there has been serious misconduct by a person who is not a party.

Under some other legislation, including Parts 33, 34 and 35 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 (37) and section 20(3) of the Criminal Procedure and Investigations Act 1996 (38) (advance disclosure of expert evidence);

(b)section 11(5) of the Criminal Procedure and Investigations Act 1996 (39) (faults in disclosure by accused);

(c)section 132(5) of the Criminal Justice Act 2003 (40) (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 his absence; or

(c)circumstances have changed.

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

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

(b)give as much notice to the other parties as the nature and urgency of his 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 he doubts the condition in paragraph (1)(a) is satisfied.

Case preparation and progression

3.8.—(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 a trial in the Crown Court, the court must conduct a plea and case management hearing unless the circumstances make that unnecessary.

(4) In order to prepare for the trial, the court must take every reasonable step to encourage and to facilitate the attendance of witnesses when they are needed.

Readiness for trial or appeal

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

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

(a)comply with directions given by the court;

(b)take every reasonable step to make sure his 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

3.10.  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 and 3.8.]

Case management forms and records

3.11.—(1) The case management forms set out in the Practice Direction must be used, and where there is no form then no specific formality is required.

(2) The court must make available to the parties a record of directions given.

(3) Where a person is entitled or required to attend a hearing, the court officer must give as much notice as reasonably practicable to―

(a)that person; and

(b)that person’s custodian (if any).

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

Criminal Procedure Rules

Rules 10.4 and 27.4: reminders of right to object to written evidence being read at trial

Part 13: dismissal of charges transferred or sent to the Crown Court

Part 14: the indictment

Part 15: preparatory hearings in the Crown Court

Part 21: initial details of the prosecution case

Part 22: disclosure

Parts 27 – 36: the rules that deal with evidence

Part 37: trial and sentence in a magistrates’ court

Part 39: trial on indictment

Regulations

The Prosecution of Offences (Custody Time Limits) Regulations 1987 (41)

The Criminal Justice Act 1987 (Notice of Transfer) Regulations 1988 (42)

The Criminal Justice Act 1991 (Notice of Transfer) Regulations 1992 (43)

The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (44)

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

Provisions of Acts of Parliament

Sections 5, 10 and 18, Magistrates’ Courts Act 1980 (46): powers to adjourn hearings

Sections 128 and 129, Magistrates’ Courts Act 1980 (47): remand in custody by magistrates’ courts

Part 1, Criminal Procedure and Investigations Act 1996 (48): disclosure

Schedule 2, Criminal Procedure and Investigations Act 1996 (49): use of witness statements at trial

Section 2, Administration of Justice (Miscellaneous Provisions) Act 1933 (50): procedural conditions for trial in the Crown Court

Section 6, Magistrates’ Courts Act 1980 (51): committal for trial

Section 4, Criminal Justice Act 1987 (52); section 53, Criminal Justice Act 1991 (53); sections 51 and 51A, Crime and Disorder Act 1998 (54): other procedures by which a case reaches the Crown Court

Section 7, Criminal Justice Act 1987 (55); Parts III and IV, Criminal Procedure and Investigations Act 1996: pre-trial and preparatory hearings in the Crown Court

Section 8A, Magistrates’ Courts Act 1980 (56)

Section 9, Criminal Justice Act 1967 (57): proof by written witness statement.]

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
Date of servicerule 4.10
Proof of servicerule 4.11
Court’s power to give directions about servicerule 4.12

When this Part applies

4.1.  The rules in this Part apply to the service of every document in a case to which these Rules apply, subject to any special rules in other legislation (including other Parts of these Rules) or in the Practice Direction.

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 rule 4.7), 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 will 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 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.

[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 (58).]

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 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.

[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 (59) (service of summons, etc. in Scotland and Northern Ireland);

(b)section 1139(4) of the Companies Act 2006 (60) (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 (61) (service of summons, etc. outside the United Kingdom) and rules 32.1 and 32.2; 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 representative has given a DX box number.

(2) A document may be served by—

(a)addressing it to that person or 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

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

(b)the person to be served is legally represented in the case and the representative has given an electronic address.

(2) A document may be served by transmitting it by electronic means to that person or representative, as appropriate, at that address.

(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) The documents listed in paragraph (2) may be served—

(a)on an individual, only under rule 4.3(1)(a) (handing over) or rule 4.4(1) and (2)(a) (leaving or posting); and

(b)on a corporation, only under rule 4.3(1)(b) (handing over) or rule 4.4(1) and (2)(b) (leaving or posting).

(2) Those documents are—

(a)a summons, requisition or witness summons;

(b)notice of an order under section 25 of the Road Traffic Offenders Act 1988(62);

(c)a notice of registration under section 71(6) of that Act(63);

(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(64);

(e)notice under section 86 of that Act(65) of a revised date to attend a means inquiry;

(f)any notice or document served under Part 19 (Bail and custody time limits);

(g)notice under rule 37.15(a) of when and where an adjourned hearing will resume;

(h)notice under rule 42.5(3) of an application to vary or discharge a compensation order;

(i)notice under rule 42.10(2)(c) of the location of the sentencing or enforcing court;

(j)a collection order, or notice requiring payment, served under rule 52.2(a).

(3) An application or written statement, and notice, under rule 62.9 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).

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.

Date of service

4.10.—(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 transmitted by electronic means, on the next business day after it was transmitted; 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 court computer system 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

4.11.  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

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

(a)served under rule 4.3 or rule 4.8; or

(b)transmitted 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
Section 1: forms
Formsrule 5.1
Forms in Welshrule 5.2
Signature of formsrule 5.3
Section 2: 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 a caserule 5.8
Supply of written certificate or extract from recordsrule 5.9

SECTION 1: FORMS

Forms

5.1.  The forms set out in the Practice Direction and in the Criminal Costs Practice Direction shall be used as appropriate in connection with the rules to which they apply.

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 (66) provides for the use of an electronic signature in an electronic communication.]

SECTION 2: 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 licence;

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

(l)the identity of—

(i)the prosecutor,

(ii)the defendant,

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

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

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

(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 (67).

Requirements to record the court’s reasons for its decision are contained in: section 5 of the Bail Act 1976 (68); section 47(1) of the Road Traffic Offenders Act 1988 (69); sections 20, 33A and 33BB of the Youth Justice and Criminal Evidence Act 1999 (70); section 174 of the Criminal Justice Act 2003 (71); 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 (72).

In a case for which the amendments made by Schedule 3 to the Criminal Justice Act 2003 have come into force, section 20 of the Magistrates’ Courts Act 1980 (73) 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 licence are contained in sections 57, 57A and 71 of the Road Traffic Offenders Act 1988 (74).]

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 65 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 (75).]

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 63 (Appeal to the Crown Court) and Part 65 (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 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).

(2) Such a party 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—

(a)a copy of any document served by, or on, that party (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 in the first place,

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

(iii)information about the outcome of the case.

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

Supply to the public, including reporters, of information about a case

5.8.—(1) This rule applies where a member of the public, including a reporter, wants information about a case from the court officer.

(2) Such a person 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 will 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 will—

(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.

[Note. The supply of information about a case is affected by

(a)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;

(b)the Rehabilitation of Offenders Act 1974 (76) (section 5 of the Act (77) lists sentences and rehabilitation periods);

(c)section 18 of the Criminal Procedure and Investigations Act 1996 (78);

(d)the Sexual Offences (Protected Material) Act 1997 (79);

(e)the Data Protection Act 1998 (80);

(f)section 20 of the Access to Justice Act 1999 (81); and

(g)reporting restrictions, rules about which are contained in Part 16 (Reporting, etc. restrictions).]

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 (82), 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 (83), 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 (84).]

PART 6INVESTIGATION ORDERS

Contents of this Part
Section 1: understanding and applying this Part
When this Part appliesrule 6.1
Meaning of ‘court’, ‘applicant’ and ‘respondent’rule 6.2
Section 2: general rules
Exercise of court’s powersrule 6.3
Court’s power to vary requirements under this Partrule 6.4
Documents served on the court officerrule 6.5
Section 3: orders under the Terrorism Act 2000
Application for an order under the Terrorism Act 2000rule 6.6
Content of application for a production etc. orderrule 6.7
Content of application for an explanation orderrule 6.8
Content of application for a customer information orderrule 6.9
Content of application for an account monitoring orderrule 6.10
Application to vary or discharge an orderrule 6.11
Application containing information withheld from
  a respondent or other personrule 6.12
Application to punish for contempt of courtrule 6.13
Section 4: orders under the Proceeds of Crime Act 2002
Application for an order under the Proceeds of Crime Act 2002rule 6.14
Content of application for a production orderrule 6.15
Content of application for an order to grant entryrule 6.16
Content of application for a disclosure orderrule 6.17
Content of application for a customer information orderrule 6.18
Content of application for an account monitoring orderrule 6.19
Application to vary or discharge an orderrule 6.20
Application containing information withheld from
  a respondent or other personrule 6.21
Application to punish for contempt of courtrule 6.22
Section 5: orders under the Coroners and Justice Act 2009
Exercise of court’s powersrule 6.23
Application for an investigation anonymity orderrule 6.24
Application to discharge an investigation anonymity orderrule 6.25
Appealrule 6.26
Section 6: orders under the Regulation of Investigatory Powers Act 2000
Application for approval for authorisation or noticerule 6.27
Exercise of court’s power to quash an authorisation or noticerule 6.28

SECTION 1: UNDERSTANDING AND APPLYING THIS PART

When this Part applies

6.1.—(1) Sections 2 and 3 of this Part apply where, for the purposes of a terrorist investigation—

(a)a Circuit judge can make, vary or discharge—

(i)an order for the production of, or for giving access to, material, or for a statement of its location, under paragraphs 5 and 10 of Schedule 5 to the Terrorism Act 2000(85),

(ii)an explanation order, under paragraphs 10 and 13 of Schedule 5 to the 2000 Act(86),

(iii)a customer information order, under paragraphs 1 and 4 of Schedule 6 to the 2000 Act(87);

(b)a Circuit judge can make, and the Crown Court can vary or discharge, an account monitoring order, under paragraphs 2 and 4 of Schedule 6A to the 2000 Act(88).

(2) Sections 2 and 4 of this Part apply where, for the purposes of an investigation for which Part 8 of the Proceeds of Crime Act 2002 provides, a Crown Court judge can make, and the Crown Court can vary or discharge—

(a)a production order, under sections 345 and 351 of the 2002 Act(89);

(b)an order to grant entry, under sections 347 and 351 of the 2002 Act;

(c)a disclosure order, under sections 357 and 362 of the 2002 Act(90);

(d)a customer information order, under sections 363 and 369 of the 2002 Act(91);

(e)an account monitoring order, under sections 370 and 375 of the 2002 Act(92).

(3) Rule 6.5 and Section 5 of this Part apply where—

(a)a justice of the peace can make or discharge an investigation anonymity order, under sections 76 and 80(1) of the Coroners and Justice Act 2009(93);

(b)a Crown Court judge can determine an appeal against—

(i)a refusal of such an order, under section 79 of the 2009 Act,

(ii)a decision on an application to discharge such an order, under section 80(6) of the 2009 Act.

(4) Sections 2 and 6 of this Part apply where a justice of the peace can make an order approving—

(a)the grant or renewal of an authorisation, or the giving or renewal of a notice, under section 23A of the Regulation of Investigatory Powers Act 2000(94);

(b)the grant or renewal of an authorisation under section 32A of the 2000 Act(95).

[Note. In outline, the orders to which these rules apply are—

(a)for the purposes of a terrorist investigation under the Terrorism Act 2000—

(i)an order requiring a person to produce, give access to, or state the location of material,

(ii)an explanation order, requiring a person to explain material obtained under a production, etc. order,

(iii)a customer information order, requiring a financial institution to provide information about an account holder,

(iv)an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;

(b)for the purposes of an investigation under Part 8 of the Proceeds of Crime Act 2002—

(i)a production order, requiring a person to produce or give access to material,

(ii)an order to grant entry, requiring a person to allow entry to premises so that a production order can be enforced,

(iii)a disclosure order, requiring a person to provide information or documents, or to answer questions,

(iv)a customer information order, requiring a financial institution to provide information about an account holder,

(v)an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;

(c)under the Coroners and Justice Act 2009, an investigation anonymity order, prohibiting the disclosure of information that identifies, or might identify, a specified person as someone who is, or was, willing to assist the investigation of an offence of murder or manslaughter caused by a gun or knife;

(d)under the Regulation of Investigatory Powers Act 2000, an order approving a local authority officer’s authorisation for the obtaining of information about the use of postal or telecommunications services, or for the use of surveillance or of a ‘covert human intelligence source’.

For all the relevant terms under which these orders can be made, see the provisions listed in rule 6.1.

By section 341 of the Proceeds of Crime Act 2002 (96), an investigation under Part 8 of the Act may be—

(a)an investigation into whether a person has benefited from criminal conduct, or the extent or whereabouts of such benefit (‘a confiscation investigation’);

(b)an investigation into whether a person has committed a money laundering offence (‘a money laundering investigation’);

(c)an investigation into whether property is recoverable property or associated property (as defined by section 316 of the 2002 Act (97)), or into who holds the property or its extent or whereabouts (‘a civil recovery investigation’);

(d)an investigation into the derivation of cash detained under the 2002 Act, or into whether such cash is intended to be used in unlawful conduct (‘a detained cash investigation’);

(e)an investigation for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs, etc.) into whether a person is a qualifying offender or has obtained exploitation proceeds from a relevant offence, or into the value of any benefits derived by such a person from such an offence or the amount available (‘an exploitation proceeds investigation’).

When the relevant provisions of the Courts Act 2003 come into force, a District Judge (Magistrates’ Courts) will have the same powers as a Circuit judge under the Terrorism Act 2000.

Under section 8 of the Senior Courts Act 1981 (98), a High Court judge, a Circuit judge, a Recorder, a qualifying judge advocate and a District Judge (Magistrates’ Courts) each may act as a Crown Court judge.

Under section 343 of the Proceeds of Crime Act 2002 (99)

(a)any Crown Court judge may make an order to which Section 4 of this Part applies for the purposes of a confiscation investigation or a money laundering investigation;

(b)only a High Court judge may make such an order for the purposes of a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation (and these rules do not apply to an application to such a judge in such a case).

As well as governing procedure on an application to the Crown Court, under the following provisions rules may govern the procedure on an application to an individual judge—

(a)paragraph 10 of Schedule 5, paragraph 4 of Schedule 6 and paragraph 5 of Schedule 6A to the Terrorism Act 2000; and

(b)sections 351, 362, 369 and 375 of the Proceeds of Crime Act 2002.

Under the Terrorism Act 2000 and under the Proceeds of Crime Act 2002, in some circumstances an individual judge can issue a warrant to search for and seize material. Applications for such warrants are not subject to these rules.]

Meaning of ‘court’, ‘applicant’ and ‘respondent’

6.2.  In this Part—

(a)a reference to the ‘court’ includes a reference to any justice of the peace or judge who can exercise a power to which this Part applies;

(b)‘applicant’ means a person who, or an authority which, can apply for an order to which this Part applies; and

(c)‘respondent’ means the person (if any) against whom such an order is sought or made.

SECTION 2: GENERAL RULES

Exercise of court’s powers

6.3.—(1) Subject to paragraphs (2) and (3), the court may determine an application for an order, or to vary or discharge an order—

(a)at a hearing (which will be in private unless the court otherwise directs), or without a hearing; and

(b)in the absence of—

(i)the applicant,

(ii)the respondent (if any),

(iii)any other person affected by the order.

(2) The court must not determine such an application in the applicant’s absence if—

(a)the applicant asks for a hearing; or

(b)it appears to the court that—

(i)the proposed order may infringe legal privilege, within the meaning of section 10 of the Police and Criminal Evidence Act 1984(100) or of section 348 or 361 of the Proceeds of Crime Act 2002(101),

(ii)the proposed order may require the production of excluded material, within the meaning of section 11 of the 1984 Act, or

(iii)for any other reason the application is so complex or serious as to require the court to hear the applicant.

(3) The court must not determine such an application in the absence of any respondent or other person affected, unless—

(a)the absentee has had at least 2 business days in which to make representations; or

(b)the court is satisfied that—

(i)the applicant cannot identify or contact the absentee,

(ii)it would prejudice the investigation if the absentee were present,

(iii)it would prejudice the investigation to adjourn or postpone the application so as to allow the absentee to attend, or

(iv)the absentee has waived the opportunity to attend.

(4) The court must not make, vary or discharge an order unless the applicant states, in writing or orally, that to the best of the applicant’s knowledge and belief—

(a)the application discloses all the information that is material to what the court must decide; and

(b)the content of the application is true.

(5) Where the statement required by paragraph (4) is made orally—

(a)the statement must be on oath or affirmation, unless the court otherwise directs; and

(b)the court must arrange for a record of the making of the statement.

Court’s power to vary requirements under this Part

6.4.—(1) The court may—

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

(b)dispense with a requirement for service under this Part (even after service was required); and

(c)consider an application made orally instead of in writing.

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

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

(b)explain the delay.

Documents served on the court officer

6.5.—(1) Unless the court otherwise directs, the court officer may—

(a)keep a written application; 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.

(2) Where the court makes an order when the court office is closed, the applicant must, not more than 72 hours later, serve on the court officer—

(a)a copy of the order; and

(b)any written material that was submitted to the court.

SECTION 3: ORDERS UNDER THE TERRORISM ACT 2000

[Note. The rules in Section 2 (general rules) also apply.]

Application for an order under the Terrorism Act 2000

6.6.—(1) This rule applies where an applicant wants the court to make one of the orders listed in rule 6.1(1).

(2) The applicant must—

(a)apply in writing;

(b)serve the application on—

(i)the court officer, and

(ii)the respondent (unless the court otherwise directs);

(c)identify the respondent;

(d)give the information required by whichever of rules 6.7 to 6.10 applies; and

(e)serve any order made on the respondent.

[Note. See also rules 6.3 and 6.4, under which the court may—

(a)exercise its powers in the parties’ absence;

(b)dispense with a requirement for service; and

(c)consider an application made orally.

Under rule 6.12, an applicant may withhold information from material that is served on a respondent.]

Content of application for a production etc. order

6.7.  As well as complying with rule 6.6, an applicant who wants the court to make an order for the production of, or access to, material, or for a statement of its location, must—

(a)describe that material;

(b)explain why the applicant thinks the material is—

(i)in the respondent’s possession, custody or power, or

(ii)likely to be so within 28 days of the order;

(c)explain how the material constitutes or contains excluded material or special procedure material;

(d)confirm that none of the material is expected to be subject to legal privilege;

(e)explain why the material is likely to be of substantial value to the investigation;

(f)explain why it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—

(i)the benefit likely to accrue to the investigation if it is obtained, and

(ii)the circumstances in which the respondent has the material, or is expected to have it; and

(g)propose—

(i)the terms of the order, and

(ii)the period within which it should take effect.

[Note. See paragraphs 5 to 9 of Schedule 5 to the Terrorism Act 2000. The applicant for a production, etc. order must be a constable.

Under paragraph 4 of Schedule 5 to the 2000 Act, ‘legal privilege’, ‘excluded material’ and ‘special procedure material’ mean the same as under sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984.

The period within which an order takes effect must be specified in the order and, unless the court otherwise directs, must be—

(a)where the respondent already has the material, 7 days from the date of the order; or

(b)where the respondent is likely to have the material within 28 days, 7 days from the date the respondent notifies the applicant of its receipt.]

Content of application for an explanation order

6.8.  As well as complying with rule 6.6, an applicant who wants the court to make an explanation order must—

(a)identify the material that the applicant wants the respondent to explain;

(b)confirm that the explanation is not expected to infringe legal privilege; and

(c)propose—

(i)the terms of the order, and

(ii)the period within which it should take effect, if 7 days from the date of the order would not be appropriate.

[Note. See paragraph 13 of Schedule 5 to the Terrorism Act 2000. The applicant for an explanation order must be a constable.

An explanation order can require a lawyer to provide a client’s name and address.]

Content of application for a customer information order

6.9.  As well as complying with rule 6.6, an applicant who wants the court to make a customer information order must—

(a)explain why it is desirable for the purposes of the investigation to trace property said to be terrorist property within the meaning of the Terrorism Act 2000;

(b)explain why the order will enhance the effectiveness of the investigation; and

(c)propose the terms of the order.

[Note. See Schedule 6 to the Terrorism Act 2000. The applicant for a customer information order must be a police officer of at least the rank of superintendent.

‘Customer information’ is defined by paragraph 7 of Schedule 6 to the 2000 Act. ‘Terrorist property’ is defined by section 14 of the Act.]

Content of application for an account monitoring order

6.10.  As well as complying with rule 6.6, an applicant who wants the court to make an account monitoring order must—

(a)specify—

(i)the information sought,

(ii)the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and

(iii)where, when and in what manner the applicant wants the respondent to provide that information;

(b)explain why it is desirable for the purposes of the investigation to trace property said to be terrorist property within the meaning of the Terrorism Act 2000;

(c)explain why the order will enhance the effectiveness of the investigation; and

(d)propose the terms of the order.

[Note. See Schedule 6A to the Terrorism Act 2000. The applicant for an account monitoring order must be a police officer.

‘Terrorist property’ is defined by section 14 of the Act.]

Application to vary or discharge an order

6.11.—(1) This rule applies where one of the following wants the court to vary or discharge an order listed in rule 6.1(1)—

(a)an applicant;

(b)the respondent; or

(c)a person affected by the order.

(2) That applicant, respondent or person affected must—

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

(b)serve the application on—

(i)the court officer, and

(ii)the respondent, applicant, or any person known to be affected, as applicable;

(c)explain why it is appropriate for the order to be varied or discharged;

(d)propose the terms of any variation; and

(e)ask for a hearing, if one is wanted, and explain why it is needed.

Application containing information withheld from a respondent or other person

6.12.—(1) This rule applies where—

(a)an applicant serves on a respondent or other person an application for one of the orders listed in rule 6.1(1), or for the variation or discharge of such an order; and

(b)the application includes information that the applicant thinks ought not be revealed to that recipient.

(2) The applicant must—

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

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

(c)in that other part, explain why the applicant has withheld it.

(3) A hearing of an application to which this rule applies may take place, wholly or in part, in the absence of the respondent and any other person.

(4) At a 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 applicant and then by the respondent and any other person, in the presence of them all, and then

(ii)further representations by the applicant, in the others’ absence; but

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

Application to punish for contempt of court

6.13.—(1) This rule applies where a person is accused of disobeying—

(a)a production etc. order made under paragraph 5 of Schedule 5 to the Terrorism Act 2000;

(b)an explanation order made under paragraph 13 of that Schedule; or

(c)an account monitoring order made under paragraph 2 of Schedule 6A to that Act.

(2) An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 62 (Contempt of court).

[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See paragraphs 10(1) and 13(5) of Schedule 5, and paragraph 6(1) of Schedule 6A, to the Terrorism Act 2000, and section 45 of the Senior Courts Act 1981 (102).

Disobedience to an explanation order or to a customer information order is an offence: see paragraph 14 of Schedule 5, and paragraph 1(3) of Schedule 6, to the 2000 Act.]

SECTION 4: ORDERS UNDER THE PROCEEDS OF CRIME ACT 2002

[Note. The rules in Section 2 (general rules) also apply.]

Application for an order under the Proceeds of Crime Act 2002

6.14.—(1) This rule applies where an applicant wants the court to make one of the orders listed in rule 6.1(2).

(2) The applicant must—

(a)apply in writing;

(b)serve the application on—

(i)the court officer, and

(ii)the respondent (unless the court otherwise directs);

(c)identify—

(i)the respondent, and

(ii)the person or property the subject of the investigation;

(d)explain why the applicant thinks the person under investigation has—

(i)benefited from criminal conduct, in the case of a confiscation investigation, or

(ii)committed a money laundering offence, in the case of a money laundering investigation;

(e)give the additional information required by whichever of rules 6.15 to 6.19 applies; and

(f)serve any order made on each respondent.

[Note. See also rules 6.3 and 6.4, under which the court may—

(a)exercise its powers in the parties’ absence;

(b)dispense with a requirement for service; and

(c)consider an application made orally.

Under rule 6.21, an applicant may withhold information from material that is served on a respondent.

See also the code of practice for those exercising functions as officers and investigators issued under section 377 of the 2002 Act (103), and the code of practice for prosecutors and others issued under section 377A of that Act (104).]

Content of application for a production order

6.15.  As well as complying with rule 6.14, an applicant who wants the court to make an order for the production of, or access to, material, must—

(a)describe that material;

(b)explain why the applicant thinks the material is in the respondent’s possession or control;

(c)confirm that none of the material is—

(i)expected to be subject to legal privilege, or

(ii)excluded material;

(d)explain why the material is likely to be of substantial value to the investigation;

(e)explain why it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—

(i)the benefit likely to accrue to the investigation if it is obtained, and

(ii)the circumstances in which the respondent has the material; and

(f)propose—

(i)the terms of the order, and

(ii)the period within which it should take effect, if 7 days from the date of the order would not be appropriate.

[Note. See sections 345 to 350 of the Proceeds of Crime Act 2002 (105). Under those provisions—

(a)‘excluded material’ means the same as under section 11 of the Police and Criminal Evidence Act 1984; and

(b)‘legal privilege’ is defined by section 348 of the 2002 Act.

A Crown Court judge may make a production order for the purposes of a confiscation investigation or a money laundering investigation.

The applicant for a production order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act (106).]

Content of application for an order to grant entry

6.16.  An applicant who wants the court to make an order to grant entry in aid of a production order must—

(a)specify the premises to which entry is sought;

(b)explain why the order is needed; and

(c)propose the terms of the order.

[Note. See section 347 of the Proceeds of Crime Act 2002. The applicant for an order to grant entry must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act.]

Content of application for a disclosure order

6.17.  As well as complying with rule 6.14, an applicant who wants the court to make a disclosure order must—

(a)describe in general terms the information that the applicant wants the respondent to provide;

(b)confirm that none of the information is—

(i)expected to be subject to legal privilege, or

(ii)excluded material;

(c)explain why the information is likely to be of substantial value to the investigation;

(d)explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

(e)propose the terms of the order.

[Note. See sections 357, 358 and 361 of the Proceeds of Crime Act 2002 (107).

A Crown Court judge may make a disclosure order for the purposes of a confiscation investigation only.

The applicant for a disclosure order must be a ‘relevant authority’ as defined by section 357(7). In relation to a confiscation investigation, under section 357(2A) the applicant must have been asked to apply by an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act.

A disclosure order can require a lawyer to provide a client’s name and address.]

Content of application for a customer information order

6.18.  As well as complying with rule 6.14, an applicant who wants the court to make a customer information order must—

(a)explain why customer information about the person under investigation is likely to be of substantial value to that investigation;

(b)explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

(c)propose the terms of the order.

[Note. See sections 363, 364, 365 and 368 of the Proceeds of Crime Act 2002 (108).

A Crown Court judge may make a customer information order for the purposes of a confiscation investigation or a money laundering investigation.

The applicant for a customer information order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act.

‘Customer information’ is defined by section 364 of the 2002 Act.]

Content of application for an account monitoring order

6.19.  As well as complying with rule 6.14, an applicant who wants the court to make an account monitoring order for the provision of account information must—

(a)specify—

(i)the information sought,

(ii)the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and

(iii)when and in what manner the applicant wants the respondent to provide that information;

(b)explain why the information is likely to be of substantial value to the investigation;

(c)explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

(d)propose the terms of the order.

[Note. See sections 370, 371 and 374 of the Proceeds of Crime Act 2002 (109).

A Crown Court judge may make an account monitoring order for the purposes of a confiscation investigation or a money laundering investigation.

The applicant for an account monitoring order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act.

‘Account information’ is defined by section 370 of the 2002 Act.]

Application to vary or discharge an order

6.20.—(1) This rule applies where one of the following wants the court to vary or discharge an order listed in rule 6.1(2)—

(a)an applicant;

(b)the respondent; or

(c)a person affected by the order.

(2) That applicant, respondent or person affected must—

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

(b)serve the application on—

(i)the court officer, and

(ii)the respondent, applicant, or any person known to be affected, as applicable;

(c)explain why it is appropriate for the order to be varied or discharged;

(d)propose the terms of any variation; and

(e)ask for a hearing, if one is wanted, and explain why it is needed.

Application containing information withheld from a respondent or other person

6.21.—(1) This rule applies where—

(a)an applicant serves on a respondent or other person an application for one of the orders listed in rule 6.1(2), or for the variation or discharge of such an order; and

(b)the application includes information that the applicant thinks ought not be revealed to that recipient.

(2) The applicant must—

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

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

(c)in that other part, explain why the applicant has withheld it.

(3) A hearing of an application to which this rule applies may take place, wholly or in part, in the absence of the respondent and any other person.

(4) At a 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 applicant and then by the respondent and any other person, in the presence of them all, and then

(ii)further representations by the applicant, in the others’ absence; but

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

Application to punish for contempt of court

6.22.—(1) This rule applies where a person is accused of disobeying—

(a)a production order made under section 345 of the Proceeds of Crime Act 2002(110); or

(b)an account monitoring order made under section 370 of that Act.

(2) An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 62 (Contempt of court).

[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See sections 351(7) and 375(6) of the Proceeds of Crime Act 2002, and section 45 of the Senior Courts Act 1981.

Disobedience to a disclosure order or to a customer information order is an offence: see sections 359 and 366 of the 2002 Act.

Under section 342 of the 2002 Act, subject to the exceptions for which that section provides it is an offence to make a disclosure likely to prejudice an investigation or to interfere with documents relevant to it.]

SECTION 5: ORDERS UNDER THE CORONERS AND JUSTICE ACT 2009

[Note. Rule 6.5 (custody of documents) also applies.]

Exercise of court’s powers

6.23.—(1) The court may determine an application for an investigation anonymity order, and any appeal against the refusal of such an order—

(a)at a hearing (which will be in private unless the court otherwise directs); or

(b)without a hearing.

(2) The court must determine an application to discharge an investigation anonymity order, and any appeal against the decision on such an application—

(a)at a hearing (which will be in private unless the court otherwise directs); and

(b)in the presence of the person specified in the order, unless—

(i)that person applied for the discharge of the order,

(ii)that person has had an opportunity to make representations, or

(iii)the court is satisfied that it is not reasonably practicable to communicate with that person.

(3) The court may consider an application or an appeal made orally instead of in writing.

Application for an investigation anonymity order

6.24.—(1) This rule applies where an applicant wants a magistrates’ court to make an investigation anonymity order.

(2) The applicant must—

(a)apply in writing;

(b)serve the application on the court officer;

(c)identify the person to be specified in the order, unless—

(i)the applicant wants the court to determine the application at a hearing, or

(ii)the court otherwise directs;

(d)explain how the proposed order meets the conditions prescribed by section 78 of the Coroners and Justice Act 2009(111);

(e)say if the applicant intends to appeal should the court refuse the order;

(f)attach any material on which the applicant relies; and

(g)propose the terms of the order.

(3) At any hearing of the application, the applicant must—

(a)identify to the court the person to be specified in the order, unless—

(i)the applicant has done so already, or

(ii)the court otherwise directs; and

(b)unless the applicant has done so already, inform the court if the applicant intends to appeal should the court refuse the order.

[Note. See section 77 of the Coroners and Justice Act 2009.]

Application to discharge an investigation anonymity order

6.25.—(1) This rule applies where one of the following wants a magistrates’ court to discharge an investigation anonymity order—

(a)an applicant; or

(b)the person specified in the order.

(2) That applicant or the specified person must—

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

(b)serve the application on—

(i)the court officer, and as applicable

(ii)the applicant for the order, and

(iii)the specified person;

(c)explain—

(i)what material circumstances have changed since the order was made, or since any previous application was made to discharge it, and

(ii)why it is appropriate for the order to be discharged; and

(d)attach—

(i)a copy of the order, and

(ii)any material on which the applicant relies.

(3) A party must inform the court if that party intends to appeal should the court discharge the order.

[Note. See section 80 of the Coroners and Justice Act 2009.]

Appeal

6.26.—(1) This rule applies where one of the following (‘the appellant’) wants to appeal to the Crown Court—

(a)the applicant for an investigation anonymity order, where a magistrates’ court has refused to make the order;

(b)a party to an application to discharge such an order, where a magistrates’ court has decided that application.

(2) The appellant must—

(a)serve on the Crown Court officer a copy of the application to the magistrates’ court; and

(b)where the appeal concerns a discharge decision, notify each other party,

not more that 21 days after the decision against which the appellant wants to appeal.

(3) The Crown Court must hear the appeal without justices of the peace.

[Note. See sections 79 and 80(6) of the Coroners and Justice Act 2009, and section 74 of the Senior Courts Act 1981 (112).]

SECTION 6: ORDERS UNDER THE REGULATION OF INVESTIGATORY POWERS ACT 2000

[Note. The rules in Section 2 (general rules) also apply.]

Application for approval for authorisation or notice

6.27.—(1) This rule applies where an applicant wants a magistrates’ court to make an order approving—

(a)under sections 23A and 23B of the Regulation of Investigatory Powers Act 2000(113)—

(i)an authorisation to obtain or disclose communications data, under section 22(3) of the 2000 Act(114), or

(ii)a notice that requires a postal or telecommunications operator if need be to obtain, and in any case to disclose, communications data, under section 22(4) of the 2000 Act;

(b)under sections 32A and 32B of the Regulation of Investigatory Powers Act 2000(115), an authorisation for—

(i)the carrying out of directed surveillance, under section 28 of the 2000 Act, or

(ii)the conduct or use of a covert human intelligence source, under section 29 of the 2000 Act(116).

(2) The applicant must—

(a)apply in writing and serve the application on the court officer;

(b)attach the authorisation or notice which the applicant wants the court to approve;

(c)attach such other material (if any) on which the applicant relies to satisfy the court—

(i)as required by section 23A(3) and (4) of the 2000 Act, in relation to communications data,

(ii)as required by section 32A(3) and (4) of the 2000 Act, in relation to directed surveillance, or

(iii)as required by section 32A(5) and (6), and, if relevant, section 43(6A), of the 2000 Act(117), in relation to a covert human intelligence source; and

(d)propose the terms of the order.

[Note. See also rules 6.3 and 6.4, under which the court may—

(a)exercise its powers in the parties’ absence; and

(b)consider an application made orally.

Under section 23A(3) to (5) of the Regulation of Investigatory Powers Act 2000, on an application for an order approving an authorisation or notice concerning communications data (as defined in section 21 of the Act (118)), the court must be satisfied that

(a)the person who granted or renewed the authorisation, or who gave or renewed the notice, was entitled to do so;

(b)the grant, giving or renewal met any prescribed restrictions or conditions;

(c)at the time the authorisation or notice was granted, given or renewed, as the case may be, there were reasonable grounds for believing that to obtain or disclose the data described in the authorisation or notice was—

(i)necessary, for the purpose of preventing or detecting crime or preventing disorder, and

(ii)proportionate to what was sought to be achieved by doing so; and

(d)there remain reasonable grounds for believing those things, at the time the court considers the application.

The Regulation of Investigatory Powers (Communications Data) Order 2010 (119) specifies the persons who are entitled to grant, give or renew an authorisation or notice concerning such data, and for what purpose each may do so.

Under section 32A(3) and (4) of the Regulation of Investigatory Powers Act 2000, on an application for an order approving an authorisation concerning directed surveillance (as defined in section 26 of the Act (120)), the court must be satisfied that—

(a)the person who granted the authorisation was entitled to do so;

(b)the grant met any prescribed restrictions or conditions;

(c)at the time the authorisation was granted there were reasonable grounds for believing that the surveillance described in the authorisation was—

(i)necessary, for the purpose of preventing or detecting crime or preventing disorder, and

(ii)proportionate to what was sought to be achieved by it; and

(d)there remain reasonable grounds for believing those things, at the time the court considers the application.

Under section 32A(5) and (6) of the Regulation of Investigatory Powers Act 2000, on an application for an order approving an authorisation of the conduct or use of a covert human intelligence source (as defined in section 26 of the Act), the court must be satisfied that—

(a)the person who granted the authorisation was entitled to do so;

(b)the grant met any prescribed restrictions or conditions;

(c)at the time the authorisation was granted there were reasonable grounds for believing that the conduct or use of a covert human intelligence source described in the authorisation was—

(i)necessary, for the purpose of preventing or detecting crime or preventing disorder, and

(ii)proportionate to what was sought to be achieved by it; and

(d)there remain reasonable grounds for believing those things, at the time the court considers the application.

Under section 43(6A) of the 2000 Act, on an application to approve the renewal of such an authorisation the court in addition must—

(a)be satisfied that, since the grant or latest renewal of the authorisation, a review has been carried out of the use made of the source, of the tasks given to him or her and of the information obtained; and

(b)consider the results of that review.

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (121) specifies the persons who are entitled to grant an authorisation concerning such surveillance or such a source, and for what purpose each may do so.

Under sections 23B(2) and 32B(2) of the 2000 Act, the applicant is not required to give notice of an application to any person to whom the authorisation or notice relates, or to such a person’s legal representatives.]

Exercise of court’s power to quash an authorisation or notice

6.28.—(1) This rule applies where, under section 23A or 32A of the Regulation of Investigatory Powers Act 2000, a magistrates’ court refuses to approve the grant, giving or renewal of an authorisation or notice.

(2) The court must not exercise its power to quash that authorisation or notice unless the applicant has had at least 2 business days from the date of the refusal in which to make representations.

[Note. See sections 23B(3) and 32B(3) of the Regulation of Investigatory Powers Act 2000.]

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(122);

(b)a public prosecutor—

(i)wants the court to issue a warrant under section 1 of the Magistrates’ Courts Act 1980, or

(ii)issues a written charge and requisition under section 29 of the Criminal Justice Act 2003(123); or

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

(2) In this Part, ‘public prosecutor’ means one of those public prosecutors listed in section 29 of the Criminal Justice Act 2003.

[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 public prosecutor listed in that section may issue a written charge alleging that someone has committed an offence, and a requisition requiring that person to attend court. Section 30 of that Act (124) contains other provisions about written charges and requisitions.

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 (125).]

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) A public 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)a public 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)a public 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 (126) and section 30(5) of the Criminal Justice Act 2003 (127).

Part 2 contains rules allowing someone with a prosecutor’s authority, on that 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 44 (Breach, revocation and amendment of community and other orders). Rule 44.2(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 a public 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 18 contains other rules about warrants.

Section 47 of the Magistrates’ Courts Act 1980 (128) 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 (129) allows, and in some cases requires, the court to summon the parent or guardian of a defendant under 18.]

PART 8DISCONTINUING A PROSECUTION

Contents of this Part
When this Part appliesrule 8.1
Discontinuing a caserule 8.2
Defendant’s notice to continuerule 8.3

When this Part applies

8.1.—(1) This Part applies where—

(a)the Director of Public Prosecutions, or the Director of Revenue and Customs Prosecutions, can discontinue a case in a magistrates’ court, under section 23 of the Prosecution of Offences Act 1985(130);

(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(131).

(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)commits or 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 36 of the Commissioners for Revenue and Customs Act 2005 (132), and under section 38 of the Serious Organised Crime and Police Act 2005 (133), the Director of Revenue and Customs Prosecutions has the same powers.

Under section 23 of the 1985 Act, the defendant has a right to require the proceedings to continue. See rule 8.3.

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 (134), may discontinue proceedings where the defendant was sent for trial in the Crown Court under section 51 of the Crime and Disorder Act 1998 (135). In such a case—

(a)the prosecutor must discontinue before a draft indictment has been served under rule 14.1; 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 76.4.]

Discontinuing a case

8.2.—(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

8.3.—(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 9ALLOCATION AND SENDING FOR TRIAL

Contents of this Part
Section 1: 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
Section 2: sending without allocation for Crown Court trial
Prosecutor’s notice requiring Crown Court trialrule 9.6
Sending for Crown Court trialrule 9.7
Section 3: 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
Section 4: Crown Court initial procedure after sending for trial
Service of prosecution evidencerule 9.15

SECTION 1: 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(136); and

(b)sections 50A to 52 of the Crime and Disorder Act 1998(137).

(2) Section 2 of this Part applies 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) Section 3 of this Part applies in a magistrates’ court where the court must allocate the case to a magistrates’ court or to the Crown Court for trial.

(4) Section 4 of this Part applies 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 (138). On the coming into force of Schedule 3 to the Criminal Justice Act 2003 (139)—

(a)section 51 of the 1998 Act will allow a magistrates’ court to send a wider range of offences for Crown Court trial;

(b)section 51A of that Act (140), and section 24A of the Magistrates’ Courts Act 1980 (141), will allow the court, in a wider range of circumstances, to send for Crown Court trial a defendant who is under 18 (in the place of committal for trial); and

(c)section 19 of the 1980 Act (142), as substituted by the 2003 Act, will require the court to allocate to a magistrates’ court or to the Crown Court for trial a case which could be tried in either court (again, in the place of committal for trial).

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, when Schedule 3 to the 2003 Act comes into force, be allocated to one or the other court for trial: see in particular sections 50A, 51 and 51A of the 1998 Act (143), as added and substituted by the 2003 Act);

(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 (144), as added and substituted by the 2003 Act);

(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 (145).]

Exercise of magistrates’ court’s powers

9.2.—(1) This rule applies to the exercise of the powers to which Sections 2 and 3 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 more than one offence alleged against the same defendant, it must deal with them 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 for Crown Court trial).

[Note. See sections 50A, 51, 51A and 52 of the Crime and Disorder Act 1998 (146) and sections 17A, 17B, 17C, 18, 23, 24A, 24B and 24C of the Magistrates’ Courts Act 1980 (147).

Under sections 57A to 57E of the 1998 Act (148), 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 (149).

Under section 52A of the 1998 Act (150), reporting restrictions apply to the proceedings to which Sections 2 and 3 apply.

Part 2 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, where it is in force, 51D of the Crime and Disorder Act 1998 (151).]

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 (152).]

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 21.2;

(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(153),

(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, where it is in force, 51D of the Crime and Disorder Act 1998 (154); and, where it is in force, section 20A of the Magistrates’ Courts Act 1980 (155).]

SECTION 2: 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 37 (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. This rule applies only in a case for which the amendments made by Schedule 3 to the Criminal Justice Act 2003 have come into force: see rule 2.1 (When the Rules apply).

Under section 51B of the Crime and Disorder Act 1998 (156), the Director of Public Prosecutions, the Director of the Serious Fraud Office, the Director of Revenue and Customs 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 (157), 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

(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;

(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; and

(c)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 section 51 and, where they are in force, sections 51A and 51E of the Crime and Disorder Act 1998 (158); and, where it is in force, section 24A of the Magistrates’ Courts Act 1980 (159).

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, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 2000 (160).

See also Part 16 (Reporting, etc. restrictions).]

SECTION 3: ALLOCATION FOR MAGISTRATES’ COURT OR CROWN COURT TRIAL

[Note. The rules in this Section apply only in a case for which the amendments made by Schedule 3 to the Criminal Justice Act 2003 have come into force: see rule 2.1 (When the Rules apply).]

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(161) 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 (162).

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 (163).

See also Part 16 (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 to an offence that can be tried only in a magistrates’ court; and

(b)in accordance with rule 37.10 (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(164).

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(165).]

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 37.10 (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(166).

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(167).

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(168).]

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 37 (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(169). 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 to an offence that can be tried only in a magistrates’ court; and

(b)in accordance with rule 37.10 (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(170).]

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(171) and section 51 of the Crime and Disorder 1998(172). See also rule 9.3 (matters to be specified on sending for trial).]

SECTION 4: 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(173). 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.]

PART 10COMMITTAL FOR TRIAL

Restrictions on reports of committal proceedingsrule 10.1
Committal for trial without consideration of the evidencerule 10.2
Consideration of evidence at committal proceedingsrule 10.3
Objection to committal statements being read at trialrule 10.4
Material to be sent to court of trialrule 10.5

[Note. On the coming into force of Schedule 3 to the Criminal Justice Act 2003(174), committal for trial is abolished and cases triable either way may be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998(175).]

Restrictions on reports of committal proceedings

10.1.—(1) Except in a case where evidence is, with the consent of the accused, to be tendered in his absence under section 4(4)(b) of the Magistrates’ Courts Act 1980(176) (absence caused by ill health), a magistrates’ court acting as examining justices shall before admitting any evidence explain to the accused the restrictions on reports of committal proceedings imposed by section 8 of that Act and inform him of his right to apply to the court for an order removing those restrictions.

(2) Where a magistrates’ court has made an order under section 8(2) of the 1980 Act(177) removing restrictions on the reports of committal proceedings, such order shall be entered in the register.

(3) Where the court adjourns any such proceedings to another day, the court shall, at the beginning of any adjourned hearing, state that the order has been made.

Committal for trial without consideration of the evidence

10.2.—(1) This rule applies to committal proceedings where the accused has a solicitor acting for him in the case and where the court has been informed that all the evidence falls within section 5A(2) of the Magistrates’ Courts Act 1980(178).

(2) A magistrates’ court inquiring into an offence in committal proceedings to which this rule applies shall cause the charge to be written down, if this has not already been done, and read to the accused and shall then ascertain whether he wishes to submit that there is insufficient evidence to put him on trial by jury for the offence with which he is charged.

(3) If the court is satisfied that the accused or, as the case may be, each of the accused does not wish to make such a submission as is referred to in paragraph (2) it shall, after receiving any written evidence falling within section 5A(3) of the 1980 Act, determine whether or not to commit the accused for trial without consideration of the evidence, and where it determines not to so commit the accused it shall proceed in accordance with rule 10.3.

Consideration of evidence at committal proceedings

10.3.—(1) This rule does not apply to committal proceedings where under section 6(2) of the Magistrates’ Courts Act of 1980(179) a magistrates’ court commits a person for trial without consideration of the evidence.

(2) A magistrates’ court inquiring into an offence as examining justices, having ascertained—

(a)that the accused has no legal representative acting for him in the case; or

(b)that the accused’s legal representative has requested the court to consider a submission that there is insufficient evidence to put the accused on trial by jury for the offence with which he is charged, as the case may be,

shall permit the prosecutor to make an opening address to the court, if he so wishes, before any evidence is tendered.

(3) After such opening address, if any, the court shall cause evidence to be tendered in accordance with sections 5B(4), 5C(4), 5D(5) and 5E(3) of the 1980 Act(180), that is to say by being read out aloud, except where the court otherwise directs or to the extent that it directs that an oral account be given of any of the evidence.

(4) The court may view any exhibits produced before the court and may take possession of them.

(5) After the evidence has been tendered the court shall hear any submission which the accused may wish to make as to whether there is sufficient evidence to put him on trial by jury for any indictable offence.

(6) The court shall permit the prosecutor to make a submission—

(a)in reply to any submission made by the accused in pursuance of paragraph (5); or

(b)where the accused has not made any such submission but the court is nevertheless minded not to commit him for trial.

(7) After hearing any submission made in pursuance of paragraph (5) or (6) the court shall, unless it decides not to commit the accused for trial, cause the charge to be written down, if this has not already been done, and, if the accused is not represented by counsel or a solicitor, shall read the charge to him and explain it in ordinary language.

Objection to committal statements being read at trial

10.4.—(1) This rule applies where—

(a)a written statement is admitted as evidence in committal proceedings;

(b)under Schedule 2 to the Criminal Procedure and Investigations Act 1996(181), the statement may be introduced in evidence at trial; and

(c)a party wants to object to that.

(2) Such a party must serve notice of objection—

(a)on each other party and on the Crown Court officer;

(b)not more than 14 days after the defendant is committed for trial.

(3) A prosecutor who introduces a written statement in committal proceedings must serve with it on the defendant a notice—

(a)of the right to object, and of the time limit; and

(b)that if the defendant does not object, the prosecutor may decide not to call the witness to give evidence in person at trial, but to rely on the written statement instead.

(4) The magistrates’ court that commits the defendant for trial must remind the defendant of that right to object.

(5) The Crown Court may extend the time limit under this rule, even after it has expired.

[Note. Under Schedule 2 to the Criminal Procedure and Investigations Act 1996, the written statement of a witness that has been admitted in evidence in committal proceedings may be introduced in evidence at trial, instead of the witness giving evidence in person, if—

(a)no party objects within the time prescribed by Criminal Procedure Rules, and

(b)the other conditions specified by that Schedule are met.]

Material to be sent to court of trial

10.5.—(1) As soon as practicable after the committal of any person for trial, and in any case within 4 business days from the date of the committal, the magistrates’ court officer shall, subject to the provisions of section 7 of the Prosecution of Offences Act 1985(182) (which relates to the sending of documents and things to the Director of Public Prosecutions), send to the Crown Court officer—

(a)the information, if it is in writing;

(b)(i)the evidence tendered in accordance with section 5A of the Magistrates’ Courts Act 1980 and, where any of that evidence consists of a copy of a deposition or documentary exhibit which is in the possession of the court, any such deposition or documentary exhibit, and

(ii)a certificate to the effect that that evidence was so tendered;

(c)any notification by the prosecutor under section 5D(2) of the 1980 Act;

(d)a copy of the record made in pursuance of section 5 of the Bail Act 1976(183) relating to the grant or withholding of bail in respect of the accused on the occasion of the committal;

(e)any recognizance entered into by any person as surety for the accused together with a statement of any enlargement thereof under section 129(4) of the 1980 Act;

(f)a list of the exhibits produced in evidence before the justices or treated as so produced;

(g)such of the exhibits referred to in paragraph (1)(f) as have been retained by the justices;

(h)the names and addresses of any interpreters engaged for the defendant for the purposes of the committal proceedings, together with any telephone numbers at which they can be readily contacted, and details of the languages or dialects in connection with which they have been so engaged;

(i)if the committal was under section 6(2) of the 1980 Act (committal for trial without consideration of the evidence), a statement to that effect;

(j)if the magistrates’ court has made an order under section 8(2) of the 1980 Act (removal of restrictions on reports of committal proceedings), a statement to that effect;

(k)the certificate of the examining justices as to the costs of the prosecution under the Costs in Criminal Cases (General) Regulations 1986(184);

(l)if any person under the age of 18 is concerned in the committal proceedings, a statement whether the magistrates’ court has given a direction under section 39 of the Children and Young Persons Act 1933(185) (prohibition of publication of certain matter in newspapers);

(m)a copy of any representation order previously made in the case;

(n)a copy of any application for a representation order previously made in the case which has been refused; and

(o)any documents relating to an appeal by the prosecution against the granting of bail.

(2) The period of 4 days specified in paragraph (1) may be extended in relation to any committal for so long as the Crown Court officer directs, having regard to the length of any document mentioned in that paragraph or any other relevant circumstances.

PART 11TRANSFER FOR TRIAL OF SERIOUS FRAUD CASES OR CASES INVOLVING CHILDREN

Contents of this Part
Interpretation of this Partrule 11.1
Transfer on bailrule 11.2
Notice where person removed to hospitalrule 11.3
Variation of arrangements for bailrule 11.4
Documents to be sent to the Crown Courtrule 11.5

Interpretation of this Part

11.1.—(1) In this Part, ‘notice of transfer’ means a notice referred to in section 4(1) of the Criminal Justice Act 1987(186) or section 53(1) of the Criminal Justice Act 1991(187).

(2) Where this Part requires a document to be given or sent, or a notice to be communicated in writing, it may, with the consent of the addressee, be sent by electronic communication.

(3) Electronic communication means a communication transmitted (whether from one person to another, from one device to another or from a person to a device or vice versa)—

(a)by means of an electronic communications network (within the meaning of the Communications Act 2003(188)); or

(b)by other means but while in an electronic form.

[Note. See also sections 4 and 5 of the Criminal Justice Act 1987 and section 53 of, and Schedule 6 to, the Criminal Justice Act 1991. On the coming into force of Schedule 3 to the Criminal Justice Act 2003(189), those provisions will be replaced with sections 51B and 51C of the Crime and Disorder Act 1998(190), which are to similar effect. For the duties of the prosecuting authority see The Criminal Justice Act 1987 (Notice of Transfer) Regulations 1988(191) and The Criminal Justice Act 1991 (Notice of Transfer) Regulations 1992(192).]

Transfer on bail

11.2.—(1) Where a person in respect of whom notice of transfer has been given―

(a)is granted bail under section 5(3) or (7A) of the Criminal Justice Act 1987(193) by the magistrates’ court to which notice of transfer was given; or

(b)is granted bail under paragraph 2(1) or (7) of Schedule 6 to the Criminal Justice Act 1991(194) by the magistrates’ court to which notice of transfer was given,

the magistrates’ court officer shall give notice thereof in writing to the governor of the prison or remand centre to which the said person would have been committed by that court if he had been committed in custody for trial.

(2) Where notice of transfer is given under section 4(1) of the 1987 Act in respect of a corporation the magistrates’ court officer shall give notice thereof to the governor of the prison to which would be committed a male over 21 committed by that court in custody for trial.

[Note. For bail generally, see Part 19.]

Notice where person removed to hospital

11.3.  Where a transfer direction has been given by the Secretary of State under section 47 or 48 of the Mental Health Act 1983(195) in respect of a person remanded in custody by a magistrates’ court and, before the direction ceases to have effect, notice of transfer is given in respect of that person, the magistrates’ court officer shall give notice thereof in writing—

(a)to the governor of the prison to which that person would have been committed by that court if he had been committed in custody for trial; and

(b)to the managers of the hospital where he is detained.

Variation of arrangements for bail

11.4.—(1) A person who intends to make an application to a magistrates’ court under section 3(8) of the Bail Act 1976(196) as that subsection has effect under section 3(8A) of that Act(197) shall give notice thereof in writing to the magistrates’ court officer, and to the designated authority or the defendant, as the case may be, and to any sureties concerned.

(2) Where, on an application referred to in paragraph (1), a magistrates’ court varies or imposes any conditions of bail, the magistrates’ court officer shall send to the Crown Court officer a copy of the record made in pursuance of section 5 of the 1976 Act relating to such variation or imposition of conditions.

Documents to be sent to the Crown Court

11.5.  As soon as practicable after a magistrates’ court to which notice of transfer has been given has discharged the functions reserved to it under section 4(1) of the Criminal Justice Act 1987 or section 53(3) of the Criminal Justice Act 1991(198), the magistrates’ court officer shall send to the Crown Court officer—

(a)a list of the names, addresses and occupations of the witnesses;

(b)a copy of the record made in pursuance of section 5 of the Bail Act 1976 relating to the grant of withholding of bail in respect of the accused;

(c)any recognizance entered into by any person as surety for the accused together with a statement of any enlargement thereof;

(d)a copy of any representation order previously made in the case; and

(e)a copy of any application for a representation order previously made in the case which has been refused.

PART 12

12.1.  [Note. There are no rules in this Part.]

PART 13DISMISSAL OF CHARGES TRANSFERRED OR SENT TO THE CROWN COURT

Contents of this Part
Interpretation of this Partrule 13.1
Written notice of oral application for dismissalrule 13.2
Written application for dismissalrule 13.3
Prosecution replyrule 13.4
Determination of applications for dismissalrule 13.5

Interpretation of this Part

13.1.  In this Part―

‘notice of transfer’ means a notice referred to in section 4(1) of the Criminal Justice Act 1987(199) or section 53(1) of the Criminal Justice Act 1991(200); and

‘the prosecution’ means the authority by or on behalf of whom notice of transfer was given under the 1987 or 1991 Acts, or the authority by or on behalf of whom documents were served under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998(201).

[Note. See also section 6 of the Criminal Justice Act 1987, section 53 of, and Schedule 6 to, the Criminal Justice Act 1991 and sections 51 and 52 of, and Schedule 3 to, the Crime and Disorder Act 1998.]

Written notice of oral application for dismissal

13.2.—(1) Where notice of transfer has been given under the Criminal Justice Act 1987 or the Criminal Justice Act 1991, or a person has been sent for trial under the Crime and Disorder Act 1998, and the person concerned proposes to apply orally―

(a)under section 6(1) of the 1987 Act(202);

(b)under paragraph 5(1) of Schedule 6 to the 1991 Act(203); or

(c)under paragraph 2(1) of Schedule 3 to the 1998 Act(204)

for any charge in the case to be dismissed, he shall give notice of his intention in writing to the Crown Court officer at the place specified by the notice of transfer under the 1987 or 1991 Acts or the notice given under section 51(7) of the 1998 Act as the proposed place of trial. Notice of intention to make an application under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(2) Notice of intention to make an application shall be given―

(a)in the case of an application to dismiss charges transferred under the 1987 Act, not later than 28 days after the day on which notice of transfer was given;

(b)in the case of an application to dismiss charges transferred under the 1991 Act, not later than 28 days after the day on which notice of transfer was given; and

(c)in the case of an application to dismiss charges sent under the 1998 Act, not later than 28 days after the day on which the documents were served under paragraph 1 of Schedule 3 to that Act,

and a copy of the notice shall be given at the same time to the prosecution and to any person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged.

(3) The time for giving notice may be extended, either before or after it expires, by the Crown Court, on an application made in accordance with paragraph (4).

(4) An application for an extension of time for giving notice shall be made in writing to the Crown Court officer, and a copy thereof shall be given at the same time to the prosecution and to any other person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged. Such an application made in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(5) The Crown Court officer shall give notice in the form set out in the Practice Direction of the judge’s decision on an application under paragraph (3)—

(a)to the applicant for dismissal;

(b)to the prosecution; and

(c)to any other person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged.

(6) A notice of intention to make an application under section 6(1) of the 1987 Act, paragraph 5(1) of Schedule 6 to the 1991 Act or paragraph 2(1) of Schedule 3 to the 1998 Act shall be accompanied by a copy of any material on which the applicant relies and shall—

(a)specify the charge or charges to which it relates;

(b)state whether the leave of the judge is sought under section 6(3) of the 1987 Act, paragraph 5(4) of Schedule 6 to the 1991 Act or paragraph 2(4) of Schedule 3 to the 1998 Act(205) to adduce oral evidence on the application, indicating what witnesses it is proposed to call at the hearing; and

(c)in the case of a transfer under the 1991 Act, confirm in relation to each such witness that he is not a child to whom paragraph 5(5) of Schedule 6 to that Act applies.

(7) Where leave is sought from the judge for oral evidence to be given on an application, notice of his decision, indicating what witnesses are to be called if leave is granted, shall be given in writing by the Crown Court officer to the applicant for dismissal, the prosecution and to any other person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged. Notice of a decision in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(8) Where an application for dismissal under section 6(1) of the 1987 Act, paragraph 5(1) of Schedule 6 to the 1991 Act or paragraph 2(1) of Schedule 3 to the 1998 Act is to be made orally, the Crown Court officer shall list the application for hearing before a judge of the Crown Court and the prosecution shall be given the opportunity to be represented at the hearing.

Written application for dismissal

13.3.—(1) Application may be made for dismissal under section 6(1) of the Criminal Justice Act 1987, paragraph 5(1) of Schedule 6 to the Criminal Justice Act 1991 or paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998 without an oral hearing. Such an application shall be in writing, and in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(2) The application shall be sent to the Crown Court officer and shall be accompanied by a copy of any statement or other document, and identify any article, on which the applicant for dismissal relies.

(3) A copy of the application and of any accompanying documents shall be given at the same time to the prosecution and to any other person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged.

(4) A written application for dismissal shall be made―

(a)not later than 28 days after the day on which notice of transfer was given under the 1987 Act;

(b)not later than 28 days after the day on which notice of transfer was given under the 1991 Act; or

(c)not later than 28 days after the day on which documents required by paragraph 1 of Schedule 3 to the 1998 Act were served

unless the time for making the application is extended, either before or after it expires, by the Crown Court; and rule 13.2(4) and (5) shall apply for the purposes of this paragraph as if references therein to giving notice of intention to make an oral application were references to making a written application under this rule.

Prosecution reply

13.4.—(1) Not later than seven days from the date of service of notice of intention to apply orally for the dismissal of any charge contained in a notice of transfer or based on documents served under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998, the prosecution may apply to the Crown Court under section 6(3) of the Criminal Justice Act 1987, paragraph 5(4) of Schedule 6 to the Criminal Justice Act 1991 or paragraph 2(4) of Schedule 3 to the 1998 Act for leave to adduce oral evidence at the hearing of the application, indicating what witnesses it is proposed to call.

(2) Not later than seven days from the date of receiving a copy of an application for dismissal under rule 13.3, the prosecution may apply to the Crown Court for an oral hearing of the application.

(3) An application under paragraph (1) or (2) shall be served on the Crown Court officer in writing and, in the case of an application under paragraph (2), shall state whether the leave of the judge is sought to adduce oral evidence and, if so, shall indicate what witnesses it is proposed to call. Where leave is sought to adduce oral evidence under paragraph 5(4) of Schedule 6 to the 1991 Act, the application should confirm in relation to each such witness that he is not a child to whom paragraph 5(5) of that Schedule applies. Such an application in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(4) Notice of the judge’s determination upon an application under paragraph (1) or (2), indicating what witnesses (if any) are to be called shall be served in writing by the Crown Court officer on the prosecution, on the applicant for dismissal and on any other party to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged. Such a notice in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

(5) Where, having received the material specified in rule 13.2 or, as the case may be, rule 13.3, the prosecution proposes to adduce in reply thereto any written comments or any further evidence, the prosecution shall serve any such comments, copies of the statements or other documents outlining the evidence of any proposed witnesses, copies of any further documents and, in the case of an application to dismiss charges transferred under the 1991 Act, copies of any video recordings which it is proposed to tender in evidence, on the Crown Court officer not later than 14 days from the date of receiving the said material, and shall at the same time serve copies thereof on the applicant for dismissal and any other person to whom the notice of transfer relates or with whom the applicant is jointly charged. In the case of a defendant acting in person, copies of video recordings need not be served but shall be made available for viewing by him.

(6) The time for—

(a)making an application under paragraph (1) or (2) above; or

(b)serving any material on the Crown Court officer under paragraph (5) above

may be extended, either before or after it expires, by the Crown Court, on an application made in accordance with paragraph (7) below.

(7) An application for an extension of time under paragraph (6) above shall be made in writing and shall be served on the Crown Court officer, and a copy thereof shall be served at the same time on to the applicant for dismissal and on any other person to whom the notice of transfer relates or with whom the applicant for dismissal is jointly charged. Such an application in proceedings under the 1987 or 1991 Acts shall be in the form set out in the Practice Direction.

Determination of applications for dismissal

13.5.—(1) A judge may grant leave for a witness to give oral evidence on an application for dismissal notwithstanding that notice of intention to call the witness has not been given in accordance with the foregoing provisions of this Part.

(2) Where an application for dismissal is determined otherwise than at an oral hearing, the Crown Court officer shall as soon as practicable, send to all the parties to the case written notice of the outcome of the application. Such a notice in proceedings under the 1987 and 1991 Acts shall be in the form set out in the Practice Direction.

PART 14THE INDICTMENT

Contents of this Part
Service and signature of indictmentrule 14.1
Form and content of indictmentrule 14.2

[Note. See also sections 3, 4 and 5 of the Indictments Act 1915(206) and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(207).]

Service and signature of indictment

14.1.—(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; or

(d)the committal or transfer of the defendant for trial.

(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)sign, and add the date of receipt on, the indictment; 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(208). Under section 51D of that Act(209) 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(210), and The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(211), deal with the service of prosecution evidence in a case sent 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. See also direction IV.35 of the Practice Direction.

The Court of Appeal may order a retrial under section 8 of the Criminal Appeal Act 1968(212) (on a defendant’s appeal against conviction) or under section 77 of the Criminal Justice Act 2003(213) (on a prosecutor’s application for the retrial of a serious offence after acquittal). Section 8 of the 1968 Act, and rules 41.14 and 41.15, require the arraignment of a defendant within 2 months.

When it comes into force, Schedule 3 to the Criminal Justice Act 2003 will abolish committal for trial under section 6 of the Magistrates’ Courts Act 1980(214), and transfer for trial under section 4 of the Criminal Justice Act 1987(215) (serious fraud cases) or under section 53 of the Criminal Justice Act 1991(216) (certain cases involving children).]

Form and content of indictment

14.2.—(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—

(i)specified in the notice of the offence or offences for which the defendant was sent for trial,

(ii)on which the defendant was committed for trial, or

(iii)specified in the notice of transfer given by the prosecutor; 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(217)(specified summary offences founded on that evidence).]

PART 15PREPARATORY HEARINGS IN THE CROWN COURT

Contents of this Part
When this Part appliesrule 15.1
Exercise of court’s powersrule 15.2
Application for preparatory hearingrule 15.3
Application containing information withheld from a defendantrule 15.4
Representations in responserule 15.5
Commencement of preparatory hearingrule 15.6
Court’s power to vary requirementsrule 15.7

When this Part applies

15.1.  This Part applies where the Crown Court―

(a)can order a preparatory hearing, under―

(i)section 7 of the Criminal Justice Act 1987(218) (cases of serious or complex fraud), or

(ii)section 29 of the Criminal Procedure and Investigations Act 1996(219) (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(220) (danger of jury tampering), or

(ii)section 17 of the Domestic Violence, Crime and Victims Act 2004(221) (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).

[Note. See also section 45(2) of the 2003 Act and section 18(1) of the 2004 Act.

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(222), and under section 34 of the 1996 Act(223), 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.]

Exercise of court’s powers

15.2.  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.

Application for preparatory hearing

15.3.—(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 containing information withheld from a defendant

15.4.—(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

15.5.—(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

15.6.  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 (unless already done).

[Note. See section 8 of the Criminal Justice Act 1987(224) and section 30 of the Criminal Procedure and Investigations Act 1996(225).]

Court’s power to vary requirements

15.7.—(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 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 16REPORTING, ETC. RESTRICTIONS

Contents of this Part
Section 1: general rules
When this Part appliesrule 16.1
Exercise of court’s powers to which this Part appliesrule 16.2
Court’s power to vary requirements under this Partrule 16.3
Section 2: reporting and access restrictions
Reporting and access restrictionsrule 16.4
Varying or removing restrictionsrule 16.5
Trial in privaterule 16.6
Representations in responserule 16.7
Order about restriction or trial in privaterule 16.8
Section 3: sound recording and electronic communication
Sound recording and electronic communicationrule 16.9
Forfeiture of unauthorised sound recordingrule 16.10

SECTION 1: GENERAL RULES

When this Part applies

16.1.—(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 39 of the Children and Young Persons Act 1933(226) (identity of a person under 18);

(b)section 4(2) of the Contempt of Court Act 1981(227) (postponed report of public hearing);

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

(d)section 58 of the Criminal Procedure and Investigations Act 1996(228) (postponed report of derogatory assertion in mitigation);

(e)section 46 of the Youth Justice and Criminal Evidence Act 1999(229)(identity of a vulnerable adult witness);

(f)section 82 of the Criminal Justice Act 2003(230) (order for retrial after acquittal); or

(g)section 75 of the Serious Organised Crime and Police Act 2005(231) (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(232) (youth court proceedings);

(b)section 8 of the Magistrates’ Courts Act 1980(233) (committal for trial proceedings);

(c)section 8C of the Magistrates’ Courts Act 1980(234) (pre-trial ruling in magistrates’ courts);

(d)section 11 of the Criminal Justice Act 1987(235) (preparatory hearing in the Crown Court);

(e)paragraph 6 of Schedule 6 to the Criminal Justice Act 1991(236) (transfer for trial proceedings);

(f)section 1 of the Sexual Offences (Amendment) Act 1992(237) (identity of complainant of sexual offence);

(g)section 37 of the Criminal Procedure and Investigations Act 1996(238) (preparatory hearing in the Crown Court);

(h)section 41 of the Criminal Procedure and Investigations Act 1996(239) (pre-trial ruling in the Crown Court);

(i)section 52A of, and paragraph 3 of Schedule 3 to, the Crime and Disorder Act 1998(240) (allocation and sending for trial proceedings);

(j)section 47 of the Youth Justice and Criminal Evidence Act 1999(241) (special measures direction);

(k)section 141F of the Education Act 2002(242) (restrictions on reporting alleged offences by teachers); and

(l)section 71 of the Criminal Justice Act 2003(243) (prosecution appeal against Crown Court ruling).

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(244) (indecent or medical matter);

(b)section 2 of the Contempt of Court Act 1981(245) (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(246). See also rule 37.2.

The court can restrict access to the courtroom under

(a)section 8(4) of the Official Secrets Act 1920(247), during proceedings for an offence under the Official Secrets Acts 1911 and 1920;

(b)section 37 of the Children and Young Persons Act 1933(248), where the court receives evidence from a person under 18;

(c)section 75 of the Serious Organised Crime and Police Act 2005(249), 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(250), 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.

The court has no power to allow photography. Under section 41 of the Criminal Justice Act 1925(251), 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.

By reason of sections 15 and 45 of the Senior Courts Act 1981(252), the Court of Appeal and the Crown Court each has an inherent power to deal with a person for contempt of court for disrupting the proceedings. Under section 12 of the Contempt of Court Act 1981(253), 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 29, which applies to live links and other measures to assist a witness or defendant to give evidence;

(c)Part 62, which contains rules about contempt of court; and

(d)rule 76.10, which applies to costs orders against a non-party for serious misconduct.]

Exercise of court’s powers to which this Part applies

16.2.—(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(254) and rule 37.2.]

Court’s power to vary requirements under this Part

16.3.—(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.

SECTION 2: REPORTING AND ACCESS RESTRICTIONS

Reporting and access restrictions

16.4.—(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) 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 in respect of a witness under section 46 of the Youth Justice and Criminal Evidence Act 1999, explain—

(i)how the witness is eligible for assistance, and

(ii)why a reporting direction would be likely to improve the quality of the witness’ evidence, or the level of co-operation the witness gives the applicant in connection with the preparation of the applicant’s case.

Varying or removing restrictions

16.5.—(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(255) 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 63.10 (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

16.6.—(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)will 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 will receive, 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

16.7.—(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

16.8.—(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.

SECTION 3: SOUND RECORDING AND ELECTRONIC COMMUNICATION

Sound recording and electronic communication

16.9.—(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

16.10.—(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 16.2(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(256), the court can forfeit any device or recording used or made in contravention of section 9(1) of the Act.]

PART 17EXTRADITION

Contents of this Part
Refusal to make an order of committalrule 17.1
Notice of waiverrule 17.2
Notice of consentrule 17.3
Notice of consent (parties to 1995 Convention)rule 17.4
Consent to early removal to Republic of Irelandrule 17.5
Bail pending removal to Republic of Irelandrule 17.6
Delivery of warrant issued in Republic of Irelandrule 17.7
Verification of warrant etc. issued in Republic of Irelandrule 17.8
Application to state a case where court declines to order
  removal to Republic of Irelandrule 17.9
Draft case where court declines to order
  removal to Republic of Irelandrule 17.10
Forms for proceedings for removal to Republic of Irelandrule 17.11

Refusal to make an order of committal

17.1.—(1) Where a magistrates’ court refuses to make an order of committal in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates and the state, country or colony seeking the surrender of that person immediately informs the court that it intends to make an application to the court to state a case for the opinion of the High Court, if the magistrates’ court makes an order in accordance with section 10(2) of the Extradition Act 1989(257) releasing that person on bail, the court officer shall forthwith send a copy of that order to the Administrative Court Office.

(2) Where a magistrates’ court refuses to make an order of committal in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates and the state, country or colony seeking his surrender wishes to apply to the court to state a case for the opinion of the High Court under section 10(1) of the 1989 Act, such application must be made to the magistrates’ court within the period of 21 days following the day on which the court refuses to make the order of committal unless the court grants a longer period within which the application is to be made.

(3) Such an application shall be made in writing and shall identify the question or questions of law on which the opinion of the High Court is sought.

(4) Within 21 days after receipt of an application to state a case under section 10(1) of the 1989 Act, the magistrates’ court officer shall send a draft case to the solicitor for the state, country or colony and to the person whose surrender is sought or his solicitor and shall allow each party 21 days within which to make representations thereon; within 21 days after the latest day on which such representations may be made the court of committal shall, after considering any such representations and making such adjustments, if any, to the draft case as it thinks fit, state and sign the case which the court officer shall forthwith send to the solicitor for the state, country or colony.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Notice of waiver

17.2.—(1) A notice given under section 14 of, or paragraph 9 of Schedule 1 to, the Extradition Act 1989(258) (notice of waiver under the simplified procedure) shall be in the form set out in the Practice Direction or a form to the like effect.

(2) Such a notice shall be signed in the presence of the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates’ Courts) designated by him for the purposes of the Act, a justice of the peace or a justices’ clerk.

(3) Any such notice given by a person in custody shall be delivered to the Governor of the prison in whose custody he is.

(4) If a person on bail gives such notice he shall deliver it to, or send it by post in a registered letter or by recorded delivery service addressed to, the Secretary of State for the Home Department, c/o the Extradition Section, Home Office, 5th Floor, Fry Building, 2 Marsham Street, London, SW1P 4DF.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Notice of consent

17.3.—(1) A person arrested in pursuance of a warrant under section 8 of or paragraph 5 of Schedule 1 to the Extradition Act 1989(259) may at any time consent to his return; and where such consent is given in accordance with the following provisions of this rule, the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates’ Courts) designated by him for the purposes of the Act may order the committal for return of that person in accordance with section 14(2) of that Act or, as the case may be, paragraph 9(2) of Schedule 1 to the Act.

(2) A notice of consent for the purposes of this rule shall be given in the form set out in the Practice Direction and shall be signed in the presence of the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates’ Courts) designated by him for the purposes of the 1989 Act.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Notice of consent (parties to 1995 Convention)

17.4.—(1) This rule applies as between the United Kingdom and states other than the Republic of Ireland that are parties to the Convention drawn up on the basis of Article 31 of the Treaty on European Union on Simplified Extradition Procedures between the Member States of the European Union, in relation to which section 14A of the Extradition Act 1989 applies by virtue of section 34A and Schedule 1A of that Act(260).

(2) Notice of consent for the purposes of section 14A(3) of the 1989 Act shall be given in the form set out in the Practice Direction and shall be signed in the presence of the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates’ Courts) designated by him for the purposes of that Act.

(3) The Senior District Judge (Chief Magistrate) or another District Judge (Magistrates’ Courts) designated by him for the purposes of the Act may order the committal for return of a person if he gives consent under section 14A of the 1989 Act in accordance with paragraph (2) above before he is committed under section 9 of that Act(261).

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Consent to early removal to Republic of Ireland

17.5.—(1) A notice given under section 3(1)(a) of the Backing of Warrants (Republic of Ireland) Act 1965(262) (consent to surrender earlier than is otherwise permitted) shall be signed in the presence of a justice of the peace or a justices’ clerk.

(2) Any such notice given by a person in custody shall be delivered to the Governor of the prison in whose custody he is.

(3) If a person on bail gives such notice, he shall deliver it to, or send it by post in a registered letter or by recorded delivery service addressed to, the police officer in charge of the police station specified in his recognizance.

(4) Any such notice shall be attached to the warrant ordering the surrender of that person.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Bail pending removal to Republic of Ireland

17.6.—(1) The person taking the recognizance of a person remanded on bail under section 2(1) or 4(3) of the Backing of Warrants (Republic of Ireland) Act 1965(263) shall furnish a copy of the recognizance to the police officer in charge of the police station specified in the recognizance.

(2) The court officer for a magistrates’ court which ordered a person to be surrendered and remanded him on bail shall deliver to, or send by post in a registered letter or by recorded delivery service addressed to, the police officer in charge of the police station specified in the recognizance the warrant ordering the person to be surrendered.

(3) The court officer for a magistrates’ court which refused to order a person to be delivered under section 2 of the 1965 Act but made an order in accordance with section 2A(2) of that Act(264) releasing that person on bail, upon the chief officer of police immediately informing the court that he intended to make an application to the court to state a case for the opinion of the High Court, shall forthwith send a copy of that order to the Administrative Court Office.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Delivery of warrant issued in Republic of Ireland

17.7.—(1) The court officer for a magistrates’ court which ordered a person to be surrendered under section 2(1) of the Backing of Warrants (Republic of Ireland) Act 1965 shall deliver to, or send by post in a registered letter or by recorded delivery service addressed to—

(a)if he is remanded in custody under section 5(1)(a) of the 1965 Act, the prison Governor to whose custody he is committed;

(b)if he is remanded on bail under section 5(1)(b) of the 1965 Act(265), the police officer in charge of the police station specified in the recognizance; or

(c)if he is committed to the custody of a constable pending the taking from him of a recognizance under section 5(1) of the 1965 Act, the police officer in charge of the police station specified in the warrant of commitment,

the warrant of arrest issued by a judicial authority in the Republic of Ireland and endorsed in accordance with section 1 of the 1965 Act(266).

(2) The Governor or police officer to whom the said warrant of arrest is delivered or sent shall arrange for it to be given to the member of the police force of the Republic into whose custody the person is delivered when the person is so delivered.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Verification of warrant etc. issued in Republic of Ireland

17.8.—(1) A document purporting to be a warrant issued by a judicial authority in the Republic of Ireland shall, for the purposes of section 7(a) of the Backing of Warrants (Republic of Ireland) Act 1965, be verified by a certificate purporting to be signed by a judicial authority, a clerk of a court or a member of the police force of the Republic and certifying that the document is a warrant and is issued by a judge or justice of a court or a peace commissioner.

(2) A document purporting to be a copy of a summons issued by a judicial authority in the Republic shall, for the purposes of section 7(a) of the 1965 Act, be verified by a certificate purporting to be signed by a judicial authority, a clerk of a court or a member of the police force of the Republic and certifying that the document is a true copy of such a summons.

(3) A deposition purporting to have been made in the Republic, or affidavit or written statement purporting to have been sworn therein, shall, for the purposes of section 7(c) of the 1965 Act, be verified by a certificate purporting to be signed by the person before whom it was sworn and certifying that it was so sworn.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Application to state a case where court declines to order removal to Republic of Ireland

17.9.—(1) Where a magistrates’ court refuses to make an order in relation to a person under section 2 of the Backing of Warrants (Republic of Ireland) Act 1965, any application to the court under section 2A(1) of that Act to state a case for the opinion of the High Court on any question of law arising in the proceedings must be made to the court by the chief officer of police within the period of 21 days following the day on which the order was refused, unless the court grants a longer period within which the application is to be made.

(2) Such an application shall be made in writing and shall identify the question or questions of law on which the opinion of the High Court is sought.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Draft case where court declines to order removal to Republic of Ireland

17.10.  Within 21 days after receipt of an application to state a case under section 2A(1) of the Backing of Warrants (Republic of Ireland) Act 1965, the magistrates’ court officer shall send a draft case to the applicant or his solicitor and to the person to whom the warrant relates or his solicitor and shall allow each party 21 days within which to make representations thereon; within 21 days after the latest day on which such representations may be made the court shall, after considering such representations and making such adjustments, if any, to the draft case as it thinks fit, state and sign the case which the court officer shall forthwith send to the applicant or his solicitor.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

Forms for proceedings for removal to Republic of Ireland

17.11.  Where a requirement is imposed by the Backing of Warrants (Republic of Ireland) Act 1965 for the use of a form, and an appropriate form is contained in the Practice Direction, that form shall be used.

[Note. This rule has effect only in proceedings where the request for extradition was received by the relevant authority in the United Kingdom on or before 31st December 2003.]

PART 18WARRANTS FOR ARREST, DETENTION OR IMPRISONMENT

Contents of this Part
When this Part appliesrule 18.1
Terms of a warrant for arrestrule 18.2
Terms of a warrant for detention or imprisonmentrule 18.3
Information to be included in a warrantrule 18.4
Execution of a warrantrule 18.5
Warrants that cease to have effect on paymentrule 18.6
Warrant issued when the court office is closedrule 18.7

[Note. Part 52 contains rules about warrants to take goods to pay fines, etc.]

When this Part applies

18.1.—(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

18.2.  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(267);

(b)section 7 of the Bail Act 1976(268);

(c)sections 1 and 97 of the Magistrates’ Courts Act 1980(269); and

(d)sections 79, 80 and 81(4), (5) of the Senior Courts Act 1981(270).

See also section 27A of the Magistrates’ Courts Act 1980(271) (power to transfer criminal proceedings) and section 78(2) of the Senior Courts Act 1981(272) (adjournment of Crown Court case to another place).]

Terms of a warrant for detention or imprisonment

18.3.—(1) A warrant for detention or imprisonment must—

(a)require each person to whom it is directed to—

(i)arrest the defendant,

(ii)take the defendant to any place specified in the warrant, and

(iii)deliver the defendant to the custodian of that place; and

(b)require that custodian to keep the defendant in custody, 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)(273) or section 136(274) of the Magistrates’ Courts Act 1980, or to customs detention under section 152 of the Criminal Justice Act 1988(275), 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 keep the defendant in custody—

(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

18.4.—(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 23 of the Children and Young Persons Act 1969(276) (remand to local authority accommodation) or section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012(277) (remand to youth detention accommodation);

(b)section 80 of the Magistrates’ Courts Act 1980(278) (application of money found on defaulter to satisfy sum adjudged); or

(c)section 82(1) or (4) of the 1980 Act(279) (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 section 23(8) of the Children and Young Persons Act 1969 and section 102(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under section 23 of the 1969 Act, the court can remand a person aged between 12 and 18 years to secure accommodation, if it decides that the prescribed conditions are met. Under section 102 of the 2012 Act, when it comes into force, the court can remand a person under 18 to such accommodation if it decides that the conditions prescribed by that 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(280), “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

18.5.—(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(281) (warrants), 125A(282) (civilian enforcement officers) or 125B(283) (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(284), 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

18.6.—(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(285) (enforcement of sums adjudged to be paid);

(b)section 83(286) (process for securing attendance of offender);

(c)section 86(287) (power of magistrates’ court to fix day for appearance of offender at means inquiry, etc.);

(d)section 136(288) (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(289) and 125(1) of the Magistrates’ Courts Act 1980.]

Warrant issued when the court office is closed

18.7.—(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 19BAIL AND CUSTODY TIME LIMITS

Contents of this Part
Section 1: general rules
When this Part appliesrule 19.1
Exercise of court’s powers to which this Part appliesrule 19.2
Duty of justices’ legal adviserrule 19.3
General duties of court officerrule 19.4
Section 2: bail
Prosecutor’s representations about bailrule 19.5
Reconsideration of police bail by magistrates’ courtrule 19.6
Notice of application to consider bailrule 19.7
Defendant’s application or appeal to the Crown Court
  after magistrates’ court bail decisionrule 19.8
Prosecutor’s appeal against grant of bailrule 19.9
Consideration of bail in a murder caserule 19.10
Condition of residencerule 19.11
Electronic monitoring requirementsrule 19.12
Accommodation or support requirementsrule 19.13
Requirement for surety or payment, etc.rule 19.14
Forfeiture of a recognizance given by a suretyrule 19.15
Section 3: custody time limits
Application to extend a custody time limitrule 19.16
Appeal against custody time limit decisionrule 19.17

SECTION 1: GENERAL RULES

When this Part applies

19.1.—(1) This Part applies where a magistrates’ court or the Crown Court can—

(a)grant or withhold bail, or impose or vary a condition of bail; and

(b)where bail has been withheld, extend a custody time limit.

(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(290);

(b)section 128 of the Magistrates’ Courts Act 1980(291) (general powers of magistrates’ courts in relation to bail);

(c)section 81 of the Senior Courts Act 1981(292) (general powers of the Crown Court in relation to bail);

(d)section 115 of the Coroners and Justice Act 2009(293) (exclusive power of the Crown Court to grant bail to a defendant charged with murder);

(e)section 22 of the Prosecution of Offences Act 1985(294) (provision for custody time limits); and

(f)the Prosecution of Offences (Custody Time Limits) Regulations 1987(295) (maximum periods during which a defendant may be kept in custody pending trial).

A summary of the general entitlement to bail, and of the exceptions to that entitlement, is at the end of this Part.]

Exercise of court’s powers to which this Part applies

19.2.—(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, 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)requiring a defendant who is under 18 to be kept in secure local authority 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 section 23 of the Children and Young Persons Act 1969.

Under sections 57A and 57B of the Crime and Disorder Act 1998(296), a defendant is to be treated as present in court when, by virtue of a live link direction within the meaning of those sections, he or she attends a hearing through a live link.]

Duty of justices’ legal adviser

19.3.—(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(297).]

General duties of court officer

19.4.—(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.

[Note. See section 5 of the Bail Act 1976(298); section 43 of the Magistrates’ Courts Act 1980(299); and section 52 of the Mental Health Act 1983(300).]

SECTION 2: BAIL

Prosecutor’s representations about bail

19.5.—(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

19.6.—(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 19.2 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(301), where

(a)a defendant has been charged with an offence; and

(b)the offence is one which can be tried in the Crown Court,

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(302).

Under section 43B of the Magistrates’ Courts Act 1980(303), 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(304).

Under section 47(1E) of the Police and Criminal Evidence Act 1984(305), 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

19.7.—(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, 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;

(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 19.2 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(306), 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(307), where the defendant is on bail and the offence is one which can be tried in the Crown Court, on application by the prosecutor a magistrates’ court may withdraw bail, impose conditions of bail or vary the conditions of bail.

Under Part IIA of Schedule 1 to the Bail Act 1976(308), 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

19.8.—(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; and

(d)if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed.

(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 19.4(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(309), 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(310), 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(311). For the procedure in the High Court, see Schedule 1 to the Civil Procedure Rules 1998 (RSC Order 79)(312).]

Prosecutor’s appeal against grant of bail

19.9.—(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, except 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) The court officer for the court which has granted bail must, as soon as practicable, serve on the appeal court officer—

(a)the appeal notice;

(b)a copy of the note or record made under rule 19.4(1); and

(c)the date of the next hearing, if any, 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(313). 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).]

Consideration of bail in a murder case

19.10.—(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(314).]

Condition of residence

19.11.—(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

19.12.—(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(315), 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(316) set out conditions for imposing such requirements.

Under section 3AC of the 1976 Act(317), where the court imposes electronic monitoring requirements they must provide for the appointment of a monitor.]

Accommodation or support requirements

19.13.—(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.

19.14.—(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(318).]

Forfeiture of a recognizance given by a surety

19.15.—(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(319).]

SECTION 3: CUSTODY TIME LIMITS

Application to extend a custody time limit

19.16.—(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(320).

Under regulations 4 and 5 of the 1987 Regulations(321), 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 committal for trial proceedings or 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—

(i)112 days from the defendant’s committal for trial, or

(ii)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(322), 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

19.17.—(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(323).]

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, and whether an application is made or not. Under section 4 of the Bail Act 1976(324), the general rule, subject to exceptions, is that a defendant must be granted bail. Under Part IIA of Schedule 1 to the Act(325), 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 (326)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(327). They differ according to the category of offence concerned. Some exceptions do not apply where the defendant is 18 or over and has not been convicted in the current proceedings, and 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 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

(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)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;

(b)the defendant need not be granted bail if in custody pursuant to a sentence;

(c)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;

(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;

(e)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.

In such a case, 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.

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.

Further exceptions to the general right to bail are set out in section 25 of the Criminal Justice and Public Order Act 1994(328), 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.]

PART 20

20.1.  [Note. There are no rules in this Part.]

PART 21INITIAL DETAILS OF THE PROSECUTION CASE

Contents of this Part
When this Part appliesrule 21.1
Providing initial details of the prosecution caserule 21.2
Content of initial detailsrule 21.3

When this Part applies

21.1.—(1) This Part applies in a magistrates’ court, where the offence is one that can be tried in a magistrates’ court.

(2) The court may direct that, for a specified period, this Part will not apply—

(a)to any case in that court; or

(b)to any specified category of case.

[Note. An offence may be classified as—

(a)one that can be tried only in a magistrates’ court (in other legislation, described as triable only summarily);

(b)one that can be tried either in a magistrates’ court or in the Crown Court (in other legislation, described as triable either way); or

(c)one that can be tried only in the Crown Court (in other legislation, described as triable only on indictment).

See the definitions contained in Schedule 1 to the Interpretation Act 1978(329). In some circumstances, the Crown Court can try an offence that usually can be tried only in a magistrates’ court.

This Part does not apply where an offence can be tried only in the Crown Court. In such a case, details are served on the defendant after the case is sent for trial. Part 9 contains relevant rules.]

Providing initial details of the prosecution case

21.2.  The prosecutor must provide initial details of the prosecution case by—

(a)serving those details on the court officer; and

(b)making those details available to the defendant,

at, or before, the beginning of the day of the first hearing.

Content of initial details

21.3.  Initial details of the prosecution case must include—

(a)a summary of the evidence on which that case will be based; or

(b)any statement, document or extract setting out facts or other matters on which that case will be based; or

(c)any combination of such a summary, statement, document or extract; and

(d)the defendant’s previous convictions.

PART 22DISCLOSURE

Contents of this Part
When this Part appliesrule 22.1
Prosecution disclosurerule 22.2
Prosecutor’s application for public interest rulingrule 22.3
Defence disclosurerule 22.4
Defendant’s application for prosecution disclosurerule 22.5
Review of public interest rulingrule 22.6
Defendant’s application to use disclosed materialrule 22.7
Unauthorised use of disclosed materialrule 22.8
Court’s power to vary requirements under this Partrule 22.9

When this Part applies

22.1.  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(330) 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

22.2.—(1) This rule applies in the Crown Court where, under section 3 of the Criminal Procedure and Investigations Act 1996(331), 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.

Prosecutor’s application for public interest ruling

22.3.—(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)will 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 will receive, 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(332).

See also sections 16 and 19 of the 1996 Act(333).]

Defence disclosure

22.4.—(1) This rule applies where—

(a)under section 5 or 6 of the Criminal Procedure and Investigations Act 1996(334), the defendant gives a defence statement;

(b)under section 6C of the 1996 Act(335), 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

22.5.—(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(336), a defendant may apply for prosecution disclosure only if the defendant has given a defence statement.]

Review of public interest ruling

22.6.—(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)will 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 will receive, 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(337). 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

22.7.—(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(338).

See also section 19 of the 1996 Act.]

Unauthorised use of disclosed material

22.8.—(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 62 (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

22.9.  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 22.5 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(339).

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(340) and The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005(341).

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(342) 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.

See also sections 1, 4 and 10 of the 1996 Act.

Defence disclosure

Under section 5 of the 1996 Act(343), 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(344), 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(345)and by The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011(346). 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(347), where the investigation began on or after 4th April, 2005. See also section 6E of the Act(348).

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(349), 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 23

23.1.  [Note. There are no rules in this Part.]

PART 24

24.1.  [Note. There are no rules in this Part.]

PART 25

25.1.  [Note. There are no rules in this Part.]

PART 26

26.1.  [Note. There are no rules in this Part.]

PART 27WITNESS STATEMENTS

Contents of this Part
When this Part appliesrule 27.1
Content of written statementrule 27.2
Reference to exhibitrule 27.3
Written statement in evidencerule 27.4

When this Part applies

27.1.  This Part applies where a party wants to introduce a written statement in evidence under section 9 of the Criminal Justice Act 1967(350).

[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 statement

27.2.  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

27.3.  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 statement in evidence

27.4.—(1) A party who wants to introduce in evidence a written 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 within 7 days of service to object to the introduction of the statement in evidence instead of the witness giving evidence in person; and

(b)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) 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.

(5) 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 notice for use in connection with this rule.

Under section 133 of the Criminal Justice Act 2003(351), 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 28WITNESS SUMMONSES, WARRANTS AND ORDERS

Contents of this Part
When this Part appliesrule 28.1
Issue etc. of summons, warrant or order with or without a hearingrule 28.2
Application for summons, warrant or order: general rulesrule 28.3
Written application: form and servicerule 28.4
Application for summons to produce a document, etc.:
  special rulesrule 28.5
Application for summons to produce a document, etc.:
  court’s assessment of relevance and confidentialityrule 28.6
Application to withdraw a summons, warrant or orderrule 28.7
Court’s power to vary requirements under this Partrule 28.8

[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(352). The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(353). 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(354).

See Part 3 for the court’s general powers to consider an application and to give directions.]

When this Part applies

28.1.—(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,

(ii)section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, or

(iii)section 7 of the Bankers’ Books Evidence Act 1879;

(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 28.7 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. 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.]

Issue etc. of summons, warrant or order with or without a hearing

28.2.—(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 28.5 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

28.3.—(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 28.5 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 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

28.4.—(1) An application in writing under rule 28.3 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 28.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(355) and section 5B of the Magistrates’ Courts Act 1980(356). Section 89 of the 1967 Act(357) 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

28.5.—(1) This rule applies to an application under rule 28.3 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 28.4.

(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(358), 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

28.6.—(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

28.7.—(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 28.6 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(359) 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

28.8.—(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 29MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE

Contents of this Part
Section 1: understanding and applying this Part
When this Part appliesrule 29.1
Meaning of ‘witness’rule 29.2
Section 2: general rules
Making an application for a direction or orderrule 29.3
Decisions and reasonsrule 29.4
Court’s power to vary requirements under this Partrule 29.5
Custody of documentsrule 29.6
Declaration by intermediaryrule 29.7
Section 3: special measures directions
Exercise of court’s powersrule 29.8
Special measures direction for a young witnessrule 29.9
Content of application for a special measures directionrule 29.10
Application to vary or discharge a special measures directionrule 29.11
Application containing information withheld from another partyrule 29.12
Representations in responserule 29.13
Section 4: defendant’s evidence directions
Exercise of court’s powersrule 29.14
Content of application for a defendant’s evidence directionrule 29.15
Application to vary or discharge a defendant’s evidence directionrule 29.16
Representations in responserule 29.17
Section 5: witness anonymity orders
Exercise of court’s powersrule 29.18
Content and conduct of application for a witness anonymity orderrule 29.19
Duty of court officer to notify the Director of Public Prosecutionsrule 29.20
Application to vary or discharge a witness anonymity orderrule 29.21
Representations in responserule 29.22
Section 6: live link directions
Exercise of court’s powersrule 29.23
Content of application for a live link directionrule 29.24
Application to discharge a live link directionrule 29.25
Representations in responserule 29.26

SECTION 1: UNDERSTANDING AND APPLYING THIS PART

When this Part applies

29.1.  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(360), 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(361)),

(iii)hearing a witness’ evidence in private (section 25 of the 1999 Act),

(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(362)),

(vi)questioning a witness through an intermediary (section 29 of the 1999 Act(363)),

(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(364);

(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(365), or

(ii)through an intermediary, under sections 33BA and 33BB of the 1999 Act(366);

(d)where the court can—

(i)make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009(367), 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(368), or

(ii)sections 51 and 52 of the Criminal Justice Act 2003(369);

(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’

29.2.  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.]

SECTION 2: GENERAL RULES

Making an application for a direction or order

29.3.  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 29.10 (content of application for a special measures direction), rule 29.15 (content of application for a defendant’s evidence direction), rule 29.19 (content and conduct of application for a witness anonymity order) and rule 29.24 (content of application for a live link direction).

The Practice Direction sets out forms for use in connection with

(a)an application under rule 29.10 for a special measures direction;

(b)an application under rule 29.24 for a live link direction (otherwise than as a special measures direction).]

Decisions and reasons

29.4.—(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(370)]

Court’s power to vary requirements under this Part

29.5.—(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

29.6.  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

29.7.—(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.

SECTION 3: SPECIAL MEASURES DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.8.  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

29.9.—(1) This rule applies where, under section 21 or section 22 of the Youth Justice and Criminal Evidence Act 1999(371), 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

29.10.  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

29.11.—(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

29.12.—(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 will receive, 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

29.13.—(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.]

SECTION 4: DEFENDANT’S EVIDENCE DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.14.  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

29.15.  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

29.16.—(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

29.17.—(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.

SECTION 5: WITNESS ANONYMITY ORDERS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.18.—(1) The court may decide whether to make, vary or discharge a witness anonymity order—

(a)at a hearing (which will 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 63 (appeal to the Crown Court) or Part 68 (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

29.19.—(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(372);

(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 section 46 of the Youth Justice and Criminal Evidence Act 1999(373) or under section 39 of the Children and Young Persons Act 1933(374),

(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(375), 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 will receive, 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

29.20.  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

29.21.—(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

29.22.—(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.

SECTION 6: LIVE LINK DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply. 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 the rules in Section 3 (special measures directions).]

Exercise of court’s powers

29.23.  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.

Content of application for a live link direction

29.24.  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(376) and section 51 of the Criminal Justice Act 2003(377).

The Practice Direction sets out a form of application for use in connection with this rule.]

Application to discharge a live link direction

29.25.—(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(378) and section 52(3) of the Criminal Justice Act 2003(379).]

Representations in response

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

(a)an application for a live link direction;

(b)an application for the discharge of such a direction; or

(c)a direction 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 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 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(380), 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(381) 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 29.1 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(382), 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(383), 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(384), 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(385) 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(386), 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(387). Section 3 of this Part contains relevant rules.

PART 30

30.1.  [Note. There are no rules in this Part.]

PART 31RESTRICTION ON CROSS-EXAMINATION BY A DEFENDANT ACTING IN PERSON

Contents of this Part
Restrictions on cross-examination of witnessrule 31.1
Appointment of legal representative by the courtrule 31.2
Appointment arranged by the accusedrule 31.3
Prohibition on cross-examination of witnessrule 31.4

Restrictions on cross-examination of witness

31.1.—(1) This rule and rules 31.2 and 31.3 apply where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36 of the Youth Justice and Criminal Evidence Act 1999(388).

(2) The court shall explain to the accused as early in the proceedings as is reasonably practicable that he—

(a)is prevented from cross-examining a witness in person; and

(b)should arrange for a legal representative to act for him for the purpose of cross-examining the witness.

(3) The accused shall notify the court officer within 7 days of the court giving its explanation, or within such other period as the court may in any particular case allow, of the action, if any, he has taken.

(4) Where he has arranged for a legal representative to act for him, the notification shall include details of the name and address of the representative.

(5) The notification shall be in writing.

(6) The court officer shall notify all other parties to the proceedings of the name and address of the person, if any, appointed to act for the accused.

(7) Where the court gives its explanation under paragraph (2) to the accused either within 7 days of the day set for the commencement of any hearing at which a witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies may be cross-examined or after such a hearing has commenced, the period of 7 days shall be reduced in accordance with any directions issued by the court.

(8) Where at the end of the period of 7 days or such other period as the court has allowed, the court has received no notification from the accused it may grant the accused an extension of time, whether on its own motion or on the application of the accused.

(9) Before granting an extension of time, the court may hold a hearing at which all parties to the proceedings may attend and be heard.

(10) Any extension of time shall be of such period as the court considers appropriate in the circumstances of the case.

(11) The decision of the court as to whether to grant the accused an extension of time shall be notified to all parties to the proceedings by the court officer.

Appointment of legal representative by the court

31.2.—(1) Where the court decides, in accordance with section 38(4) of the Youth Justice and Criminal Evidence Act 1999, to appoint a qualified legal representative, the court officer shall notify all parties to the proceedings of the name and address of the representative.

(2) An appointment made by the court under section 38(4) of the 1999 Act shall, except to such extent as the court may in any particular case determine, terminate at the conclusion of the cross-examination of the witness or witnesses in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

Appointment arranged by the accused

31.3.—(1) The accused may arrange for the qualified legal representative, appointed by the court under section 38(4) of the Youth Justice and Criminal Evidence Act 1999, to be appointed to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

(2) Where such an appointment is made—

(a)both the accused and the qualified legal representative appointed shall notify the court of the appointment; and

(b)the qualified legal representative shall, from the time of his appointment, act for the accused as though the arrangement had been made under section 38(2)(a) of the 1999 Act and shall cease to be the representative of the court under section 38(4).

(3) Where the court receives notification of the appointment either from the qualified legal representative or from the accused but not from both, the court shall investigate whether the appointment has been made, and if it concludes that the appointment has not been made, paragraph (2)(b) shall not apply.

(4) An accused may, notwithstanding an appointment by the court under section 38(4) of the 1999 Act, arrange for a legal representative to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

(5) Where the accused arranges for, or informs the court of his intention to arrange for, a legal representative to act for him, he shall notify the court, within such period as the court may allow, of the name and address of any person appointed to act for him.

(6) Where the court is notified within the time allowed that such an appointment has been made, any qualified legal representative appointed by the court in accordance with section 38(4) of the 1999 Act shall be discharged.

(7) The court officer shall, as soon as reasonably practicable after the court receives notification of an appointment under this rule or, where paragraph (3) applies, after the court is satisfied that the appointment has been made, notify all the parties to the proceedings—

(a)that the appointment has been made;

(b)where paragraph (4) applies, of the name and address of the person appointed; and

(c)that the person appointed by the court under section 38(4) of the 1999 Act has been discharged or has ceased to act for the court.

Prohibition on cross-examination of witness

31.4.—(1) An application by the prosecutor for the court to give a direction under section 36 of the Youth Justice and Criminal Evidence Act 1999 in relation to any witness must be sent to the court officer and at the same time a copy thereof must be sent by the applicant to every other party to the proceedings.

(2) In his application the prosecutor must state why, in his opinion—

(a)the evidence given by the witness is likely to be diminished if cross-examination is undertaken by the accused in person;

(b)the evidence would be improved if a direction were given under section 36(2) of the 1999 Act; and

(c)it would not be contrary to the interests of justice to give such a direction.

(3) On receipt of the application the court officer must refer it—

(a)if the trial has started, to the court of trial; or

(b)if the trial has not started when the application is received—

(i)to the judge or court designated to conduct the trial, or

(ii)if no judge or court has been designated for that purpose, to such judge or court designated for the purposes of hearing that application.

(4) Where a copy of the application is received by a party to the proceedings more than 14 days before the date set for the trial to begin, that party may make observations in writing on the application to the court officer, but any such observations must be made within 14 days of the receipt of the application and be copied to the other parties to the proceedings.

(5) A party to whom an application is sent in accordance with paragraph (1) who wishes to oppose the application must give his reasons for doing so to the court officer and the other parties to the proceedings.

(6) Those reasons must be notified—

(a)within 14 days of the date the application was served on him, if that date is more than 14 days before the date set for the trial to begin;

(b)if the trial has begun, in accordance with any directions issued by the court; or

(c)if neither paragraph (6)(a) nor (b) applies, before the date set for the trial to begin.

(7) Where the application made in accordance with paragraph (1) is made before the date set for the trial to begin and—

(a)is not contested by any party to the proceedings, the court may determine the application without a hearing;

(b)is contested by a party to the proceedings, the court must direct a hearing of the application.

(8) Where the application is made after the trial has begun—

(a)the application may be made orally; and

(b)the court may give such directions as it considers appropriate to deal with the application.

(9) Where a hearing of the application is to take place, the court officer shall notify each party to the proceedings of the time and place of the hearing.

(10) A party notified in accordance with paragraph (9) may be present at the hearing and be heard.

(11) The court officer must, as soon as possible after the determination of an application made in accordance with paragraph (1), give notice of the decision and the reasons for it to all the parties to the proceedings.

(12) A person making an oral application under paragraph (8)(a) must—

(a)give reasons why the application was not made before the trial commenced; and

(b)provide the court with the information set out in paragraph (2).

PART 32INTERNATIONAL CO-OPERATION

Contents of this Part
Notice required to accompany process served outside
  the United Kingdom and translationsrule 32.1
Proof of service outside the United Kingdomrule 32.2
Supply of copy of notice of request for assistance abroadrule 32.3
Persons entitled to appear and take part in proceedings
  before a nominated court, and exclusion of the publicrule 32.4
Record of proceedings to receive evidence
  before a nominated courtrule 32.5
Interpreter for the purposes of proceedings
  involving a television or telephone linkrule 32.6
Record of television link hearing before a nominated courtrule 32.7
Record of telephone link hearing before a nominated courtrule 32.8
Overseas recordrule 32.9
Overseas freezing ordersrule 32.10

Notice required to accompany process served outside the United Kingdom and translations

32.1.—(1) The notice which by virtue of section 3(4)(b) of the Crime (International Co-operation) Act 2003(389) (general requirements for service of process) must accompany any process served outside the United Kingdom must give the information specified in paragraphs (2) and (4) below.

(2) The notice must—

(a)state that the person required by the process to appear as a party or attend as a witness can obtain information about his rights in connection therewith from the relevant authority; and

(b)give the particulars specified in paragraph (4) about that authority.

(3) The relevant authority where the process is served—

(a)at the request of the prosecuting authority, is that authority; or

(b)at the request of the defendant or the prosecutor in the case of a private prosecution, is the court by which the process is served.

(4) The particulars referred to in paragraph (2) are—

(a)the name and address of the relevant authority, together with its telephone and fax numbers and e-mail address; and

(b)the name of a person at the relevant authority who can provide the information referred to in paragraph (2)(a), together with his telephone and fax numbers and e-mail address.

(5) The justices’ clerk or Crown Court officer must send, together with any process served outside the United Kingdom —

(a)any translation which is provided under section 3(3)(b) of the 2003 Act; and

(b)any translation of the information required to be given by this rule which is provided to him.

(6) In this rule, ‘process’ has the same meaning as in section 51(3) of the 2003 Act.

Proof of service outside the United Kingdom

32.2.—(1) A statement in a certificate given by or on behalf of the Secretary of State—

(a)that process has been served on any person under section 4(1) of the Crime (International Co-operation) Act 2003(service of process otherwise than by post);

(b)of the manner in which service was effected; and

(c)of the date on which process was served;

shall be admissible as evidence of any facts so stated.

(2) In this rule, ‘process’ has the same meaning as in section 51(3) of the 2003 Act.

Supply of copy of notice of request for assistance abroad

32.3.  Where a request for assistance under section 7 of the Crime (International Co-operation) Act 2003 is made by a justice of the peace or a judge exercising the jurisdiction of the Crown Court and is sent in accordance with section 8(1) of the 2003 Act, the justices’ clerk or the Crown Court officer shall send a copy of the letter of request to the Secretary of State as soon as practicable after the request has been made.

Persons entitled to appear and take part in proceedings before a nominated court, and exclusion of the public

32.4.  A court nominated under section 15(1) of the Crime (International Co-operation) Act 2003 (nominating a court to receive evidence) may—

(a)determine who may appear or take part in the proceedings under Schedule 1 to the 2003 Act before the court and whether a party to the proceedings is entitled to be legally represented; and

(b)direct that the public be excluded from those proceedings if it thinks it necessary to do so in the interests of justice.

Record of proceedings to receive evidence before a nominated court

32.5.—(1) Where a court is nominated under section 15(1) of the Crime (International Co-operation) Act 2003 the justices’ clerk or Crown Court officer shall enter in an overseas record—

(a)details of the request in respect of which the notice under section 15(1) of the 2003 Act was given;

(b)the date on which, and place at which, the proceedings under Schedule 1 to the 2003 Act in respect of that request took place;

(c)the name of any witness who gave evidence at the proceedings in question;

(d)the name of any person who took part in the proceedings as a legal representative or an interpreter;

(e)whether a witness was required to give evidence on oath or (by virtue of section 5 of the Oaths Act 1978(390)) after making a solemn affirmation; and

(f)whether the opportunity to cross-examine any witness was refused.

(2) When the court gives the evidence received by it under paragraph 6(1) of Schedule 1 to the 2003 Act to the court or authority that made the request or to the territorial authority for forwarding to the court or authority that made the request, the justices’ clerk or Crown Court officer shall send to the court, authority or territorial authority (as the case may be) a copy of an extract of so much of the overseas record as relates to the proceedings in respect of that request.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Interpreter for the purposes of proceedings involving a television or telephone link

32.6.—(1) This rule applies where a court is nominated under section 30(3) (hearing witnesses in the UK through television links) or section 31(4) (hearing witnesses in the UK by telephone) of the Crime (International Co-operation) Act 2003.

(2) Where it appears to the justices’ clerk or the Crown Court officer that the witness to be heard in the proceedings under Part 1 or 2 of Schedule 2 to the 2003 Act (‘the relevant proceedings’) is likely to give evidence in a language other than English, he shall make arrangements for an interpreter to be present at the proceedings to translate what is said into English.

(3) Where it appears to the justices’ clerk or the Crown Court officer that the witness to be heard in the relevant proceedings is likely to give evidence in a language other than that in which the proceedings of the court referred to in section 30(1) or, as the case may be, 31(1) of the 2003 Act (‘the external court’) will be conducted, he shall make arrangements for an interpreter to be present at the relevant proceedings to translate what is said into the language in which the proceedings of the external court will be conducted.

(4) Where the evidence in the relevant proceedings is either given in a language other than English or is not translated into English by an interpreter, the court shall adjourn the proceedings until such time as an interpreter can be present to provide a translation into English.

(5) Where a court in Wales understands Welsh—

(a)paragraph (2) does not apply where it appears to the justices’ clerk or Crown Court officer that the witness in question is likely to give evidence in Welsh;

(b)paragraph (4) does not apply where the evidence is given in Welsh; and

(c)any translation which is provided pursuant to paragraph (2) or (4) may be into Welsh instead of English.

Record of television link hearing before a nominated court

32.7.—(1) This rule applies where a court is nominated under section 30(3) of the Crime (International Co-operation) Act 2003.

(2) The justices’ clerk or Crown Court officer shall enter in an overseas record—

(a)details of the request in respect of which the notice under section 30(3) of the 2003 Act was given;

(b)the date on which, and place at which, the proceedings under Part 1 of Schedule 2 to that Act in respect of that request took place;

(c)the technical conditions, such as the type of equipment used, under which the proceedings took place;

(d)the name of the witness who gave evidence;

(e)the name of any person who took part in the proceedings as a legal representative or an interpreter; and

(f)the language in which the evidence was given.

(3) As soon as practicable after the proceedings under Part 1 of Schedule 2 to the 2003 Act took place, the justices’ clerk or Crown Court officer shall send to the external authority that made the request a copy of an extract of so much of the overseas record as relates to the proceedings in respect of that request.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Record of telephone link hearing before a nominated court

32.8.—(1) This rule applies where a court is nominated under section 31(4) of the Crime (International Co-operation) Act 2003.

(2) The justices’ clerk or Crown Court officer shall enter in an overseas record—

(a)details of the request in respect of which the notice under section 31(4) of the 2003 Act was given;

(b)the date, time and place at which the proceedings under Part 2 of Schedule 2 to the 2003 Act took place;

(c)the name of the witness who gave evidence;

(d)the name of any interpreter who acted at the proceedings; and

(e)the language in which the evidence was given.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Overseas record

32.9.—(1) The overseas records of a magistrates’ court shall be part of the register (within the meaning of section 150(1) of the Magistrates’ Courts Act 1980(391)).

(2) The overseas records of any court shall not be open to inspection by any person except—

(a)as authorised by the Secretary of State; or

(b)with the leave of the court.

[Note. As to the making of court records, see rule 5.4.]

Overseas freezing orders

32.10.—(1) This rule applies where a court is nominated under section 21(1) of the Crime (International Co-operation) Act 2003(392) to give effect to an overseas freezing order.

(2) Where the Secretary of State serves a copy of such an order on the court officer—

(a)the general rule is that the court will consider the order no later than the next business day;

(b)exceptionally, the court may consider the order later than that, but not more than 5 business days after service.

(3) The court must not consider the order unless—

(a)it is satisfied that the chief officer of police for the area in which the evidence is situated has had notice of the order; and

(b)that chief officer of police has had an opportunity to make representations, at a hearing if that officer wants.

(4) The court may consider the order—

(a)without a hearing; or

(b)at a hearing, in public or in private.

PART 33EXPERT EVIDENCE

Contents of this Part
Reference to expertrule 33.1
Expert’s duty to the courtrule 33.2
Content of expert’s reportrule 33.3
Service of expert evidencerule 33.4
Expert to be informed of service of reportrule 33.5
Pre-hearing discussion of expert evidencerule 33.6
Court’s power to direct that evidence is to be given by
  a single joint expertrule 33.7
Instructions to a single joint expertrule 33.8
Court’s power to vary requirements under this Partrule 33.9

[Note. For the use of an expert report as evidence, see section 30 of the Criminal Justice Act 1988(393).]

Reference to expert

33.1.  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(394). It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(395), under Part III of the Mental Health Act 1983(396) or under Part 12 of the Criminal Justice Act 2003(397). Those Acts contain requirements about the qualification of medical experts.]

Expert’s duty to the court

33.2.—(1) An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his expertise.

(2) This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.

(3) This duty includes an obligation 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.

Content of expert’s report

33.3.—(1) 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 his own opinion;

(g)if the expert is not able to give his opinion without qualification, state the qualification;

(h)contain a summary of the conclusions reached;

(i)contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty; and

(j)contain the same declaration of truth as a witness statement.

(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary by an expert of his conclusions served in advance of that expert’s report.

[Note. Part 27 contains rules about witness statements. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(398) and section 5B of the Magistrates’ Courts Act 1980(399). A party who accepts another party’s expert’s conclusions may admit them as facts under section 10 of the Criminal Justice Act 1967(400). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003(401).]

Service of expert evidence

33.4.—(1) A party who wants to introduce expert evidence must—

(a)serve it on—

(i)the court officer, and

(ii)each other party;

(b)serve it—

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

(ii)with any application in support of which that party relies on that evidence; and

(c)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.

(2) A party may not introduce expert evidence if that party has not complied with this rule, unless–

(a)every other party agrees; or

(b)the court gives permission.

[Note. Under section 81 of the Police and Criminal Evidence Act 1984(402), and under section 20(3) of the Criminal Procedure and Investigations Act 1996(403), rules may—

(a)require the disclosure of expert evidence before it is introduced as part of a party’s case; and

(b)prohibit its introduction without the court’s permission, if it was not disclosed as required.]

Expert to be informed of service of report

33.5.  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

33.6.—(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(404); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(405); and section 8A of the Magistrates’ Courts Act 1980(406).]

Court’s power to direct that evidence is to be given by a single joint expert

33.7.—(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

33.8.—(1) Where the court gives a direction under rule 33.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.

(2) When a co-defendant gives instructions to the expert he must, at the same time, send a copy of the instructions to the other co-defendant(s).

(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

33.9.—(1) The court may—

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

(b)allow the introduction of expert evidence which omits a detail required by this Part.

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

(a)apply when serving the expert evidence for which it is required; and

(b)explain the delay.

PART 34HEARSAY EVIDENCE

Contents of this Part
When this Part appliesrule 34.1
Notice to introduce hearsay evidencerule 34.2
Opposing the introduction of hearsay evidencerule 34.3
Unopposed hearsay evidencerule 34.4
Court’s power to vary requirements under this Partrule 34.5

When this Part applies

34.1.  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(407).

[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

34.2.—(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 34.2(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 (408) (expert evidence: preparatory work): but see Part 33 for the procedure where a party wants to introduce such evidence.]

Opposing the introduction of hearsay evidence

34.3.—(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 34.2,

(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 34.2 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(409) (ruling at pre-trial hearing in a magistrates’ court), or

(ii)section 9 of the Criminal Justice Act 1987(410), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(411) (ruling at preparatory or other pre-trial hearing in the Crown Court).

Unopposed hearsay evidence

34.4.—(1) This rule applies where—

(a)a party has served notice to introduce hearsay evidence under rule 34.2; and

(b)no other party has applied to the court to determine an objection to the introduction of the evidence.

(2) The court will 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

34.5.—(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 35EVIDENCE OF BAD CHARACTER

Contents of this Part
When this Part appliesrule 35.1
Content of application or noticerule 35.2
Application to introduce evidence of a non-defendant’s bad characterrule 35.3
Notice to introduce evidence of a defendant’s bad characterrule 35.4
Reasons for decisionsrule 35.5
Court’s power to vary requirements under this Partrule 35.6

When this Part applies

35.1.  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(412).

[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

35.2.—(1) A party who wants to introduce evidence of bad character must—

(a)make an application under rule 35.3, where it is evidence of a non-defendant’s bad character;

(b)give notice under rule 35.4, 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 35.3 and 35.4.

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(413) (conviction in the United Kingdom or European Union); or

(b)section 7 of the Evidence Act 1851(414) (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 (415), a party may admit a matter of fact.]

Application to introduce evidence of a non-defendant’s bad character

35.3.—(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(416) (ruling at pre-trial hearing in a magistrates’ court), or

(ii)section 9 of the Criminal Justice Act 1987(417), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(418) (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 35.5 (reasons for decisions must be given in public).]

Notice to introduce evidence of a defendant’s bad character

35.4.—(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 35.5 (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

35.5.  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

35.6.—(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 36EVIDENCE OF A COMPLAINANT’S PREVIOUS SEXUAL BEHAVIOUR

Contents of this Part
When this Part appliesrule 36.1
Application for permission
  to introduce evidence or cross-examinerule 36.2
Content of applicationrule 36.3
Service of applicationrule 36.4
Reply to applicationrule 36.5
Application for special measuresrule 36.6
Court’s power to vary requirements under this Partrule 36.7

[Note: Section 41 of the Youth Justice and Criminal Evidence Act 1999(419) 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(420), which among other things defines ‘sexual behaviour’ and ‘sexual offence’;

(b)section 43(421), 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.]

When this Part applies

36.1.  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.

Application for permission to introduce evidence or cross-examine

36.2.  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(422) (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(423); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(424); and section 8A of the Magistrates’ Courts Act 1980(425).]

Content of application

36.3.  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

36.4.  The defendant must serve the application on the court officer and all other parties.

Reply to application

36.5.  A party who wants to make representations about an application under rule 36.2 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

36.6.  If the court allows an application under rule 36.2 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(426). An application for a special measures direction may be made by a party under Part 29 or the court may make a direction on its own initiative. Rule 29.13(2) sets the usual time limit (14 days) for opposing a special measures application.]

Court’s power to vary requirements under this Part

36.7.  The court may shorten or extend (even after it has expired) a time limit under this Part.

PART 37TRIAL AND SENTENCE IN A MAGISTRATES’ COURT

Contents of this Part
When this Part appliesrule 37.1
General rulesrule 37.2
Procedure on plea of not guiltyrule 37.3
Evidence of a witness in personrule 37.4
Evidence of a witness in writingrule 37.5
Evidence by admissionrule 37.6
Procedure on plea of guiltyrule 37.7
Written guilty plea: special rulesrule 37.8
Application to withdraw a guilty plearule 37.9
Procedure if the court convictsrule 37.10
Procedure where a party is absentrule 37.11
Provision of documents for the courtrule 37.12
Place of trialrule 37.13
Duty of justices’ legal adviserrule 37.14
Duty of court officerrule 37.15

[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

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

(a)the court tries a case; or

(b)the defendant pleads guilty.

(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(427). In relation to a defendant under 18, they are contained in sections 45, 46 and 48 of the Children and Young Persons Act 1933(428).

See also section 18 of the Children and Young Persons Act 1963(429), section 47 of the Crime and Disorder Act 1998(430) and section 9 of the Powers of Criminal Courts (Sentencing) Act 2000(431).

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(432) and The Justices of the Peace (Size and Chairmanship of Bench) Rules 2005(433), 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 37.11(3)(e) 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 The Youth Courts (Constitution of Committees and Right to Preside) Rules 2007(434), 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(435), where two or more justices are present one may act on behalf of all.

Section 59 of the Children and Young Persons Act 1933(436) 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.

See also Part 44 (Breach, revocation and amendment of community and other orders). Rule 44.4 (Procedure on application by responsible officer) applies rules in this Part to the procedure with which that rule deals.]

General rules

37.2.—(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.

[Note. See sections 10, 27A, 29 and 121 of the Magistrates’ Courts Act 1980(437) 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 37.2(2) will have taken place.

The court’s powers to impose reporting restrictions include those under—

(a)section 39 of the Children and Young Persons Act 1933(438) (identification of any defendant or witness under 18);

(b)section 4(2) of the Contempt of Court Act 1981(439) (information that may prejudice the administration of justice);

(c)section 11 of the 1981 Act (information about a matter withheld from the public); and

(d)section 46 of the Youth Justice and Criminal Evidence Act 1999(440) (identification of an adult witness).

Reporting restrictions that apply in all cases include those under—

(a)section 49 of the Children and Young Persons Act 1933(441) (identification of any defendant or witness under 18 involved in proceedings in a youth court);

(b)section 1 of the Sexual Offences (Amendment) Act 1992(442) (identification of the complainant of a sexual offence); and

(c)section 47 of the Youth Justice and Criminal Evidence Act 1999(443) (special measures direction or application for such a direction).

Under section 34A of the Children and Young Persons Act 1933(444), 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 2 contains rules allowing a parent, guardian or other supporting adult to help a defendant under 18.]

Procedure on plea of not guilty

37.3.—(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 civil behaviour order,

(ii)a costs order.

[Note. See section 9 of the Magistrates’ Courts Act 1980(445).

Under section 37(3) of the Mental Health Act 1983(446), 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(447), 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(448) and section 3 of the Criminal Evidence Act 1898(449) restrict the circumstances in which the prosecutor may make final representations without the court’s permission.

See rule 37.10 for the procedure if the court convicts the defendant.

Part 50 contains rules about civil behaviour orders after verdict or finding.]

Evidence of a witness in person

37.4.—(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(450) 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(451).

Sections 1, 3, 5 and 6 of the Oaths Act 1978(452) 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(453) provides that in a youth court, and where a witness in any court is under 18, an oath must include the words ‘I promise’ in place of the words ‘I swear’. Under sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999, a person may give evidence without taking an oath, or making an affirmation, where that person (i) is under 14 or (ii) has an insufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.

The questions that may be put to a witness—

(a)by a party are governed by rules of evidence, for example—

(i)the rule that a question must be relevant to what is in issue,

(ii)the rule that the party who calls a witness must not ask that witness a leading question about what is in dispute, and

(iii)the rule that a party who calls a witness may contradict that witness only in limited circumstances (see section 3 of the Criminal Procedure Act 1865)(454);

(b)by the justices’ legal adviser or the court are in their discretion, but that is subject to—

(i)rules of evidence, and

(ii)rule 1.3 (the application by the court of the overriding objective).

Under sections 34, 35 and 36 of the Youth Justice and Criminal Evidence Act 1999(455), a defendant who is not represented may not cross-examine a witness where—

(a)the defendant is charged with a sexual offence against the witness;

(b)the defendant is charged with a sexual offence, or one of certain other offences, and the witness is a child; or

(c)the court prohibits the defendant from cross-examining the witness.

Part 31 contains rules relevant to restrictions on cross-examination.

Under section 139 of the Criminal Justice Act 2003(456), a witness may refresh his or her memory by referring to a record made before the hearing, either contained in a document made or verified by the witness, or in the transcript of a sound recording, if—

(a)the witness states that it records his or her recollection of events at that earlier time; and

(b)that recollection is likely to have been significantly better when the record was made than at the time of the hearing.

In some circumstances, a witness may give evidence in accordance with special measures directed by the court under section 19 of the Youth Justice and Criminal Evidence Act 1999(457), or by live link under section 32 of the Criminal Justice Act 1988(458) or section 51 of the Criminal Justice Act 2003. Parts 29 and 30 contain relevant rules.]

Evidence of a witness in writing

37.5.—(1) This rule applies where a party wants to introduce in evidence the written statement of a witness to which applies—

(a)Part 27 (Witness statements);

(b)Part 33 (Expert evidence); or

(c)Part 34 (Hearsay evidence).

(2) If the court admits such evidence—

(a)each relevant part of the statement must be read or summarised aloud; or

(b)the court must read the statement and its gist must be summarised aloud.

[Note. See Parts 27, 33 and 34, and the other legislation to which those Parts apply. The admissibility of evidence that a party introduces is governed by rules of evidence.]

Evidence by admission

37.6.—(1) This rule applies where—

(a)a party introduces in evidence a fact admitted by another party; or

(b)parties jointly admit a fact.

(2) Unless the court otherwise directs, a written record must be made of the admission.

[Note. See section 10 of the Criminal Justice Act 1967(459). The admissibility of evidence that a party introduces is governed by rules of evidence.]

Procedure on plea of guilty

37.7.—(1) This rule applies if—

(a)the defendant pleads guilty; and

(b)the court is satisfied that the plea represents a clear acknowledgement of guilt.

(2) The court may convict the defendant without receiving evidence.

[Note. See section 9 of the Magistrates’ Courts Act 1980(460).]

Written guilty plea: special rules

37.8.—(1) This rule applies where—

(a)the offence alleged—

(i)can be tried only in a magistrates’ court, and

(ii)is not one specified under section 12(1)(a) of the Magistrates’ Courts Act 1980(461);

(b)the defendant is at least 16 years old;

(c)the prosecutor has served on the defendant—

(i)the summons or requisition,

(ii)the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence,

(iii)a notice that the procedure set out in this rule applies, and

(iv)a notice for the defendant’s use if the defendant wants to plead guilty without attending court; and

(d)the prosecutor has served on the court officer—

(i)copies of those documents, and

(ii)a certificate of service of those documents on the defendant.

(2) A defendant who wants to plead guilty without attending court must, before the hearing date specified in the summons or requisition—

(a)serve a notice of guilty plea on the court officer; and

(b)include with that notice any representations that the defendant wants the court to consider on that date.

(3) A defendant who wants to withdraw such a notice must notify the court officer in writing before the hearing date.

(4) If the defendant does not withdraw the notice before the hearing date, then on or after that date—

(a)to establish the facts of the offence and other information about the defendant, the court may take account only of the material and any representations served under this rule (and rule 37.10(3) to (9) inclusive must be read accordingly);

(b)unless the court otherwise directs, the prosecutor need not attend; and

(c)the court may accept such a guilty plea and pass sentence in the defendant’s absence.

(5) With the defendant’s agreement, the court may deal with the case in the same way as under paragraph (4) where the defendant—

(a)is present; and

(b)has served a notice of guilty plea under paragraph (2); or

(c)pleads guilty there and then.

[Note. The procedure set out in this rule is prescribed by sections 12 and 12A of the Magistrates’ Courts Act 1980(462). Under section 12(1)(a), the Secretary of State can specify offences to which the procedure will not apply. None has been specified.

Under section 1 of the Magistrates’ Courts Act 1980(463) a justice of the peace may issue a summons requiring a defendant to attend court to answer an allegation of an offence.

Under section 29 of the Criminal Justice Act 2003(464) a public prosecutor listed in that section may issue a written charge alleging an offence and a requisition requiring a defendant to attend court. Part 7 contains relevant rules.

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

Application to withdraw a guilty plea

37.9.—(1) This rule applies where the defendant wants to withdraw a guilty plea.

(2) The defendant must apply to do so—

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

(b)before sentence.

(3) Unless the court otherwise directs, the application must be in writing and the defendant must serve it on—

(a)the court officer; and

(b)the prosecutor.

(4) The application must—

(a)explain why it would be unjust not to allow the defendant to withdraw the guilty plea;

(b)identify—

(i)any witness that the defendant wants to call, and

(ii)any other proposed evidence; and

(c)say whether the defendant waives legal professional privilege, giving any relevant name and date.

Procedure if the court convicts

37.10.—(1) This rule applies if the court convicts the defendant.

(2) The court—

(a)may exercise its power to require—

(i)a statement of the defendant’s financial circumstances,

(ii)a pre-sentence report; and

(b)may (and in some circumstances must) remit the defendant to a youth court for sentence where—

(i)the defendant is under 18, and

(ii)the convicting court is not itself a youth court.

(3) The prosecutor must—

(a)summarise the prosecution case, if the sentencing court has not heard evidence;

(b)identify any offence to be taken into consideration in sentencing;

(c)provide information relevant to sentence; and

(d)where it is likely to assist the court, identify any other matter relevant to sentence, including—

(i)aggravating and mitigating factors,

(ii)the legislation applicable, and

(iii)any sentencing guidelines, or guideline cases.

(4) The defendant must provide information relevant to sentence, including details of financial circumstances.

(5) Where the defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case—

(a)the defendant must set out that basis in writing, identifying what is in dispute;

(b)the court may invite the parties to make representations about whether the dispute is material to sentence; and

(c)if the court decides that it is a material dispute, the court will—

(i)invite such further representations or evidence as it may require, and

(ii)decide the dispute.

(6) Where the court has power to order the endorsement of the defendant’s driving licence, or power to order the disqualification of the defendant from holding or obtaining one—

(a)if other legislation so permits, a defendant who wants the court not to exercise that power must introduce the evidence or information on which the defendant relies;

(b)the prosecutor may introduce evidence; and

(c)the parties may make representations about that evidence or information.

(7) Before the court passes sentence—

(a)the court must—

(i)give the defendant an opportunity to make representations and introduce evidence relevant to sentence, and

(ii)where the defendant is under 18, give the defendant’s parents, guardian or other supporting adult, if present, such an opportunity as well; and

(b)the justices’ legal adviser or the court must elicit any further information relevant to sentence that the court may require.

(8) If the court requires more information, it may exercise its power to adjourn the hearing for not more than—

(a)3 weeks at a time, if the defendant will be in custody; or

(b)4 weeks at a time.

(9) When the court has taken into account all the evidence, information and any report available, the general rule is that the court will—

(a)pass sentence there and then;

(b)explain the sentence, the reasons for it, and its effect, in terms the defendant can understand (with help, if necessary); and

(c)consider exercising any power it has to make a costs or other order.

(10) Despite the general rule—

(a)the court must adjourn the hearing if—

(i)the case started with a summons or requisition, and the defendant is absent, and

(ii)the court considers passing a custodial sentence, or

(iii)the court considers imposing a disqualification (unless it has already adjourned the hearing to give the defendant an opportunity to attend);

(b)the court may exercise any power it has to—

(i)commit the defendant to the Crown Court for sentence (and in some cases it must do so), or

(ii)defer sentence for up to 6 months.

[Note. See sections 9, 10 and 11 of the Magistrates’ Courts Act 1980(465), and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003(466).

Under section 11(3A) of the 1980 Act, a custodial sentence passed in the defendant’s absence does not take effect until the defendant is brought before the court.

Under sections 57D and 57E of the Crime and Disorder Act 1998(467), the court may require a defendant to attend a sentencing hearing by live link.

Under section 162 of the Criminal Justice Act 2003(468), the court may require a defendant who is an individual to provide a statement of financial circumstances if the defendant—

(a)serves notice of guilty plea, where rule 37.8 applies; or

(b)is convicted.

Under section 20A of the Criminal Justice Act 1991(469), it is an offence for a defendant knowingly or recklessly to make a false or incomplete statement of financial circumstances, or to fail to provide such a statement, in response to a request by a court officer on behalf of the court.

Under section 156 of the Criminal Justice Act 2003(470), the general rule (subject to exceptions) is that the court must obtain and consider a pre-sentence report—

(a)where it is considering a custodial sentence or a community sentence;

(b)where it thinks the defendant may pose a significant risk of causing serious harm to the public by further offending.

Under section 159 of the Criminal Justice Act 2003(471), where the court obtains a written pre-sentence report about a defendant who is under 18, it may direct that information in it must be withheld, if it would be likely to create a risk of significant harm to the defendant.

For the circumstances in which a magistrates’ court may (and in some cases must) remit the defendant to a youth court for sentence, see section 8 of the Powers of Criminal Courts (Sentencing) Act 2000(472).

The Sentencing Council may issue sentencing guidelines under section 120 of the Coroners and Justice Act 2009(473).

For the circumstances in which a court may (and in some cases must) order the endorsement of a defendant’s driving licence, or the disqualification of a defendant from holding or obtaining one, see sections 34, 35 and 44 of the Road Traffic Offenders Act 1988(474). Under that legislation, in some circumstances the court has discretion not to make such an order.

The evidence that may be introduced is subject to rules of evidence.

In addition to the specific powers to which this rule applies, the court has a general power to adjourn a trial: see rule 37.2.

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence, see sections 3, 3A, 3B, 3C, 4, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 2000(475).

Under section 1 of the 2000 Act(476), if (among other things) the defendant consents, the court may defer sentence for up to 6 months, for the purpose of allowing it to take account of the defendant’s conduct after conviction, or any change in the defendant’s circumstances.]

Procedure where a party is absent

37.11.—(1) This rule—

(a)applies where a party is absent; but

(b)does not apply where the defendant has served a notice of guilty plea under rule 37.8 (written guilty plea: special rules).

(2) Where the prosecutor is absent, the court may—

(a)if it has received evidence, deal with the case as if the prosecutor were present; and

(b)in any other case—

(i)enquire into the reasons for the prosecutor’s absence, and

(ii)if satisfied there is no good reason, exercise its power to dismiss the allegation.

(3) Where the defendant is absent—

(a)the general rule is that the court will proceed as if the defendant—

(i)were present, and

(ii)had pleaded not guilty (unless a plea already has been taken)

and the court must give reasons if it does not do so; but

(b)the general rule does not apply if the defendant is under 18;

(c)the general rule is subject to the court being satisfied that—

(i)any summons or requisition was served on the defendant a reasonable time before the hearing, or

(ii)in a case in which the hearing has been adjourned, the defendant had reasonable notice of where and when it would resume;

(d)the general rule is subject also to rule 37.10(10)(a) (restrictions on passing sentence in the defendant’s absence); and

(e)the hearing must be treated as if it had not taken place at all if—

(i)the case started with a summons or requisition,

(ii)the defendant makes a statutory declaration of not having found out about the case until after the hearing began, and

(iii)the defendant serves that declaration on the court officer not more than 21 days after the date of finding out about the case, unless the court extends that time limit.

(4) Where the defendant is absent, the court—

(a)must exercise its power to issue a warrant for the defendant’s arrest, if it passes a custodial sentence; and

(b)may exercise its power to do so in any other case, if it does not apply the general rule in paragraph (3)(a) of this rule about proceeding in the defendant’s absence.

[Note. See sections 11, 14, 15 and 16 of the Magistrates’ Courts Act 1980(477).

Under section 27 of the 1980 Act, where a magistrates’ court dismisses an allegation of 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 dismissal has the same effect as an acquittal in the Crown Court.

Under section 14(3) of the 1980 Act, a single justice of the peace may extend the time limit for serving a declaration to which rule 37.11(3)(e) applies.

Under section 11 of the 1980 Act, the court may pass a custodial sentence in the defendant’s absence if the case started with the defendant’s arrest and charge (and not with a summons or requisition). Section 11(3A) requires that, in that event, the defendant must be brought before the court before being taken to a prison or other institution to begin serving that sentence. Under section 7(1) of the Bail Act 1976(478), the court has power to issue a warrant for the arrest of a defendant released on bail who has failed to attend court when due to do so.

Under section 13 of the 1980 Act(479), the court has power to issue a warrant for the arrest of an absent defendant, instead of proceeding, where—

(1) the case started with—

(a)the defendant’s arrest and charge, or

(b)a summons or requisition, if—

(i)the court is satisfied that that summons or requisition was served on the defendant a reasonable time before the hearing, or

(ii)the defendant was present when the hearing was arranged; and

(2) the offence is punishable with imprisonment; or

(3) the defendant has been convicted and the court considers imposing a disqualification.

The Practice Direction sets out a form of declaration for use in connection with rule 37.11(3)(e)(ii).]

Provision of documents for the court

37.12.—(1) This rule applies where a party—

(a)introduces in evidence any document; or

(b)relies on any other document in the presentation of that party’s case.

(2) Unless the court otherwise directs, that party must supply sufficient copies of such a document for—

(a)each other party;

(b)the court; and

(c)the justices’ legal adviser.

Place of trial

37.13.—(1) Unless the court otherwise directs, the hearing must take place in a courtroom provided by the Lord Chancellor.

(2) Where the hearing takes place in Wales—

(a)any party or witness may use the Welsh language; and

(b)if practicable, at least one member of the court must be Welsh-speaking.

[Note. See section 3 of the Courts Act 2003(480) and section 22 of the Welsh Language Act 1993(481).

In some circumstances the court may conduct all or part of the hearing outside a courtroom. The members of the court may discuss the verdict and sentence outside the courtroom.]

Duty of justices’ legal adviser

37.14.—(1) A justices’ legal adviser must attend, unless the court—

(a)includes a District Judge (Magistrates’ Courts); and

(b)otherwise directs.

(2) A justices’ legal adviser must—

(a)give the court legal advice; and

(b)if necessary, attend the members of the court outside the courtroom to give such advice; but

(c)inform the parties of any such advice given outside the courtroom.

(3) A justices’ legal adviser must—

(a)assist an unrepresented defendant;

(b)assist the court by—

(i)making a note of the substance of any oral evidence or representations, to help the court recall that information,

(ii)if the court rules inadmissible part of a written statement introduced in evidence, marking that statement in such a way as to make that clear,

(iii)ensuring that an adequate record is kept of the court’s decisions and the reasons for them, and

(iv)making any announcement, other than of the verdict or sentence.

(4) Where the defendant has served a notice of guilty plea to which rule 37.8 (written guilty plea: special rules) applies, a justices’ legal adviser must read aloud to the court—

(a)the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence (or summarise any written statement included in that material, if the court so directs); and

(b)any written representations by the defendant.

[Note. Section 28 of the Courts Act 2003(482) provides for the functions of a justices’ legal adviser. See also section 12 of the Magistrates’ Courts Act 1980(483).]

Duty of court officer

37.15.  The court officer must—

(a)serve on each party notice of where and when an adjourned hearing will resume, unless—

(i)the party was present when that was arranged, or

(ii)the defendant has served a notice of guilty plea to which rule 37.8 applies, and the adjournment is for not more than 4 weeks;

(b)if the reason for the adjournment was to postpone sentence, include that reason in any such notice to the defendant;

(c)unless the court otherwise directs, make available to the parties any written report to which rule 37.10 applies;

(d)where the court has ordered a defendant to provide information under section 25 of the Road Traffic Offenders Act 1988(484), serve on the defendant notice of that order unless the defendant was present when it was made;

(e)serve on the prosecutor—

(i)any notice of guilty plea to which rule 37.8 applies, and

(ii)any declaration served under rule 37.11(3)(e) that the defendant did not know about the case;

(f)record in the magistrates’ court register the court’s reasons for not proceeding in the defendant’s absence where rule 37.11(3)(a) applies; and

(g)give the court such other assistance as it requires.

[Note. See sections 10, 11 and 12 of the Magistrates’ Courts Act 1980(485).

Under section 25 of the Road Traffic Offenders Act 1988, where the court does not know a defendant’s sex or date of birth, then on convicting the defendant of an offence involving obligatory or discretionary disqualification, the court must order the defendant to provide that information.

Under Part 5, the magistrates’ court officer must record in the court register details of a case and of the court’s decisions.]

PART 38

[Note. There are no rules in this Part.]

PART 39TRIAL ON INDICTMENT

Contents of this Part
Time limits for beginning of trialsrule 39.1
Appeal against refusal to excuse from jury service or
  to defer attendancerule 39.2
Application to change a plea of guiltyrule 39.3

Time limits for beginning of trials

39.1.  The periods set out for the purposes of section 77(2)(a) and (b) of the Senior Courts Act 1981(486) shall be 14 days and 8 weeks respectively and accordingly, the trial of a person committed by a magistrates’ court—

(a)shall not begin until the expiration of 14 days beginning with the date of his committal, except with his consent and the consent of the prosecution; and

(b)shall, unless the Crown Court has otherwise ordered, begin not later than the expiration of 8 weeks beginning with the date of his committal.

Appeal against refusal to excuse from jury service or to defer attendance

39.2.—(1) A person summoned under the Juries Act 1974(487) for jury service may appeal in accordance with the provisions of this rule against any refusal of the appropriate court officer to excuse him under section 9(2), or to defer his attendance under section 9A(1), of that Act.

(2) Subject to paragraph (3), an appeal under this rule shall be heard by the Crown Court.

(3) Where the appellant is summoned under the 1974 Act to attend before the High Court in Greater London the appeal shall be heard by a judge of the High Court and where the appellant is summoned under that Act to attend before the High Court outside Greater London or before a county court and the appeal has not been decided by the Crown Court before the day on which the appellant is required by the summons to attend, the appeal shall be heard by the court before which he is summoned to attend.

(4) An appeal under this rule shall be commenced by the appellant’s giving notice of appeal to the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, and such notice shall be in writing and shall specify the matters upon which the appellant relies as providing good reason why he should be excused from attending in pursuance of the summons or why his attendance should be deferred.

(5) The court shall not dismiss an appeal under this rule unless the appellant has been given an opportunity of making representations.

(6) Where an appeal under this rule is decided in the absence of the appellant, the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, shall notify him of the decision without delay.

Application to change a plea of guilty

39.3.—(1) The defendant must apply as soon as practicable after becoming aware of the grounds for making an application to change a plea of guilty, and may only do so before the final disposal of the case, by sentence or otherwise.

(2) Unless the court otherwise directs, the application must be in writing and it must—

(a)set out the reasons why it would be unjust for the guilty plea to remain unchanged;

(b)indicate what, if any, evidence the defendant wishes to call;

(c)identify any proposed witness; and

(d)indicate whether legal professional privilege is waived, specifying any material name and date.

(3) The defendant must serve the written application on—

(a)the court officer; and

(b)the prosecutor.

PART 40TAINTED ACQUITTALS

Contents of this Part
Time of certificationrule 40.1
Form of certification in the Crown Courtrule 40.2
Service of a copy of the certificationrule 40.3
Entry in register or records in relation to the conviction
  which occasioned certificationrule 40.4
Entry in the register or records in relation to the acquittalrule 40.5
Display of copy certification formrule 40.6
Entry in the register or records in relation to
  decision of High Courtrule 40.7
Display of copy of notice received from High Courtrule 40.8

Time of certification

40.1.  Where a person is convicted of an offence as referred to in section 54(1)(b) of the Criminal Procedure and Investigations Act 1996(488) and it appears to the court before which the conviction has taken place that the provisions of section 54(2) are satisfied, the court shall make the certification referred to in section 54(2) at any time following conviction but no later than—

(a)immediately after the court sentences or otherwise deals with that person in respect of the offence; or

(b)where the court, being a magistrates’ court, commits that person to the Crown Court, or remits him to another magistrates’ court, to be dealt with in respect of the offence, immediately after he is so committed or remitted, as the case may be; or

(c)where that person is a child or young person and the court, being the Crown Court, remits him to a youth court to be dealt with in respect of the offence, immediately after he is so remitted.

Form of certification in the Crown Court

40.2.  A certification referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996 by the Crown Court shall be drawn up in the form set out in the Practice Direction.

Service of a copy of the certification

40.3.  Where a magistrates’ court or the Crown Court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, serve a copy on the acquitted person referred to in the certification, on the prosecutor in the proceedings which led to the acquittal, and, where the acquittal has taken place before a court other than, or at a different place to, the court where the certification has been made, on—

(a)the clerk of the magistrates’ court before which the acquittal has taken place; or

(b)the Crown Court officer at the place where the acquittal has taken place.

Entry in register or records in relation to the conviction which occasioned certification

40.4.  A clerk of a magistrates’ court or an officer of a Crown Court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 shall enter in the register or records, in relation to the conviction which occasioned the certification, a note of the fact that certification has been made, the date of certification, the name of the acquitted person referred to in the certification, a description of the offence of which the acquitted person has been acquitted, the date of the acquittal, and the name of the court before which the acquittal has taken place.

[Note. For the general requirement to make court records, see rule 5.4.]

Entry in the register or records in relation to the acquittal

40.5.  The court officer of the court before which an acquittal has taken place shall, as soon as practicable after receipt of a copy of a form recording a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 relating to the acquittal, enter in the register or records a note that the certification has been made, the date of the certification, the name of the court which has made the certification, the name of the person whose conviction occasioned the making of the certification, and a description of the offence of which that person has been convicted. Where the certification has been made by the same court as the court before which the acquittal has occurred, sitting at the same place, the entry shall be made as soon as practicable after the making of the certification. In the case of an acquittal before a magistrates’ court, the entry in the register shall be signed by the clerk of the court.

[Note. For the general requirement to make court records, see rule 5.4.]

Display of copy certification form

40.6.—(1) Where a court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, display a copy of that form at a prominent place within court premises to which place the public has access.

(2) Where an acquittal has taken place before a court other than, or at a different place to, the court which has made the certification under section 54(2) of the 1996 Act in relation to the acquittal, the court officer at the court where the acquittal has taken place shall, as soon as practicable after receipt of a copy of the form recording the certification, display a copy of it at a prominent place within court premises to which place the public has access.

(3) The copy of the form referred to in paragraph (1), or the copy referred to in paragraph (2), shall continue to be displayed as referred to, respectively, in those paragraphs at least until the expiry of 28 days from, in the case of paragraph (1), the day on which the certification was made, or, in the case of paragraph (2), the day on which the copy form was received at the court.

Entry in the register or records in relation to decision of High Court

40.7.—(1) The court officer at the court where an acquittal has taken place shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of the Criminal Procedure and Investigations Act 1996 quashing the acquittal, or of a decision not to make such an order, enter in the register or records, in relation to the acquittal, a note of the fact that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(2) The court officer of the court which has made a certification under section 54(2) of the 1996 Act shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of that Act quashing the acquittal referred to in the certification, or of a decision not to make such an order, enter in the register or records, in relation to the conviction which occasioned the certification, a note that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(3) The entries in the register of a magistrates’ court referred to, respectively, in paragraphs (1) and (2) above shall be signed by the magistrates’ court officer.

[Note. For the general requirement to make court records, see rule 5.4. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998(489).]

Display of copy of notice received from High Court

40.8.—(1) Where the court officer of a court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 or before which an acquittal has occurred to which such a certification refers, receives from the Administrative Court Office notice of an order quashing the acquittal concerned, or notice of a decision not to make such an order, he shall, as soon as practicable after receiving the notice, display a copy of it at a prominent place within court premises to which place the public has access.

(2) The copy notice referred to in paragraph (1) shall continue to be displayed as referred to in that paragraph at least until the expiry of 28 days from the day on which the notice was received at the court.

[Note. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998.]

PART 41RETRIAL FOLLOWING ACQUITTAL FOR SERIOUS OFFENCE

Contents of this Part
Interpretationrule 41.1
Notice of a section 76 applicationrule 41.2
Response of the acquitted personrule 41.3
Examination of witnesses or evidence by the Court of Appealrule 41.4
Bail or custody hearings in the Crown Courtrule 41.5
Further provisions regarding bail and custody in the Crown Courtrule 41.6
Bail or custody orders in the Court of Appealrule 41.7
Application for restrictions on publicationrule 41.8
Variation or revocation of restrictions on publicationrule 41.9
Powers exercisable by a single judge of the Court of Appealrule 41.10
Powers exercisable by the Registrarrule 41.11
Determination by full courtrule 41.12
Notice of the determination of the applicationrule 41.13
Notice of application to set aside order for retrialrule 41.14
Leave to arraignrule 41.15
Abandonment of the applicationrule 41.16

Interpretation

41.1.  In this Part, ‘section 76 application’ means an application made by a prosecutor under section 76(1) or (2) of the Criminal Justice Act 2003(490).

Notice of a section 76 application

41.2.—(1) A prosecutor who wants to make a section 76 application must serve notice of that application in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) That notice shall, where practicable, be accompanied by―

(a)relevant witness statements which are relied upon as forming new and compelling evidence of guilt of the acquitted person as well as any relevant witness statements from the original trial;

(b)any unused statements which might reasonably be considered capable of undermining the section 76 application or of assisting an acquitted person’s application to oppose that application under rule 41.3;

(c)a copy of the indictment and paper exhibits from the original trial;

(d)copies of the transcript of the summing up and any other relevant transcripts from the original trial; and

(e)any other documents relied upon to support the section 76 application.

(3) The prosecutor must, as soon as practicable after service of that notice on the acquitted person, file with the Registrar a witness statement or certificate of service which exhibits a copy of that notice.

Response of the acquitted person

41.3.—(1) An acquitted person who wants to oppose a section 76 application must serve a response in the form set out in the Practice Direction on the Registrar and the prosecutor which―

(a)indicates if he is also seeking an order under section 80(6) of the Criminal Justice Act 2003(491) for―

(i)the production of any document, exhibit or other thing, or

(ii)a witness to attend for examination and to be examined before the Court of Appeal; and

(b)exhibits any relevant documents.

(2) The acquitted person must serve that response not more than 28 days after receiving notice under rule 41.2.

(3) The Court of Appeal may extend the period for service under paragraph (2), either before or after that period expires.

Examination of witnesses or evidence by the Court of Appeal

41.4.—(1) Prior to the hearing of a section 76 application, a party may apply to the Court of Appeal for an order under section 80(6) of the Criminal Justice Act 2003 for―

(a)the production of any document, exhibit or other thing; or

(b)a witness to attend for examination and to be examined before the Court of Appeal.

(2) An application under paragraph (1) must be in the form set out in the Practice Direction and must be sent to the Registrar and a copy sent to each party to the section 76 application.

(3) An application must set out the reasons why the order was not sought from the Court when―

(a)the notice was served on the Registrar under rule 41.2, if the application is made by the prosecutor; or

(b)the response was served on the Registrar under rule 41.3, if the application is made by the acquitted person.

(4) An application must be made at least 14 days before the day of the hearing of the section 76 application.

(5) If the Court of Appeal makes an order under section 80(6) of the 2003 Act on its own motion or on application from the prosecutor, it must serve notice and reasons for that order on all parties to the section 76 application.

Bail or custody hearings in the Crown Court

41.5.—(1) Part 19 (Bail and custody time limits) shall apply where a person is to appear or be brought before the Crown Court pursuant to section 88 or 89 of the Criminal Justice Act 2003(492) as it applies to other proceedings in the Crown Court but with the modification set out in paragraph (2).

(2) For rule 19.7 substitute:

Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the Criminal Justice Act 2003, the prosecutor must serve notice of the need for such a hearing on the court officer.

(3) Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the 2003 Act the Crown Court may order that the person shall be released from custody on entering into a recognizance, with or without sureties, or giving other security before―

(a)the Crown Court officer; or

(b)any other person authorised by virtue of section 119(1) of the Magistrates’ Courts Act 1980(493) to take a recognizance where a magistrates’ court having power to take the recognizance has, instead of taking it, fixed the amount in which the principal and his sureties, if any, are to be bound.

(4) The court officer shall forward to the Registrar a copy of any record made in pursuance of section 5(1) of the Bail Act 1976(494).

Further provisions regarding bail and custody in the Crown Court

41.6.—(1) The prosecutor may only apply to extend or further extend the relevant period before it expires and that application must be served on the Crown Court officer and the acquitted person.

(2) A prosecutor’s application for a summons or a warrant under section 89(3)(a) or (b) of the Criminal Justice Act 2003 must be served on the court officer and the acquitted person.

Bail or custody orders in the Court of Appeal

41.7.  Rules 68.8 and 68.9 shall apply to bail or custody orders made in the Court of Appeal under section 90 of the Criminal Justice Act 2003(495) as if they were orders made pursuant to an application under rule 68.7.

Application for restrictions on publication

41.8.—(1) An application by the Director of Public Prosecutions, under section 82 of the Criminal Justice Act 2003(496), for restrictions on publication must be in the form set out in the Practice Direction and be served on the Registrar and the acquitted person.

(2) If notice of a section 76 application has not been given and the Director of Public Prosecution has indicated that there are reasons why the acquitted person should not be notified of the application for restrictions on publication, the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(3) If the Court of Appeal makes an order for restrictions on publication of its own motion or on application of the Director of Public Prosecutions, the Registrar must serve notice and reasons for that order on all parties, unless paragraph (2) applies.

Variation or revocation of restrictions on publication

41.9.—(1) A party who wants to vary or revoke an order for restrictions on publication, under section 82(7) of the Criminal Justice Act 2003(497), may apply to the Court of Appeal in writing at any time after that order was made.

(2) A copy of the application to vary or revoke shall be sent to all parties to the section 76 application unless paragraph (3) applies.

(3) If the application to vary or revoke is made by the Director of Public Prosecutions and―

(a)the notice of a section 76 application has not been given under rule 41.2; and

(b)the Director of Public Prosecutions has indicted that there are reasons why the acquitted person should not be notified of an application for restrictions on publication,

the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(4) If the Court of Appeal varies or revokes an order for restrictions on publication of its own motion or on application, it must serve notice and reasons for that order on all parties, unless paragraph (3) applies.

Powers exercisable by a single judge of the Court of Appeal

41.10.—(1) The following powers under the Criminal Justice Act 2003 and under this Part may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions, namely to―

(a)order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b)order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act;

(c)extend the time for service under rule 41.3(2); and

(d)delay the requirement of service on the acquitted person of an application for restrictions on publication under rules 41.8(2) and 41.9(3).

(2) A single judge may, for the purposes of exercising any of the powers specified in paragraph (1), sit in such place as he appoints and may sit otherwise than in open court.

(3) Where a single judge exercises one of the powers set out in paragraph (1), the Registrar must serve notice of the single judge’s decision on all parties to the section 76 application.

Powers exercisable by the Registrar

41.11.—(1) The Registrar may require the Crown Court at the place of original trial to provide the Court of Appeal with any assistance or information which it may require for the purposes of exercising its jurisdiction under Part 10 of the Criminal Justice Act 2003(498) or this Part.

(2) The following powers may be exercised by the Registrar in the same manner as the Court of Appeal and subject to the same provisions―

(a)order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b)order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act; and

(c)extend the time for service under rule 41.3(2).

(3) Where the Registrar exercises one of the powers set out in paragraph (2) the Registrar must serve notice of that decision on all parties to the section 76 application.

(4) Where the Registrar has refused an application to exercise any of the powers referred to in paragraph (2), the party making the application may have it determined by a single judge by serving a notice of renewal within 14 days of the day on which notice of the Registrar’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

Determination by full court

41.12.—(1) Where a single judge has refused an application to exercise any of the powers referred to in rule 41.10, the applicant may have that application determined by the Court of Appeal by serving a notice of renewal.

(2) A notice under paragraph (1) must be served on the Registrar within 14 days of the day on which notice of the single judge’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

(3) If a notice under paragraph (1) is not served on the Registrar within the period specified in paragraph (2) or such extended period as the Court of Appeal has allowed, the application shall be treating as having been refused by the Court of Appeal.

Notice of the determination of the application

41.13.—(1) The Court of Appeal may give its determination of the section 76 application at the conclusion of the hearing.

(2) If determination is reserved, the Registrar shall as soon as practicable, serve notice of the determination on the parties to the section 76 application.

(3) If the Court of Appeal orders under section 77 of the Criminal Justice Act 2003(499) that a retrial take place, the Registrar must as soon as practicable, serve notice on the Crown Court officer at the appropriate place of retrial.

Notice of application to set aside order for retrial

41.14.—(1) If an acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003 he may apply in the form set out in the Practice Direction to the Court of Appeal to set aside the order.

(2) An application under paragraph (1) must be served on the Registrar and the prosecutor.

Leave to arraign

41.15.—(1) If the acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003, the prosecutor may apply in the form set out in the Practice Direction to the Court of Appeal for leave to arraign.

(2) An application under paragraph (1) must be served on the Registrar and the acquitted person.

Abandonment of the application

41.16.—(1) A section 76 application may be abandoned by the prosecutor before the hearing of that application by serving a notice in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) The Registrar must, as soon as practicable, after receiving a notice under paragraph (1) send a copy of it endorsed with the date of receipt to the prosecutor and acquitted person.

PART 42SENTENCING PROCEDURES IN SPECIAL CASES

Contents of this Part
Reasons for deciding not to follow a guideline or make an orderrule 42.1
Notice of requirements of suspended sentence and community, etc. ordersrule 42.2
Notification requirementsrule 42.3
Variation of sentencerule 42.4
Application to vary or discharge a compensation orderrule 42.5
Application to remove, revoke or suspend a disqualification or restrictionrule 42.6
Application for a restitution order by the victim of a theftrule 42.7
Requests for medical reports, etc.rule 42.8
Information to be supplied on admission to hospital or guardianshiprule 42.9
Information to be supplied on committal for sentence, etc.rule 42.10

[Note. See also

(a)Part 37, which contains rules about the general procedure on sentencing in a magistrates’ court;

(b)Part 44 (Breach, revocation and amendment of community and other orders);

(c)Part 52 (Enforcement of fines and other orders for payment on conviction); and

(d)Part 55 (Road traffic penalties).]

Reasons for deciding not to follow a guideline or make an order

42.1.—(1) This rule applies where the court decides—

(a)not to follow a relevant sentencing guideline;

(b)not to make, where it could—

(i)a reparation order (unless it passes a custodial or community sentence),

(ii)a compensation order, or

(iii)a travel restriction order;

(c)not to order, where it could—

(i)that a suspended sentence of imprisonment is to take effect,

(ii)the endorsement of the defendant’s driving record, or

(iii)the defendant’s disqualification from driving, for the usual minimum period or at all.

(2) The court must explain why it has not done so, when it explains the sentence that it has passed.

[Note. See section 174 of the Criminal Justice Act 2003(500); section 73(8) of the Powers of Criminal Courts (Sentencing) Act 2000(501); section 130(3) of the 2000 Act(502); section 33(2) of the Criminal Justice and Police Act 2001(503); paragraph 8(3) of Schedule 12 to the 2003 Act(504); and section 47(1) of the Road Traffic Offenders Act 1988(505).

For the duty to explain the sentence the court has passed, see section 174(1) of the 2003 Act and, in a magistrates’ court, rule 37.10(9) (Procedure if the court convicts).

Under section 125 of the Coroners and Justice Act 2009(506), the court when sentencing must follow any relevant sentencing guideline unless satisfied that to do so would be contrary to the interests of justice.

For the circumstances in which the court may make

(a)a reparation or compensation order, see sections 73(507) and 130(508) of the 2000 Act;

(b)a travel restriction order against a defendant convicted of drug trafficking, see sections 33 and 34 of the 2001 Act(509).]

Notice of requirements of suspended sentence and community, etc. orders

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

(a)makes a suspended sentence order;

(b)imposes a requirement under—

(i)a community order,

(ii)a youth rehabilitation order, or

(iii)a suspended sentence order; or

(c)orders the defendant to attend meetings with a supervisor.

(2) The court officer must notify—

(a)the defendant of—

(i)the length of the sentence suspended by a suspended sentence order, and

(ii)the period of the suspension;

(b)the defendant and, where the defendant is under 14, an appropriate adult, of—

(i)any requirement or requirements imposed, and

(ii)the identity of any responsible officer or supervisor, and the means by which that person may be contacted;

(c)any responsible officer or supervisor, and, where the defendant is under 14, the appropriate qualifying officer (if that is not the responsible officer), of—

(i)the defendant’s name, address and telephone number (if available),

(ii)the offence or offences of which the defendant was convicted, and

(iii)the requirement or requirements imposed; and

(d)the person affected, where the court imposes a requirement—

(i)for the protection of that person from the defendant, or

(ii)requiring the defendant to reside with that person.

(3) If the court imposes an electronic monitoring requirement, the monitor of which is not the responsible officer, the court officer must—

(a)notify 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

(b)notify the monitor of—

(i)the defendant’s name, address and telephone number (if