The Criminal Procedure (Amendment No. 3) Rules 2017

Amendments to the Criminal Procedure Rules 2015

12.  In Part 49 (International co-operation)—

(a) after rule 49.13 (Overseas confiscation orders) insert—

Giving effect to a European investigation order for the receipt of oral evidence

49.14.— (1) This rule applies where a court is nominated under regulation 35 of the Criminal Justice (European Investigation Order) Regulations 2017(1) to give effect to a European investigation order by—

(a) examining a witness; and

(b) transmitting the product to the participating State in which the order was made.

(2) The court—

(a) must give effect to the order within 90 days beginning with the day after the day on which the court is nominated, unless a different period is agreed between the court, the Secretary of State and the issuing authority in the participating State in which the order was made;

(b) must conduct the examination in accordance with Schedule 5 to the 2017 Regulations;

(c) subject to that, may conduct the examination—

(i) in public or in private,

(ii) in the presence of such other persons as the court allows.

(3) Subject to paragraph (2) and to such adaptations as the court directs, the court must receive the witness’ evidence as if it were given at trial and to that extent—

(a) Part 17 (Witness summonses, warrants and orders) applies to the exercise of the power to secure a witness’ attendance under paragraph 2 of Schedule 5 to the 2017 Regulations as if that power were one of those listed in rule 17.1(a) (When this Part applies);

(b) rule 24.4 (Evidence of a witness in person) applies where the evidence is received in a magistrates’ court;

(c) rule 25.11 (Evidence of a witness in person) applies where the evidence is received in the Crown Court.

[Note. The Criminal Justice (European Investigation Order) Regulations 2017 give effect in the United Kingdom to Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. Schedule 2 to the Regulations lists participating States.

Under regulation 35 of the 2017 Regulations (Nominating a court to receive evidence from a person) the Secretary of State may nominate a court to give effect to a European investigation order by receiving the evidence to which the order relates.]

Giving effect to a European investigation order for hearing a person by live link

49.15.— (1) This rule applies where a court is nominated under regulation 36 or 37 of the Criminal Justice (European Investigation Order) Regulations 2017 to give effect to a European investigation order by—

(a) facilitating the giving of oral evidence by live video or audio link by a person who is in England and Wales in proceedings in the participating State in which the order was made; and

(b) superintending the giving of evidence by that person by those means.

(2) The court—

(a) must give effect to the order within 90 days beginning with the day after the day on which the court is nominated, unless a different period is agreed between the court, the Secretary of State and the issuing authority in the participating State in which the order was made;

(b) must conduct the proceedings—

(i) in accordance with Schedule 6 to the 2017 Regulations,

(ii) subject to that, under the supervision of the court which receives the evidence in the participating State in which the order was made;

(c) subject to paragraph (2)(b), may conduct the proceedings—

(i) in public or in private,

(ii) in the presence of such other persons as the court allows.

(3) Subject to paragraph (2) and to such adaptations as the court directs, the court must conduct the proceedings as if the witness were giving evidence at a trial in England and Wales and to that extent—

(a) Part 17 (Witness summonses, warrants and orders) applies to the exercise of the power to secure a witness’ attendance under paragraph 2 of Schedule 6 to the 2017 Regulations as if that power were one of those listed in rule 17.1(a) (When this Part applies);

(b) rule 24.4 (Evidence of a witness in person) applies where the proceedings take place in a magistrates’ court;

(c) rule 25.11 (Evidence of a witness in person) applies where the proceedings take place in the Crown Court.

[Note. Under regulation 36 or regulation 37 of the Criminal Justice (European Investigation Order) Regulations 2017 (respectively, Hearing a person through videoconference or other audio visual transmission and Hearing a person by telephone conference) the Secretary of State may nominate a court to give effect to a European investigation order by requiring a person to give evidence, under the court’s superintendence, by live video or audio link (described in the Regulations as ‘videoconference or other audio visual transmission’ and as ‘telephone conference’ respectively) in proceedings before a court in a participating State.]

Giving effect to a European investigation order by issuing a search warrant or production, etc. order

49.16.— (1) This rule applies where—

(a) a court is nominated under regulation 38 of the Criminal Justice (European Investigation Order) Regulations 2017 (Search warrants and production orders: nominating a court) to give effect to a European investigation order by issuing—

(i) a search warrant under regulation 39(1) (Search warrants and production orders: giving effect to the European investigation order),

(ii) a production order in respect of excluded material or special procedure material under regulation 39(2), or

(iii) a search warrant in respect of excluded material or special procedure material under regulation 39(8);

(b) a court is nominated under regulation 43 of the 2017 Regulations (Nominating a court to make a customer information order or an account monitoring order) to give effect to a European investigation order by making—

(i) a customer information order under regulation 44 (Court’s power to make a customer information order), or

(ii) an account monitoring order under regulation 45 (Court’s power to make an account monitoring order).

(2) The Secretary of State must serve on the court officer a draft warrant or order in terms that give effect to the European investigation order.

(3) The court must consider the European investigation order—

(a) without a hearing, as a general rule; and

(b) within 5 business days beginning with the day after the day on which the court is nominated, unless a different period is agreed between the court and the Secretary of State.

(4) The court must not give effect to the European investigation order unless it is satisfied that each of the following authorities has had notice of that order and has had an opportunity to make representations, at a hearing if that authority wants—

(a) the relevant chief officer of police; and

(b) any other authority that will be responsible for the execution of the warrant or order.

[Note. Under regulations 38, 39, 43, 44 and 45 of the Criminal Justice (European Investigation Order) Regulations 2017 the Secretary of State may nominate a court to give effect to a European investigation order by means of one of the warrants or orders listed in rule 49.16 and must send that court the order. Under regulations 38(5) and 43(5) the Secretary of State must send a copy of the European investigation order to the chief officer of police for the police area in which the evidence is situated, in the case of a search warrant or production order or, in the case of a customer information order or account monitoring order, to the chief officer of police for a police area appearing to the Secretary of State to be the appropriate chief officer to receive it.

Under regulation 39(5), (6) or 46 the court may refuse to give effect to the European investigation order only if the court is of the opinion that—

(a) the execution of the European investigation order would be contrary to the principle of ne bis in idem;

(b) there are substantial grounds for believing that executing the European investigation order would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998(2));

(c) there are substantial grounds for believing that the European investigation order has been issued for the purpose of prosecuting or punishing a person on account of that person’s sex, racial or ethnic origin, religion, sexual orientation, nationality, language or political opinions;

(d) there are substantial grounds for believing that a person’s position in relation to the investigation or proceedings to which the European investigation order relates might be prejudiced by reason of that person’s sex, racial or ethnic origin, religion, sexual orientation, nationality, language or political opinions.

Under regulation 39(7) or 47 the court may postpone giving effect to the European investigation order if—

(a) to do so might prejudice a criminal investigation or proceedings taking place in the United Kingdom; or

(b) if, under an order made by a court in criminal proceedings in the United Kingdom, the evidence may not be removed from the United Kingdom.]

Application to vary or revoke a search warrant or production etc. order issued to give effect to a European investigation order

49.17.— (1) This rule applies where—

(a) under regulation 41 of the Criminal Justice (European Investigation Order) Regulations 2017 (Power to revoke or vary a search warrant or production order or to authorise the release of evidence seized or produced) the court can vary or revoke—

(i) a search warrant issued under regulation 39(1) of the 2017 Regulations,

(ii) a production order issued in respect of excluded material or special procedure material under regulation 39(2),

(iii) a search warrant issued in respect of excluded material or special procedure material under regulation 39(8);

(b) under regulation 41 of the 2017 Regulations the court can authorise the release of evidence seized by or produced to a constable on the execution of a search warrant or production order issued on an application under rule 49.16;

(c) under regulation 48 of the 2017 Regulations (Power to vary or revoke customer information and account monitoring orders) the court can vary or revoke—

(i) a customer information order issued under regulation 44,

(ii) an account monitoring order issued under regulation 45.

(2) The applicant must—

(a) apply in writing and serve the application on—

(i) the court officer, and as appropriate

(ii) the chief officer of police to whom the European investigation order was sent by the Secretary of State,

(iii) any other person affected by the warrant or order;

(b) demonstrate that the applicant is, as the case may be—

(i) the chief officer of police to whom the European investigation order was sent by the Secretary of State, or

(ii) any other person affected by the warrant or order.

(3) An application to vary a warrant or order must propose the terms of the variation.

(4) An application to revoke a warrant or order or to authorise the release of evidence seized or produced must indicate, as the case may be, that—

(a) the European investigation order has been withdrawn or no longer has effect in the participating State in which it was issued; or

(b) one of the grounds for refusing to give effect to the order obtains.

(5) Where the court—

(a) varies a warrant or order to which this rule applies the court officer must promptly serve a copy of that warrant or order, as varied, on the Secretary of State;

(b) revokes such a warrant or order the court officer must promptly notify the Secretary of State.”; and

(b) amend the table of contents correspondingly.

(1)

S.I. 2017/730.

(2)

1998 c. 42.